In Australia, the court adopted an analysis and standard very close to that of the U.S. court in the Sullivan case. In Theophanus v. The Herald, the court concluded that the law"requires no more than that the person who publishes defamatory matter in the course of political discussion does not know that it is false, does not publish recklessly, and does not publish unreasonably, in the sense earlier explained." The court had earlier explained reasonableness as "Whether a publisher has acted reasonably must be a question of fact in every case. It will depend upon the standards and expectations of the community as to whether the allegations needed to be investigated."
The facts of the case were very good for the newspaper defendant. It had published a letter to the editor stating: "If reports coming out of Canberra are true about the alleged behaviour of Dr. Andrew Theophanous, then it is high time he was thrown off Parliament's immigration committee. I have read reports that he stands for most things Australians are against. He appears to want a bias shown towards Greeks as migrants...."
Just as with the ad in the Sullivan case, it doesn't seem that a newspaper would have much of a duty to fact-check things mentioned in a letter to the editor. Further, it appears that the statements complained of were expressions of opinion only. Anyway, the Australian court correctly saw the need to protect political expression from libel suits. The court favorably mentioned the Sullivan case from the U.S.
The English case of Derbyshire County Council v. Times Newspapers involved allegations of bribery and corruption against a town council. The court concluded that "under the common law of England a local authority does not have the right to maintain an action of damages for defamation." Much of the opinion discussed the right of a corporation to sue for libel. In general a corporation does have such a right in England, but a governmental body is different because of the public interest involved. This opinion does not discuss the Sullivan case, but adopts similar reasoning.
Finally we have from Canada the case of Hill v. Church of Scientology of Toronto. the church's attorney held a press conference on the Courthouse steps making allegations against Hill, a crown attorney, allegations which the church's attorney intended to file in a contempt proceeding the next day. At the contempt hearing, the allegations were found to be false and with no merit whatsoever, and Hill then filed a libel action.
The Canadian Supreme Court first found that this was a dispute between "private litigants", and therefore no "actual malice" standard need apply. It was an attack upon a lawyer in the employ of the crown, true, but the attack was on the person's personal character, thereby removing any protection the statements might otherwise have enjoyed.
The court next discussed the "qualified privilege" issue. Discussion of pleadings filed with the court enjoys such a privilege, and the court rejected the idea that just because the pleadings had not yet been filed there was no privilege, as the attorney had every intention of filing them when the court opened up the next day.
However, in looking at the defendant's conduct, the court found it went far beyond any legitimate purpose and therefore defeated the privilege. The court concluded: "While it is not necessary to characterize M's conduct as amounting to actual malice, it was certainly high‑handed and careless and exceeded any legitimate purpose the press conference may have served. His conduct therefore defeated the qualified privilege that attached to the occasion."
Finally the court looked at whether the damages were excessive. It concluded the damages were justified, saying "The circumstances presented in this exceptional case demonstrate that there was such insidious, pernicious and persistent malice that the award for punitive damages cannot be said to be excessive." Interestingly the court looked at all aspects of the case to ascertain the defendants' state of mind, including "a prolonged and hostile cross‑examination of the plaintiff" during the trial.
The Canada case is troubling unless one can properly distinguish it from the others. It was treated as essentially a squabble between two private citizens, removing it from the category of the other cases which involved government conduct. Further, the actual malice of the defendants (both church and attorney for the church were sued), stuck out like a sore thumb all the way through. No apology, no retraction, not anything to indicate any remorse for the damage done to this man's reputation.
This really calls into question the analysis of the U.S. court in Sullivan. It seems that the real distinction should be between governmental and private conduct, not between whether one is a public figure or not. Thus we have the successful suits of Carol Burnett and Tom Cruise, where the allegations complained of involved their private conduct, not anything havig to do with what makes them public figures.
Thursday, March 18, 2010
On Libel Law, Part Three, NY Times v. Sullivan
In this 1964 case the Supreme Court set forth the "actual malice" standard, holding that actual malice is required for a public figure to prevail in a libel suit. Actual malice means the publisher "knew that the statement was false or acted in reckless disregard of its truth or falsity."
