Welcome to Defamation Law with Full Circle Kink
Introduce Tornus: pronouns
Want to share a little about my journey
Almost a decade ago: discovered a friend’s history
Spent a long time in an unsuccessful accountability process
Horrified by amount of harm and community’s inability to respond
That launched me into consent & accountability work
Full of righteous fury, going to save the world
It’s been a decade, and I’m still full of righteous fury
But I’ve learned this is harder than it looks
Building the communities we want to be part of will take deep skill
That’s why I’m here today—to share one specific set of skills with you
Our legal advisor is Bruce Johnson from Davis Wright Tremain
Nationally known defamation expert
Could not have done it without his generous assistance
Class has extensive supporting materials with additional details
Printable PDF (page numbers on screen)
Mobile-friendly follow-along guide
We do these as part of our consent ethos
We wouldn’t do kink without explaining the risks
And agreeing about what would and wouldn’t happen
Same thing: this is a class about dangerous areas of the law
You need to understand the risks
You need to understand what we can and can’t offer you
We’ve done extensive research and believe this class is accurate
But we are not lawyers
We have no formal training or credentials that are relevant to defamation law.
This is not legal advice
Going to explain the law and give advice about activism
Only person who can give legal advice is your lawyer
Most important advice I can give you: get a lawyer
Activism is risky and we can’t eliminate the risk
You have to accept the risk if you do this work
We’re providing this class because we think it’s valuable
Disclaim all liability and responsibility
By continuing, you agree to accept all liability and responsibility
We’ve tried to make this class as accessible as possible
But it’s about an upsetting topic
We’ve tried to approach it gently
No graphic discussion of sexual abuse
Hypothetical examples involve yoga instructors injuring people
But might still be triggering
Please thing about self care
Let’s start at the beginning: why is a kink organization teaching defamation law?
And why are you taking it?
Probably here because you do consent work and worried about defamation
Your fears are well-founded
Got a phone call while working on this class
Gonna share the contents of that call with permission
Our community is getting better about consent
But the predators and abusers are fighting back
Defamation lawsuits have become one of the biggest threats to consent culture
Hard to win, but very effective at silencing survivors
If you do any kind of consent activism, you’re at risk
This isn’t a class about how the world is terrible
It’s a class about how to make the world better
Today’s class is in three parts
Together, we can stand up to the predators and abusers
And build the consent-forward world we all want to live in
Let’s do this
What is defamation and how does defamation law work?
Along the way, we’ll cover some basic legal principles
You may remember them from Basic Nerve Safety
We’ll follow along as they learn about defamation the hard way
By the end of the class, they’ll be a bad-ass veteran activist
You may remember our imaginary friend Alex
They had a pretty rough time in our Nerve Safety class
So they decide to slow down: move to the Midwest and take up yoga
They love yoga and become an instructor
Over time they become active in their local yoga community
They see some very good instructors
And some instructors who are teaching dangerous practices
They see students getting injured
In particular, they are concerned about Morgan the Malevolent
Two of Morgan's students reach out to share stories
Alex talks to Morgan about it, but Morgan blows them off
One day they get pissed off and call Morgan out of Facebook
Lots of people share similar experiences
They feel good about what they did
A few days later, Alex gets a nasty letter from Morgan’s lawyer
Alex has defamed Morgan
Morgan will sue them if they don’t make a public apology
Yikes! What now?
Alex gets a lawyer
Smart move, Alex!
Alex is scared and angry and confused.
And they have a ton of questions:
Let’s start with a couple of basic legal concepts
Alex asked if they can go to jail for this
They can’t because defamation is civil law, not criminal law
Two kinds of law: civil and criminal
Morgan is the plaintiff: the person who brings a civil suit
Alex is the defendant: the person who is being sued or prosecuted
Terminology time: a tort is the basis for a civil action
If you injure someone in a car action, that’s an injury tort
Puts a limit on when you can be prosecuted or sued
Generally the more serious the offense, the longer the statute of limitations
For defamation, typically between one and three years
In some cases, the timer starts when you discover the defamation
Lawyer explains that Alex won’t go to prison
The first amendment has limits
If you harm Morgan by making false statements, they can sue for defamation
But Alex told the truth! Morgan really is dangerous!
