From: Jim Choate <ravage@einstein.ssz.com>
Date: Thu, 30 Jan 1997 20:12:07 -0800 (PST)
To: cypherpunks@toad.com
Subject: Re: Libel & the 1st Amendment (fwd)
Message-ID: <199701310413.WAA00226@einstein>
MIME-Version: 1.0
Content-Type: text



Forwarded message:

> Date: Wed, 29 Jan 1997 10:46:57 -0500 (EST)
> From: Declan McCullagh <declan@pathfinder.com>
> 
> * The 1st Amendment does protect some lies.

No, it protects speech. The Constitution is meant to protect citizens from a
priori constraints on their speech, not the results of the content ex post
facto.

It is clearly not in the best interest of society to limit opinions or
fiction.

> If I say "Jim Choate is a
> Venusian albatross," the statement is probably (?) a lie,

No, for it to be a lie there must be a potentiality of its truth. A nonsense
statement which happens to fit the syntactical rules of a language wouldn't
qualify.

A more apt situation would be, "Hey, <some person>, I saw <your name> in a
public restroom blowing the President's pink torpedoe and <your name> was
begging for more!". The statement should have to be transmitted to
<some person> without the permission of <your name>.

The legal standard should be that if you make statements purported to be
true about a third party without their prior consent you should be held to
a minimum standard of evidence demonstrating the actuality of your statement.

A democratic society should have no tolerence for libel, slander, or other
forms of lies.

> but I doubt
> you'll prevail in a libel suit. What damages do you have? That's the key,
> I believe -- the statement has to lower you in the opinion of others.

Which is exactly one aspect of the problem. Wrongs should not be based on
quantity or opinion. By focusing on what others think trivializes the issue
at hand, a untruth about a person has been passed off as a truth.

> * Many 1st Amendment experts don't believe in the legal concept of libel. 
> It is, they say, a rich man's game

Exactly, instead of equal protection under the law we have a specieocracy.

> -- if I'm libeled by the NYT, I'm
> probably not going t be able to sue them, but Donald Trump can. Moreover,
> if I don't have the resources to sue but the statement is libelous, it
> creates a *presumption* in the minds of the readers that the article is
> certainly true. (If it were not, I would have sued, right?) 

Another good example of why our system is broke.

> * The concept you may be searching for is consensual speech, which I
> believe a society should tolerate. Libelous speech isn't consensual,
> though obscenity is.

There is no such thing as 'obscenity' just as there is no such thing as
'community standard'. These are the results of mental masturbation to
justify some power freaks alterior motives.

No, what I should be permitted to say should not rest on what others may
permit. If so then I should have a say in what they can say, which means I
have a say in what they can say about what I can say, ... (got it yet?)

What we need is a fundamental change in the legal system which focuses on
first principles and results, not social status or wealth or the potential
for gain.

Perhaps what we need is a legal system where both the defence and
prosecuting attornies are selected by lot. We already have such a system
applied to the defence. If it is considered sufficient for a defence it
should qualify as sufficient for prosecution. Each practicing attorney would
receive a stipend allocated by the appropriate legislative body. The court
and police (who should represent the people in general) would provide both
parties the results of any tests and equal and simultaneous access to all
evidence. If a person wants additional legal council they can buy it from
their own pocket but the attorney is limited to act only as a adjunct to the
appointed attorney (ie they would not be allowed to speak in court).

In civil cases the plaintiff should place a bond, set at some percentage of
the maximum permissible award, at the time the case is filed. This would at
least cover the general costs of the court and limit nuisance cases.


                                                 Jim Choate
                                                 CyberTects
                                                 ravage@ssz.com