The necessity for this new more stringent standard is seen by examining the situation that existed at the time regarding the civil rights movement. At the time of the decision, there were over $300 million worth of libel suits outstanding against news organizations in the South for how they were reporting on civil rights protests. This was having a tremendous chilling effect on reporting.
The plaintff Sulllivan was the Police Commissioner for Montgomery, Alabama. He compained of an ad in the NY Times whivh contained some inaccuracies. Evne though Sulivan was not even mentioned in the ad, he won a $500,000 judgment in an Alabama court. The Times had not printed a retraction, which would have insulated it from punitive damages under Alabama law, because it didn't see how Sullivan was at all affected by the ad.
It should be noted that the facts of the case made it a good one for the news organization side of the case, as the case involved criticism of a public official for his official conduct. Further, the fact that the statements complained of were in an ad rather than in a news story, surely reduces the duty of the Times to check the accuracy of those facts before publication.
Three justices concurred in the result, but would go farther than the majority opinion did. Their position was that "the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses." It was mentioned that criticism of the *private* conduct of a public figure would not enjoy this blanket protection.
It seems that there perhaps should be a three-tiered or even four-tiered approach to this issue, rather than the two-tiered one set up by the majority opinion (i.e., either the plaintff is a public figure or he isn't). The court doesn't define what is meant by a "public figure". I have to agree with the concurring justices, hwoever, that the ability to criticize one's government deserves absolute protection, while lesser protections should be in place for criticism of private conduct.
The necessity for this new more stringent standard is seen by examining the situation that existed at the time regarding the civil rights movement. At the time of the decision, there were over $300 million worth of libel suits outstanding against news organizations in the South for how they were reporting on civil rights protests. This was having a tremendous chilling effect on reporting.
The plaintff Sulllivan was the Police Commissioner for Montgomery, Alabama. He compained of an ad in the NY Times whivh contained some inaccuracies. Evne though Sulivan was not even mentioned in the ad, he won a $500,000 judgment in an Alabama court. The Times had not printed a retraction, which would have insulated it from punitive damages under Alabama law, because it didn't see how Sullivan was at all affected by the ad.
It should be noted that the facts of the case made it a good one for the news organization side of the case, as the case involved criticism of a public official for his official conduct. Further, the fact that the statements complained of were in an ad rather than in a news story, surely reduces the duty of the Times to check the accuracy of those facts before publication.
Three justices concurred in the result, but would go farther than the majority opinion did. Their position was that "the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses." It was mentioned that criticism of the *private* conduct of a public figure would not enjoy this blanket protection.
It seems that there perhaps should be a three-tiered or even four-tiered approach to this issue, rather than the two-tiered one set up by the majority opinion (i.e., either the plaintff is a public figure or he isn't). The court doesn't define what is meant by a "public figure". I have to agree with the concurring justices, hwoever, that the ability to criticize one's government deserves absolute protection, while lesser protections should be in place for criticism of private conduct.
Tuesday, March 16, 2010
On Libel Law, Part Two
We have seen that prosecuting such a case takes a tremendous toll on a plaintiff, regardless of the outcome. You are giving the defendant a chance to prove that the allegations against you are correct, and thus those allegations will receive far more publicity than they had enjoyed originally. You therefore better be darn sure you are in the right.
In light of all this, it seems inconceivable that anyone would ever prosecute such a case, knowing that the allegations were correct. And yet, examples of this are present. In 1895 Oscar Wilde sued the Marquess of Queensberry for libel, the Marquess having accused Wilde of being a sodomite. As the defendant's part of the case was getting started, his counsel was prepared to present a parade of young men with whom Wilde had been friendly. Wilde's counsel accordingly dismissed the case.
But this was not the end of it. The information the counsel for the Marquess had put together was forwarded to the authorities, and Wilde was arrested for sodomy! His first trial ended in a hung jury, but on retrial he was convicted and served two years in prison.
Next we have the Alger Hiss case. Hiss was accused by one Whittaker Chambers of having been a Communist. Hiss denied this, and challenged Chambers to repeat his allegations away from the protected confines of the house unamerican activities committee room. Chambers did so, on "Meet the Press", and Hiss immediately sued for libel.
In order to get a handle on this matter, it is important to keep the timeline in mind. All of the above events happened in August of 1948. On October 15th, the Justice Dept. completed its investigation and determined no charges were warranted. However, in November pre-trial discovery in the libel case revealed more documentation, which was turned over the the Justice Department.