Ex: spoke to two of Morgan’s students, but said “a bunch of students”
They also quoted some pretty dubious claims about Morgan
But that’s true! They accurately reported what someone said
You would think so, but you’d be wrong
Look, it’s complicated
Defamation is false speech that harms another person
Covers both slander and libel
Defamation has three elements. To win a suit, Morgan has to prove all three:
We’ll start with element #1, falsehood
Falsehood is the heart of defamation: by definition, truth is not defamatory
The details are complicated
To be false, a statement has to be verifiable
Generally, a statement is not considered false if it is substantially true
The impact is true, even if the details are not exactly true
Example: saying someone had a life-size Lego sculpture of Ayn Rand in their bedroom, but actually made of Mega Bloks
Be careful here
Hyperbolic statements are so extreme they are understood to be rhetorical, not factual.
“Morgan can injure a student just by looking at them”
Question:
Surprise! Yes, it is
If you aren’t certain about the factual accuracy of something, safer to link to it
Foundational principle of consent work:
Turns out that isn’t a foundational principle of the US legal system
How do you ethically and prudently navigate that contradiction?
Not super relevant to us—details are in the handout
Neutral report privilege: protects media when quoting prominent sources
Fair report privilege: protects quoting official government proceedings including court records
Very important, will talk about it in detail later
Pure opinions are not defamatory
“I think Morgan is an unsafe teacher”
One quick note for now: can’t say “it is my opinion that Morgan is a felon”
OK, so maybe Alex exaggerated a few things
But element two is fault, and Alex wasn’t at fault!
They did a good thing by calling out a dangerous instructor
Since defamation needs all 3 elements, are they off the hook?
Once again, the law is complicated
“Fault” doesn’t mean what you think it means
Civilian definition: you did something bad
Legal definition: you were careless, or maybe reckless
Negligence: you should have known what you said was false
Actual malice: you knew it was false and said it anyway
or you acted with reckless disregard for the truth
Much easier to prove negligence than actual malice
So Alex’s lawyer will argue for actual malice standard, not just negligence
Apologies: this is gonna get complicated
Depends on the situation
Starting point is what kind of person Morgan is
Public figure: well-known, life is of public interest: major celebrity
Private figure: normal person, with an expectation of privacy
Limited purpose public figures
Is Morgan a limited purpose public figure as a yoga instructor? Probably not
Is Alex a limited purpose public figure as a yoga safety activist? Maybe
Doesn’t mean what you think
Legal term for protection that applies to a statement
Two kinds:
Key strategy: arguing that Alex’s statements had qualified privilege
Element three is harm, which is clearly present
Alex said Morgan was dangerous
Morgan lost half their teaching gigs
Alex clearly harmed Morgan
So we won’t fight this one
But if we lose the case, we will fight about the amount
Legal term: specific harm suffered (though can be emotional harm)
Example: Alex says Morgan has three eyes
You will fight hard on falsehood and fault, but harm may be tough
Damages are court-ordered compensation
Certain specific kinds of defamation assume harm: no proof required
Including:
In general, defamation-type issues will result in defamation cases
But you may occasionally encounter a few other torts
These are all fairly rare
Doesn’t require falsehood: misleading presentation is enough
Example: illustrating a story about accidents with a photo of Morgan
Also doesn’t require falsehood
Published information that was:
Consent violations are likely of legitimate public interest in #metoo era
But we don’t have definitive precedent
Extortion is a serious crime
Obtaining something of value via coercion
Blackmail is a specific kind of extortion, usually covered by the same law
Be careful about extortion: either party could stumble into it
So did Morgan commit extortion when they threatened to sue Alex?
No: litigation privilege protects statements that are related to litigation
So “I will sue you unless you issue an apology” is protected
Good intentions, but poor wording, and pulled in some questionable content
Outcome of a court case is uncertain
Certain to be expensive and unpleasant
They want a public apology and retraction
They want the names of their accusers
They don’t feel like they have a choice
They tell Morgan to fuck right off and prepare for a suit
A week later, when Alex is making dinner, their doorbell rings
A nice person is at the door with a big envelope for them
The envelope does not contain a present from their aunt
It contains legal documents that initiate a lawsuit
The person is a process server
Alex has been served with a lawsuit
In this section, we’re going to follow Alex through a lawsuit
Let’s talk about how lawsuits work
The details will vary from state to state, and from case to case
But here’s a rough outline of the beginning of a lawsuit
Important early question: where does the case get heard?
