From: jim bell <jimbell@pacifier.com>
Date: Thu, 30 Jan 1997 10:39:47 -0800 (PST)
To: Greg Broiles <gbroiles@netbox.com>
Subject: Re: Libel & the 1st Amendment
Message-ID: <199701301837.KAA10112@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 03:22 AM 1/29/97 -0800, Greg Broiles wrote:
>At 10:42 PM 1/28/97 -0600, Jim Choate wrote:
>
>>It has been asserted by at least one member that the 1st Amendment protects
>>libelous or other defamatory speech. 
>
>Defamation is not protected by the First Amendment; but the First Amendment
>limits the application of defamation law in many circumstances. For
>example, the First Amendment requires plaintiffs to prove "actual malice"
>if they are a public official, public figure, or a private person seeking
>punitive damages.

What you ought to explain to us laymen is that the terminology "actual 
malice" dates from the case New York Times vs. Sullivan, and it used a 
definition of "malice" that was not in any dictionary at the time.  

My recollection:

Sullivan was a local hero in a particular area in the south in the last 50's 
(?), gave a speech to a crowd of (?) people who were probably in sympathy 
with segregation.  They proceeded to march.   Later, the New York Times 
claimed (as I vaguely recall it, although it's been years since I read a 
description) that he had instigated a riot.  

Sullivan sued, claiming his reputation had been damaged.  Arguably, it had, 
although it's probably equally arguable that Sullivan had done something 
that would have been looked upon somewhat unsympathetically by 
non-Southerners.  The local (southern, of course) jury found NYT guilty of 
libel, and awarded Sullivan some huge judgment.    (Had the jury been made 
up of northern people, presumably Sullivan would have lost.)


The problem here is that two long-honored principles collided:  One, the 
"free speech" issue, generally tries to guarantee organizations like NY 
Times the right to print the news and the leeway to do so.  The second  
principle that people should be able to sue for libel in a local court, and 
be awarded whatever amount of money the jury declares.  The problem with 
this was obvious, after the verdict:  It, in effect, allowed essentially any 
burg in the country, no matter how backwards, potentially to bankrupt any 
targeted organ of the national news media.  Something had to give.

Unfortunately, the SC screwed up, as usual.  The proper thing for them to do 
would have been to abandon libel law entirely, recognizing that it did more 
harm than good.  But they blew it:  They invented the "actual malice" 
standard out of whole cloth, raising the standard for libel suits by "public 
figures," which is really a rather arbitrary standard.  Don't go to any 
ordinary English dictionary for this "malice" definition; it didn't exist 
before the Sullivan decision, not even in lawbooks.  It was really just a 
rabbit pulled from a hat to try to avoid the collision I mentioned above.  

Side note:  I think that the SC should be unable to re-define ordinary 
English words.  But they try anyway.

Basically, it became harder to sue well-known persons.  However, what really 
happened is that they SC had merely put off the problem for another day, 
because the DEFINITION of a "public figure" was at least as malleable as 
Jell-O.   And oddly, it was eventually revealed that you could be a "public 
figure" with respect to one subject, but NOT a "public figure" on another.  
Etc.

Ironically, now that Richard Jewell (incorrectly identified as Atlanta 
bombing suspect) has sued some newspapers (and his former employer) for 
libel, it seems likely that at least some of those defendants will try to 
argue that merely being named by the government as a criminal suspect makes 
him "a public figure."


BTW, I think that pressing the Richard Jewell incident would be an excellent 
way to derail any sort of claim that the government can obey the law.  
Apparently, they got a number of search warrants based on, essentially, 
nothing, and to rub this in the government's nose would show that the 
so-called "probable-cause" standard for warrants is not followed in practice.











Jim Bell
jimbell@pacifier.com