On December 1st, Congressman Richard Nixon (who had been responsible for pursuing the Chambers information in the first place), gets re-interested in the case and meets with Chambers at the latter's farm. HUAC and a grand jury both hear testimony, and on Dec. 15th the grand jury indicts Hiss on two counts of perjury, alleging that he lied when he said he didn't see Chambers after January 1, 1937 and when he said he never turned over any documents to Chambers. Hiss was convicted after his second trial, the first having hung 8-4 for conviction, and he served 44 months in prison.
Our third example is General William Westmoreland, former commander of U.S. troops in Vietnam. He took exception to a 1982 documentary by CBS News, entitled "The Uncounted Enemy: A Vietnam Deception. the title pretty much explains what Westmoreland found objectionable, which was that the top brass in Vietnam was being accused of misrepresenting the enemy troop strengths, especially as it relates to the 1968 Tet offensive. Per Wikipedia, "Westmoreland charged that the investigators asked biased and slanted questions, selectively edited interviews (for example, giving a two-minute excerpt of a 90-minute interview and portraying that selection as representative), and selectively chose persons to interview supportive of CBS's point of view. He also charged CBS with editing interview tapes dishonestly and taking statements out of context. Westmoreland charged CBS with reckless misstatements of evidence and contended these distortions indicated malice."
After four months of trial, Westmoreland abruptly dismissed the case. As I recall, his chief deputy had testified that the CBS allegations were essentially true, and numbers *were* fudged for political reasons. Thus, Westoreland accomplished nothing by his suit; but more than that, he gave way more publicity to the CBS allegations than would have been the case had he left well enough alone.
What is the common thread here among the three cases? I think the common characteristic among all three of these ill-fated plaintiffs is arrogance. None of them could get past their own arrogance and false pride (hubris) to view their situations with any objectivity. I'm sure their attorneys pressed each one hard before undertaking the suit; we know from accounts that Wilde's attorneys certainly did. Wilde assured his attorneys that there was absolutely no basis for the allegations, and if you read the way he answered questions on the stand, his arrogance comes through clearly.
In light of all this, it seems inconceivable that anyone would ever prosecute such a case, knowing that the allegations were correct. And yet, examples of this are present. In 1895 Oscar Wilde sued the Marquess of Queensberry for libel, the Marquess having accused Wilde of being a sodomite. As the defendant's part of the case was getting started, his counsel was prepared to present a parade of young men with whom Wilde had been friendly. Wilde's counsel accordingly dismissed the case.
But this was not the end of it. The information the counsel for the Marquess had put together was forwarded to the authorities, and Wilde was arrested for sodomy! His first trial ended in a hung jury, but on retrial he was convicted and served two years in prison.
Next we have the Alger Hiss case. Hiss was accused by one Whittaker Chambers of having been a Communist. Hiss denied this, and challenged Chambers to repeat his allegations away from the protected confines of the house unamerican activities committee room. Chambers did so, on "Meet the Press", and Hiss immediately sued for libel.
In order to get a handle on this matter, it is important to keep the timeline in mind. All of the above events happened in August of 1948. On October 15th, the Justice Dept. completed its investigation and determined no charges were warranted. However, in November pre-trial discovery in the libel case revealed more documentation, which was turned over the the Justice Department.
On December 1st, Congressman Richard Nixon (who had been responsible for pursuing the Chambers information in the first place), gets re-interested in the case and meets with Chambers at the latter's farm. HUAC and a grand jury both hear testimony, and on Dec. 15th the grand jury indicts Hiss on two counts of perjury, alleging that he lied when he said he didn't see Chambers after January 1, 1937 and when he said he never turned over any documents to Chambers. Hiss was convicted after his second trial, the first having hung 8-4 for conviction, and he served 44 months in prison.
