海角大神

Many states have laws on the books prohibiting anyone from making disparaging comments about a particular bank鈥檚 financial condition.聽 This sort of talk is thought to be outside free speech because just the slightest rumor can trigger a bank run.聽 Of course, not much of a line needs to develop at the teller window for bankers to get nervous, because they don鈥檛 keep much cash around to satisfy withdrawals.聽 Depositor money is lent out or invested, or in the case of J.P. Morgan, used for speculating in London.

In California, there鈥檚 been an anti-bank run law on the books since 1917 prohibiting a person from spreading false information about a bank鈥檚 condition.聽 In this age of deposit insurance and the FDIC, the law hasn鈥檛 been tested much.聽 But along comes Robert Rogers, who as an ex-employee of Summit Bank posted a rant and rave on Craigslist, saying, 鈥淚 would suggest that anyone that banks at Summit Bank leave before they close.鈥�

Rogers, who served as the bank鈥檚 chief credit administrator and vice president, also took the opportunity to post what American Banker describes as 鈥渧ulgar comments about the bank鈥檚 chief executive officer and her son.鈥�

The bank sued Mr. Rogers for libel, to which the ex credit administrator countered that his speech was protected by the First Amendment.聽 So, the lawyers for Summit pulled out a copy of the 1917 law and claimed his statements should not be considered free speech.

But the appeals court in a 30-page opinion said, 鈥淲e find section 1327 cannot be reconciled with modern constitutional requirements.鈥澛犅� The court went on to say,聽 鈥淲hen analyzed under modern constitutional jurisprudence, the broad provisions of Financial Code section 1327, on their face, impermissibly sweep within their proscriptions speech that cannot be criminally punished.鈥�

The justices said the law is too vague and has too broad a reach, 鈥渁nd said the law lacks a requirement 鈥� included in other statutory restrictions on speech 鈥� that a speaker鈥檚 statement be proven to be malicious,鈥� reports AB.

鈥淚t is a criminal libel statute without a malice requirement, which is designed to prohibit speech based on its content,鈥� the court said. 鈥淚t fails to give persons of ordinary intelligence fair notice of what is forbidden. It sets no discernible limits on what types of speech can be criminalized, and, allowing such free range, it lends itself to arbitrary enforcement.鈥�

Of course bankers and their attorneys are troubled by the decision.

鈥淲hile the First Amendment certainly provides broad protection to analyze and comment on banking matters, and even provide sharp and critical commentary, the U.S. Supreme Court has consistently held that the First Amendment does not give a person a constitutionally protected right to falsely cry 鈥榝ire鈥� in a crowded movie theatre,鈥澛燰. Gerard Comizio, a partner at Paul Hastings said. 鈥淭he real question here is whether attempting to trigger a bank run arguably has a similar impact.鈥�

鈥淭his case has profound implications about the scope of the First Amendment and the use of social media to provide critical commentary on the safety and soundness of particular banks,鈥� said Comizio.

Murray Rothbard explained that there is no such thing as freedom of speech, but instead property rights.聽 Even in the case of falsely yelling 鈥渇ire鈥� in a crowded theater, Rothbard explains,

In this case Mr. Rogers doesn鈥檛 have 鈥渇reedom of the press鈥� to post on Craigslist, but instead, as Rothbard writes,

Bankers are sensitive, and for good reason as Rothbard makes clear,