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> All of that is true for those offenses, but it is not true of speech. I believe this is not the case when the plaintiff can show actual malice. > The rule o

• lolinder 3y ago
  Again, the "extreme circumstances" called for ratios on the order of 500:1. This is 2000x larger.
  • elil17 3y ago
    Perhaps you're basing that on TXO v Alliance? The specific ratio for TXO (which happened to be 526-to-1) does not paint the full picture. Consider two things: 1. TXO does not provide a hard-and-fast rule on a maximum ratio of compensatory to punative damages. Rather, the justices say that "It is appropriate to consider the magnitude of the potential harm that the defendant's conduct would have caused to its intended victim if the wrongful plan had succeeded, as well as the possible harm to other victims that might have resulted if similar future behavior were not deterred." 2. TXO further limits the mandate of due process review of punitive damages by saying that the jury does not have to be wholly accurate in their assessment of punitive damages but rather that courts should ensure their award would not "jar one's constitutional sensibilities." If a jury might reasonably think that the damage to Mann could have been about $1m if the defendant had successfully discredited him in, say, the eyes of his employers, and if the jury was given proper instructions, that is sufficient to uphold their award under TXO. Further due process review should consider these questions, not whether the punitive damage/compensatory damage ratio is over some arbitrary threshold.
    • lolinder 3y ago
      TXO is one of several cases I'm referring to where the 500x number came into question. But the other way in which TXO doesn't paint the complete picture is that it is not a defamation case, and in the US we much more cautious about preemptively punishing speech (and about discouraging speech with risk of liability) than we are about other types of torts. The ratio here isn't just large, it's completely off the charts, and an off-the-charts ratio on a speech case isn't going to fly, nor do I believe it should.
      • elil17 3y ago
        You're presenting two claims here: 1. The judiciary makes some distinction between a 500-to-1 and a 1,000,000-to-1 ratio. 2. Speech cases are somehow specially protected from high ratios between punitive and compensatory damages. I know of no evidence in favor of the first point. Your second point is patently false because TXO is about speech - it's literally a disparagement case.
        • lolinder 3y ago
          > I know of no evidence in favor of the first point. Do you know of any case where a ratio higher than 10000x was ever tested? Because there have been several that were tossed out as disproportionate at a much lower ratio than that. > Your second point is patently false because TXO is about speech - it's literally a disparagement case. It was a case of negotiating in bad faith by slandering a title, and the damages were awarded on the basis that TXO had engaged in similar nefarious behavior across the country while negotiating other deals. That's substantially different in character from a series of unsavory opinion pieces, and within the realm of types of speech that we typically do regulate—it's more akin to fraud than it is to personal slander/libel. From the ruling: > [T]he record shows that this was not an isolated incident on TXO’s part—a mere excess of zeal by poorly supervised, low level employees—but rather part of a pattern and practice by TXO to defraud and coerce those in positions of unequal bargaining power.