Our third example is General William Westmoreland, former commander of U.S. troops in Vietnam. He took exception to a 1982 documentary by CBS News, entitled "The Uncounted Enemy: A Vietnam Deception. the title pretty much explains what Westmoreland found objectionable, which was that the top brass in Vietnam was being accused of misrepresenting the enemy troop strengths, especially as it relates to the 1968 Tet offensive. Per Wikipedia, "Westmoreland charged that the investigators asked biased and slanted questions, selectively edited interviews (for example, giving a two-minute excerpt of a 90-minute interview and portraying that selection as representative), and selectively chose persons to interview supportive of CBS's point of view. He also charged CBS with editing interview tapes dishonestly and taking statements out of context. Westmoreland charged CBS with reckless misstatements of evidence and contended these distortions indicated malice."
After four months of trial, Westmoreland abruptly dismissed the case. As I recall, his chief deputy had testified that the CBS allegations were essentially true, and numbers *were* fudged for political reasons. Thus, Westoreland accomplished nothing by his suit; but more than that, he gave way more publicity to the CBS allegations than would have been the case had he left well enough alone.
What is the common thread here among the three cases? I think the common characteristic among all three of these ill-fated plaintiffs is arrogance. None of them could get past their own arrogance and false pride (hubris) to view their situations with any objectivity. I'm sure their attorneys pressed each one hard before undertaking the suit; we know from accounts that Wilde's attorneys certainly did. Wilde assured his attorneys that there was absolutely no basis for the allegations, and if you read the way he answered questions on the stand, his arrogance comes through clearly.
Monday, March 15, 2010
Why NASCAR is a Show, Not a Sport
Recent events have solidified my view that NASCAR is *not* a true sport. A few weeks ago the end of the race was extended three (!) different times, so that true racing could occur before the official end of the race. Imagine if this was done in any true sport. It would be unheard of. Let's extend the end of a football game so the fans can see some real action. Ludicrous, of course.
But this is what NASCAR did, extend the end so fans could see what they came to see. In other words, NASCAR admits it is a show, not a sport. The reaction of the drivers was pretty uniform. They all understood that putting on a good show for the fans is important, but they all objected to the three restarts, saying that was excessive.
But now a week ago a truly hideous thing happened. A driver had crashed and was seeking revenge against the driver who he perceived as being at fault in the crash. He took his car back onto the track near the end of the race, more than 150 (!) laps behind, solely for the purpose of wrecking the other driver. He did, and the car went airborne, creating a very dangerous situation as it could have gone into the stands and injured fans. And what penalty did this driver receive? Nothing! NASCAR has announced a "boys will be boys" policy, where it is going to be tolerant of ths sort of thing. Ridiculous!
But this is what NASCAR did, extend the end so fans could see what they came to see. In other words, NASCAR admits it is a show, not a sport. The reaction of the drivers was pretty uniform. They all understood that putting on a good show for the fans is important, but they all objected to the three restarts, saying that was excessive.
But now a week ago a truly hideous thing happened. A driver had crashed and was seeking revenge against the driver who he perceived as being at fault in the crash. He took his car back onto the track near the end of the race, more than 150 (!) laps behind, solely for the purpose of wrecking the other driver. He did, and the car went airborne, creating a very dangerous situation as it could have gone into the stands and injured fans. And what penalty did this driver receive? Nothing! NASCAR has announced a "boys will be boys" policy, where it is going to be tolerant of ths sort of thing. Ridiculous!
Sunday, March 14, 2010
On Libel Law, Part 1
I am working on a funtrivia quiz on libel law, but there is way more information that I can squeeze into a quiz. So I will undertake something of a historical review.
In the olden days, one's personal character was considered his most valuable asset, or, to put it more precisely, one's *reputation* for personal character was the valuable asset. Consequently, when somebody printed something that caused damage to that reputation, then the victim of that damage could sue for libel to recoup what had been taken from him.
It is obvious that one should not sue for libel lightly. It will take a tremendous emotional and financial toll on the person bringing such a suit. Rarely will you come out ahead financially, so the reasons for suing have to be based on principle. Indeed, we often see instances where the plaintiffs are after only vindication. Thus, when Teddy Roosevelt sued a Michigan editor for libel in 1912, for saying he was a drunkard, the editor got up after five days of trial and admitted he was wrong. TR said that was all he was after and asked for the lowest possible monetary award, which turned out to be six cents!
Similarly, when Annie Oakley felt she was libeled by numerous newspapers starting in 1903, she brought a total of 55 lawsuits throughout the country. She spent six years full-time prosecuting these lawsuits, winning or settling 54 of the 55. However, overall, when expenses and lost wages are taken into account, she ended up losing money.
