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