From: Greg Broiles <gbroiles@netbox.com>
Date: Sat, 1 Feb 1997 16:11:15 -0800 (PST)
To: cypherpunks@toad.com
Subject: Libel, Times v. Sullivan
Message-ID: <199702020011.QAA01095@toad.com>
MIME-Version: 1.0
Content-Type: text/plain



Someone (Igor?) suggested I said that libel can't be criminalized. I don't
think that's correct, but I may have been unclear. I haven't researched the
question and can't call to mind a case directly on point, but my hunch is
that states may criminalize libel, but a conviction would require that the
state prove, beyond a reasonable doubt (because it's a criminal case), and
that the defendant acted with actual malice (because the state is seeking
to punish speech, and punitive damages in civil cases require proving
actual malice). "Actual malice" means that the defendant said something
s/he knew was untrue or recklessly disregarded the truth of what s/he said.
(This excludes, for example, an "honest mistake" about what's true.) _Times
v. Sullivan_, the case which introduced the actual malice standard,
discussed Alabama's criminal libel statute - so the Supreme Court, in the
mid 60's, didn't seem to have a problem with criminalizing libel. I can't
seem to find a criminal libel statute in California; and if I remember
correctly the Oregon Legislature contemplated but did not pass one during
its last legislative session. 

Also, people interested in _Times v. Sullivan_ and the interplay between
defamation and the First Amendment might find "Make No Law: The Sullivan
Case and the First Amendment" by Anthony Lewis (ISBN 0-697-73939-4) of
interest. The decision itself is online at
<http://www.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=376&invol
=254> - the factual summary of the Sullivan case posted here was not
correct, and the first few pages of the opinion provide a description of
the underlying facts.

Since we've now got Jim Bell arguing that it's obvious that a free and open
society must tolerate anything which might be defamatory, and Jim Choate
arguing that it's obvious that a free and open society cannot tolerate
anything which might be defamatory, I think I'm going to wander away from
this discussion confident that the answer is, at least, nonobvious. :)


--
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