Often obvious, but sometimes not, especially online
Determines what laws apply
Trials are terrible: cost is $10,000 or possibly much more
Time can be months to years
Enormous stress, collateral damage
Can you avoid a trial?
Many cases don’t actually go to trial, which is generally best all around
Four common options:
Formal process for ending a lawsuit
Might be court-ordered
We’ll get to in a bit
Your lawyer can advise you about
Do trials produce justice? Meh
If you can afford justice, you have a fair shot at it
But you’ll still be out a huge amount of money
If you can’t afford justice, you probably won’t get it
Alex knows all about trials from watching TV
Very exciting: surprise revelations, shouting and pointing fingers
That’s exactly how it isn’t going to go
Alex is surprised to discover that it takes more than a year to get to trial
The year is long and grueling, with numerous legal maneuvers
During that time, they are deposed and have to answer a lot of questions
Becomes clear that Alex was consequentially careless
Also, Morgan’s lawyer isn’t very nice
Deposition is mildly traumatic
Their lawyer makes Morgan disclose past incidents
Becomes clear that Morgan has negligently injured people
Alex’s experience is not uncommon: this can drag on forever
By trial, probably have a good idea how it’s gonna go
Most important pre-trial part
Can reveal super important information
All kinds of information can potentially be subpoenaed
Expect the other side to dig for damaging information
Expect them to find some
If it doesn’t exist, they can’t discover it
Many corporations have automatic email deletion for this reason
Be careful what you put in writing or email
Voice conversations are much safer
Legal perspective: secrecy is safest
Moral perspective: being open and transparent may be more ethical
How do we balance those two things?
Entirely possible they will seek profoundly inappropriate information
Cases where they sought extensive info on sexual history
Cases where they sought photos of defendant having sex
Purely for the purpose of humiliating the defendant
Shouldn’t be, but it sometimes is
After more than a year, just a couple of days in the courtroom
Alex has to testify about some awkward things
Morgan takes the fifth and refuses to testify
Ultimately the court rules in Alex’s favor
Alex is vindicated and doesn’t have to pay damages
But still out an enormous amount of money
Typically 1 day - 2 weeks
Lays out findings and damages
Only if something was mishandled
Morgan taking the fifth isn’t that unusual
Aware of cases where exactly that happened
Or other revelations: one plaintiff had extra-marital affair
Important information can be discovered and put in the public record
People can be compelled to testify / produce evidence
That information can be used against people
In some cases, can support criminal charges
Usually not possible
Hard. Not possible in WA.
Hard.
Your insurance might cover defamation
Be careful: it likely doesn’t cover “intentional” defamation
This is one of my favorite parts of the class
A while ago, companies began to notice a problem
“People are saying there are rats in our hamburgers”
Option 1: use beef instead of rat
Option 2: sue them
They went with option 2
Sound familiar? Different sociopath, same decision tree
Became an increasing problem
Noticed the problem and took action
Named it SLAPP: Strategic Lawsuit Against Public Participation
Intended to short-circuit frivolous lawsuits
For a suit that has no chance of succeeding:
It’s cheap, fast, and effective
Great tool if it’s applicable to your situation
Caveats:
1: It’s a powerful tool against abusive lawsuits
2: It’s a great story
People noticed a problem with abusive lawsuits and took action
That’s what we’re doing today
That was a rough ride
What seemed like a pretty simple call out turned into a major ordeal
They spend time reflecting and decide two things:
So they meet with their lawyer proactively to figure that out
We’ve talked about what the law says
Now let’s talk about how to navigate that terrain
We call that Risk-Aware Activism, in reference to RACK
In the kink world, we do a lot of things that have some risk
For example: suspension bondage
RACK and Risk-Aware Activism share 3 pillars
Suspension: have to understand how common & severe nerve injuries are
Activism: you have to understand the risks associated with defamation suits
Suspension: know how to detect and respond to early nerve damage
Activism: know how to craft safer statements
Suspension: some people take a lot of risk, surgeons take much less
Activism: some people are OK getting outed and sued, some aren’t
If you do this work, you’re likely to receive threats
Can be scary and confusing
It’s helpful to make a plan before it happens
Soon after the lawsuit, they notice that Chris the Callous is causing injuries
They talk to a few people injured by Chris
Soon after, they get a nasty email from Chris:
“Any further contact with my students will be considered harassment and I will have my lawyer file suit against you.”