Then we have the more modern cases of Carol Burnett vs. The National Enquirer, and Tom Cruise vs. a London tabloid. Both won their cases, but donated the winnings to charity as their cases were never about the money, which each presumably had plenty of to begin with.
In future posts we will look at instances when libel cases backfired on the ones bringing them, at the public figure standard enunciated in Sullivan v. New York Times, and at how the other English-speaking countries deal with the public figure issue.
In the olden days, one's personal character was considered his most valuable asset, or, to put it more precisely, one's *reputation* for personal character was the valuable asset. Consequently, when somebody printed something that caused damage to that reputation, then the victim of that damage could sue for libel to recoup what had been taken from him.
It is obvious that one should not sue for libel lightly. It will take a tremendous emotional and financial toll on the person bringing such a suit. Rarely will you come out ahead financially, so the reasons for suing have to be based on principle. Indeed, we often see instances where the plaintiffs are after only vindication. Thus, when Teddy Roosevelt sued a Michigan editor for libel in 1912, for saying he was a drunkard, the editor got up after five days of trial and admitted he was wrong. TR said that was all he was after and asked for the lowest possible monetary award, which turned out to be six cents!
Similarly, when Annie Oakley felt she was libeled by numerous newspapers starting in 1903, she brought a total of 55 lawsuits throughout the country. She spent six years full-time prosecuting these lawsuits, winning or settling 54 of the 55. However, overall, when expenses and lost wages are taken into account, she ended up losing money.
Then we have the more modern cases of Carol Burnett vs. The National Enquirer, and Tom Cruise vs. a London tabloid. Both won their cases, but donated the winnings to charity as their cases were never about the money, which each presumably had plenty of to begin with.
In future posts we will look at instances when libel cases backfired on the ones bringing them, at the public figure standard enunciated in Sullivan v. New York Times, and at how the other English-speaking countries deal with the public figure issue.
Wednesday, March 10, 2010
The 2010 Oscars
Back from a two-day trip with my daughter and looking at the Oscar winners announced Sunday night. I can't help thinking about an exchange years ago between Siskel and Ebert. Siskel accused Ebert of being "intimidated by special effects", after he had lavished praise on some movie because of its special effects. With the advances in technology recently, it seemed "Avator" was a shoo-in for best picture, but "The Hurt Locker" won instead. Kudos to the Academy for not being "intimidated by special effects".
Mery Streep also seemed a shoo-in for best actress, and nobody would have conplained had she won. (Her portrayal of Julia Childs was spot-on.) However, the wonderful Sandra Bullcok won instead. She is a total delight, and certainly deserves an award after being ignored by the Academy up till now.
Kudos to the Academy for not presenting all the songs as has been the case in the past. The way everybody has treated the "best song" category as an importnat one on a par with the other main categories (picture, dirctor, best and supporting actor and actress) has always mystified me. Howver, boo to the Academy for having an initial production number, which I thought they had gotten away from.
Again, boo to the Academy for shutting off the microphone of someone trying to get a word in edgewise after his co-winner had hogged the mic for most of the allotted 45 seconds. I for one would like to hear what the winners have to say. If someone goes on and on without any reason to do so, then sure, turn off the mic. But in the normal case, let a person have his or her say.
Mery Streep also seemed a shoo-in for best actress, and nobody would have conplained had she won. (Her portrayal of Julia Childs was spot-on.) However, the wonderful Sandra Bullcok won instead. She is a total delight, and certainly deserves an award after being ignored by the Academy up till now.
Kudos to the Academy for not presenting all the songs as has been the case in the past. The way everybody has treated the "best song" category as an importnat one on a par with the other main categories (picture, dirctor, best and supporting actor and actress) has always mystified me. Howver, boo to the Academy for having an initial production number, which I thought they had gotten away from.
Again, boo to the Academy for shutting off the microphone of someone trying to get a word in edgewise after his co-winner had hogged the mic for most of the allotted 45 seconds. I for one would like to hear what the winners have to say. If someone goes on and on without any reason to do so, then sure, turn off the mic. But in the normal case, let a person have his or her say.
Subscribe to:
Posts (Atom)
