But this devolution into quibbling risks obscuring the larger point: It’s possible to disagree with much or some of what Nawaz says, and the way he says it (as I in fact do) without concluding he is an anti-Muslim extremist. In its statement, SPLC seemed to agree.
“Although we may have our differences with some of the positions that Mr. Nawaz and Quilliam have taken, we recognize that they have made important contributions to efforts to promote pluralism and that they are most certainly not anti-Muslim extremists,” Cohen said.
The list that included Nawaz became a central bone of contention in a broader debate over SPLC in general. While the fabled nonprofit has long had its critics, many of them hatemongers like Gaffney, the new chorus included sympathetic observers and fellow researchers on hate groups, who worried that SPLC was mixing its research and activist strains. “Has a Civil Rights Stalwart Lost Its Way?” Politico Magazine asked.
Nonetheless, the settlement, and especially its size, are somewhat surprising because SPLC might well have prevailed in court, albeit at great cost. Defamation lawsuits are famously difficult to win in the United States. A plaintiff who is a public figure must show not only that what is written about him is factually untrue, but also that it was published with “actual malice,” which is to say that whoever published knew or suspected it was untrue.
“The words ‘anti-Muslim extremist’ certainly sounds and indeed must be a matter of opinion,” the noted First Amendment litigator Floyd Abrams told me. “The language that someone is an extremist may not in and of itself be a defamatory statement of fact. The argument would be it’s not defamatory—it’s not even a statement of fact!”
Even if Nawaz could prove a factual statement, he would then have to prove actual malice. “If it was a mere overstatement or thoughtless or any of those characterizations, then the defendant would start out in pretty good position,” Abrams said.
Ken White, a First Amendment lawyer and blogger, wrote Monday that the result was troubling. The firm representing Nawaz, Clare Locke, has sued a long list of media organizations. Trump, meanwhile, has repeatedly called for changing libel laws to make it easier to sue the press. While White criticized SPLC for having transformed itself from a bulwark against bigotry into a policeman for political correctness, he said the surrender could set a bad precedent:
The threatened lawsuit appears to be part of a trend of suing the SPLC for its opinions and characterizations. The settlement will embolden that trend. The trend will not stay confined to the SPLC — that's not the way the law works. Especially in such bitterly divided times, suing over opinions is deeply censorious and corrosive of free speech. Nawaz — who has himself been the target of attempted censorship — should know that.
If White’s prediction is correct, that makes the episode all the more disappointing. SPLC’s work is especially important in this moment, as President Trump rolls back civil-rights laws, targets marginalized communities, and offers encouragement to white supremacists. By overreaching in its description of Nawaz, SPLC undercut its own reputation and the noble goal of fighting against anti-Muslim sentiment, and by settling, it risks undercutting free-speech protections at a time when they are already under threat.