So what now? Is Alex about to go through another lawsuit?
They talk to their lawyer: Chris doesn’t have a leg to stand on
So Alex tells Chris to fuck right off and cuts off contact
Remember: if you’re not sure, see a lawyer
I get legal threats from time to time, have developed a system for assessing
Here’s what I look at
The more specific, the more likely it is to be actionable
Have you said things you shouldn’t have?
Take a hard, objective look at what you said
From a legal perspective, not a moral one
Cold, hard reality: finances
Reputation
Trauma
Legal name in public records
Discovery: what facts might come out during trial
I feel comfortable blowing off casual nonsense
If it’s serious or I’m not sure, I see a lawyer
If it’s a serious threat, get a lawyer and do what they say
If you’re not sure, ask a lawyer
In many cases, it’s best to immediately and permanently cut off all contact
This is standard procedure in the corporate world
Because you threatened to sue me, I am unable to have any further contact with you except through counsel. If you need to communicate with me, your lawyer may ask me for my lawyer’s contact information.
Be crystal clear about what’s happening here
A bully is trying to intimidate you
“You might want to watch your back” is a pseudo-deniable threat of physical violence
“You might want to get a lawyer” is a pseudo-deniable threat of legal violence
Remember how bad lawsuits are?
This person is threatening to do that to you
Don’t put up with it
Do you really have the right to not talk to abusive people?
Yes you do
Litigious bullies are dangerous to be around
Protect yourself and your community by showing them the door
Yes, you have the right to do that
We’ll return to this topic in module 5
Our advice is very simple: immediately get a lawyer and do what they say
Move quickly: the response deadline can be short
What if you can’t afford a lawyer?
You’re in a tough spot and we are sorry we don’t have good advice
There is a profound injustice here—we see it but can’t fix it
“My lawyer has advised me not to comment on pending litigation”
Don’t talk about lawsuits—seriously, just don’t
Why not?
Because it’s critically important to pick a strategy and stay on message
Seemingly innocent offhand remarks can undermine your strategy
Alex keeps digging into what’s going on with Chris
It becomes clear that Chris is another problem instructor
They’re lazy and careless and push people too hard
And their students are getting injured
Alex decides they want to do something about it. But what?
They decide they want Chris to stop teaching
Chris doesn’t have their own studio, so cut them off
Alex is going to write a letter to all the studio owners
So they meet with their lawyer again
Come up with best practices for making statements that:
Statements are a very powerful tool
But they are intrinsically high risk
Let’s look at strategies for managing that risk
Does it really have to be a public call out?
You can often achieve your goals through private conversations
Much less chance of retaliation
Private is safer than public
Voice is safer than written
This is the most important thing
It’s a moral imperative and also your strongest defense
Understate, don’t exaggerate
Obviously, also a moral imperative
And it makes your writing more persuasive, which is the point
And it’s a better look in court
And this is a really powerful tool for finding and fixing weak parts
This isn’t magic, but it’s a powerful tool
But there’s a tradeoff: may be less informative and less persuasive
Pure opinions are not verifiable facts, so they can’t be defamatory
You can’t turn a fact into an opinion by saying “it is my opinion that…”
We are firing Morgan because we feel they do not meet our safety standards.
We are firing Morgan because we lack confidence in their safety practices.
We are firing Morgan because they did not respond appropriately to Blair’s injury.
This is really important and should be standard practice
We always do this
Go through your statement looking for anything that could possibly be challenged
In the process, document your basis for everything
Much better to have a lawyer do it
But you can do it yourself if you must
A single carefully prepared statement is much safer
Off the cuff remarks are dangerous
Say it once and be done
You don’t have to do something every time someone is wrong on the internet
We want to be part of vibrant, safe, consent-forward communities
So how do we get there?
Here’s one plan:
That’s a terrible plan and it hasn’t worked
So we need a different plan
The rest of this class will focus on three strategies that can help get us there
These are simple, concrete, and don’t require great effort or bravery
Focus is on defamation, but this is part of a larger consent strategy
Local venues cut Chris off
They’re horrified, plus they don’t want the liability
For a while, the matter seems to be settled
But Alex hears from a student that Chris is defaming them
They’re furious and want to strike back
Let’s sue them!
