It strikes me that Adler has much hostility toward New York Times v. Sullivan, the 1964 case which requires defamation plaintiffs who are public officials to prove that the defendant acted with actual malice. She says, with obvious disdain, that this burden imposed on libel plaintiffs is "by far the heaviest imposed by any judicial system in the world". The actual malice standard includes "knowledge of falisty" of a defaming statement, or "reckless disregard" as to whether the statement was true or false. In turn, a later Supreme Court case defined reckless disregard to include a "serious doubt" as to whether it was true.
Adler strenuously objects to this serious doubt standard, saying that serious doubt is "a sign not of reckless disregard but of its opposite". Her objection to what she calls this "virtually unintelligible formulation" is that any good journalist will normally entertain a "serious doubt" about a story before publishing it.
My own view is that Adler needs to spend some time contemplating the imoprtant roles that freedom of speech and freedom of the press play in our democratic system. Our system relies heavily on the free press to bring us the news. Journlists are our representatives in this repsect. From the time of the groundbreaking 1735 case of John Peter Zenger, a newspaper editor who a jury acquitted of criminal libel charges after only ten minutes of deliberation, the press has been deemed to have a special place in our country. The Founders recognized this by enshrining the press and speech freedoms in the First Amendment to the constitution.
Another thing which jumps out at me upon rereading is that both of these plaintiffs were represented by lawyers working for free. Westmoreland had a 39-year-old attorney who had never tried a jury case before, and Sharon had a lawyer in his mid-70s. Now, there is nothing inherently wrong about a lawyer reprsenting a client for free, and it is an admirable thng if done for the right reasons. But here, all it accomoplished was to tie up the court system for many months, at tremendous expense to the public and to the defendants who had to pay for their legal defense. I am reminded of the infamous Paula Jones suit against Bill Clinton, which went forward only because a conservative law firm offered to represent Jones for free because they hated Bill Clinton. This led to impeachment charges, as the Jones' lawyers colluded with the special counsel, Ken Starr, to trap Clinton into giving false statements.
Every lawyer who Westmoreland and Sharon consulted strenuously urged them not to pursue a defamation case. It was only when the offer for a free attorney came in that they decided to go ahead. The result was that the truth or falsity of the allegedly libelous statements were litigated in federal court for months, when these issues could and should have been argued out in the court of public opinion. In the end, it was obvious that there were untruths contained in the statements, but the statements were not motivated by malice, so the suits failed.
In light of the current state of journalism in 2024, these cases now look like much sound and fury, signifying nothing. Today, in an era of "fake news" and "alternative truths", the statements compained about in these two cases seem innocuous by comparison. And if we take a step back and look at the big picture, the larger underlying truths behind the two alleged libels have emerged. In the Westmoreland case, the underlying truth is that there were many lies told to the American pubic about the Vietnam War, and whether falsifying estimates of enemy troop sizes in 1967 was one of them seems of little relevance. And in the Sharon case, the fact of Israeli killing of innocent civilians has been made obvious in the current war in Gaza, making the allegations against Sharon seem equally innocuous. Neither plaintiff had much of a reputation to protect anyway, making the lawsuits even more pointless than they already were.
Adler demonstrates in her book extreme hostility toward her fellow members of the press. She states that "it was evident that witnesses with a claim to any sort of journalistic affiliation considered themselves a class apart, by turns lofty, combative, sullen, lame, condescending, speciously pedantic, but, above all, socially, and, as it were, Constitutionally arrogant...What was true and false also seemed, at times, to be a matter of almost complete indifference to them. Above all, the journalists, as witnesses, looked like people whose mind it had never crossed to be ashamed.”
Her greatest contempt was reserved for David Halevy, Time magazine's Jerusalem correspondent who was responsible for the story that Israeli Defense Minister Sharon had encouraged the massacre of innocent civilians. She writes that “These were the earmarks of Halevy’s testimony on the stand and at his deposition: a virtual incapacity to give a straight answer to a simple factual question, coupled with an almost complete indifference to what is conventionally understood by 'facts' and to consistency between his own factual accounts or versions from one moment to the next; remarkably frequent use of the words 'clear' or 'very clear', almost invariably in the course of unintelligible, unresponsive or plain absolutely implausible answers...and a kind of bizarre, self-confident, but utterly misguided pedantry.”
Today, sixty years after the Sullivan decision, and forty years after the Westmoreland and Sharon trials, defamation law in the U.S. is alive and well, functioning like it should. FOX News had to pay a $787 million settlement for its clear defamation of a U.S. company, and Rudy Guiliani is being pursued for a $148M judgment against him for defaming two Georgia election workers. And meritless lawsuits are being dismissed before trial, which is also as it should be.
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