But they start to have second thoughts
They’ve been working on a yoga instructor code of conduct
It says you can’t use defamation lawsuits to silence critics
But this is different! Right?
An interesting thing happened at The Hague in 1899 and 1907
A bunch of countries create the Hague Conventions / rules of war
Among other things, they banned the use of poison gas during war
Why? Aren’t there times when it would be useful during a just war?
There is no viable treaty that only allows them in good situations
The only viable treaty prohibits them completely
Some weapons are especially horrific or harmful
We give up a tiny bit of good in exchange for eliminating a lot of harm
The first version of this class had guidelines for ethical lawsuits
Based on further experience, I’m walking those back
I now believe we should treat defamation lawsuits like poison gas
New norm: we don’t use defamation lawsuits and we punish those who do
Are there ever cases when defamation suits can do good?
Yes, but they’re rare compared to the abuse
And even good suits cause a lot of collateral damage
So how do we do this?
Obviously we can’t change the law
But we can take action within our communities
If you’re a venue owner or producer, don’t hire people who use them
If you’re a student, don’t take classes from them
We’ll get into the details in just a minute
Making progress
But everything always turns into a Facebook flame war
And retaliation is a real problem
It’s a closed group for yoga studios
Discuss insurance, equipment, and instructors
Centralizes all the discussions
Discussion is more open and more productive
Keeps things private from bad actors, reduces retaliation
Also: Common Interest Privilege
Powerful tool for certain kinds of work
Several kink groups are already using this
Protects conversations that are:
Grants qualified privilege to those conversations
(So abusers have to prove actual malice, not just negligence)
Consider using this when appropriate
Never applies to public discussion or call out
Helping to improve quality of instruction
But Alex isn’t done yet
Still struggling with 2 problems
1: Takes too long to identify dangerous instructors
Especially if they hide behind defamation suits
2: New students don’t know who’s safe
MYE is a closed group
Maybe Alex can kill 2 birds with 1 stone
Simple set of screening questions for studios and students
Needs to be:
Can’t ask if you’ve ever had an injured student
Can’t ask if your injury rate is > 2.5 per 1,000 hours
Can’t ask if you were reckless
Have you ever used a defamation suit?
That seems clearly wrong
And violates students’ right to give informed consent
But what else?
Alex and some friends sit down to figure it out
Short, simple set of questions with clear answers
That surface important information about educators / leaders / play partners
Why is that important?
If you’re hiring a kink educator, you want them to be ethical and good
You need to make an informed decision about whether they are
If they’ve been convicted of rape, you need to know that information
Maybe it’s OK, but you need to make an informed decision
Students have a reasonable expectation that instructors are good & ethical
If there are serious doubts, they have a right to that info
So they can make an informed decision and give informed consent
Current system relies on survivors speaking up, often at great risk
By surfacing some information, this reduces the need for that
Reduces direct confrontation, keeps everyone safer
All too often: venues make decisions based on critically incomplete information
Hiring Morgan: we don’t care about their crazy lying ex
First thought: you kinda had it coming
Second thought: this could have been prevented
It’s broken into 3 sections
There are subtleties and nuances that are covered in the handout
The criminal justice system is a complicated topic
Many harmful actions don’t result in convictions
Many convicted people are innocent or rehabilitated
For this to work, the questions need to have clear, objective answers
These are not automatically disqualifying, but they are relevant
These questions aren’t perfect, but they are much better than nothing
Happens all the time
Just because a venue banned you doesn’t mean you’re disqualified
But it’s a conversation we need to have
Why are defamation suits on here?
I think by now you know the answer
I want to flag something interesting about these questions
They weren’t designed with any specific person in mind
But they catch most of the really bad actors I know of
This is not a guaranteed way to flag every harmful person
And it’s far from perfect
But it will alert you to many of the worst actors
This is very new and still rolling out
But I’m excited about it
I know this has been a lot of technical information
And a lot of hard topics
I appreciate your time and attention
We’re a Seattle-based kink education group
All kinds of topics, but especially bondage and deep technical dives
Perhaps you’d like some of our other classes
We teach as an act of service to our community
All our class materials are free: please steal them
I hope you’re feeling a couple of things right now:
That’s really the most important thing I hope you take from this
Together, we have to power to make the world a better place
I look forward to fighting the good fight with you