#libel|

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Hopefully I'll be able to make some time to write a post about why this verdict is wrong-headed sometime very soon. Or maybe you can tell me?

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"Hoff, whose normal voice most resembles a yell, says he was simply reporting neighborhood rumors, many of which were either contained in a criminal complaint against Larry Maxwell, the man convicted of fraud, or in the subsequent lawsuit against Moore."

- John Tevlin, in yesterday's Strib column, "Local Blogger's Defamation Trial could have Broad Effect," about the libel trial(s) of "Johnny Northside," (aka John Hoff).

[Reaching for popcorn]

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Lawyer: Amanda Knox's parents indicted in Italy for alleging police abused their daughter | AP

Every once in awhile a story comes along that is a good reminder of how different (dare I say exceptional?) the U.S. is from many other developed nations around the world when it comes to freedom of speech. I think sometimes people assume that if a nation has a democratic system, speech and press freedom are probably protected pretty much like they are here. Not so.

The link above is an example of something that would probably never happen here: a criminal prosecution for libel for somebody who claimed that public officials abused their power or broke the law in executing their duty.

Criminal libel statutes exist in several U.S. states, and in fact prosecutions aren't altogether rare. But for the most part, Americans have decided that civil law provides a suitable remedy when someone libels--i.e. says something that causes harm to the reputation of--somebody else. In other words, if you say I'm a thief or a blackmailer and it ain't true, I sue you, I don't call the cops to come and arrest you.

This is mainly because we've decided that although a person's "good name" is something the government has an interest in helping to protect, it better serves the marketplace of ideas to allow individuals themselves to head to court to decide when and how badly someone's reputation has been harmed, rather than to bring in the heavy hand of government to prosecute the offending speaker criminally.  

Moreover, because of the power they have, we don't allow the cops (or other public officials) to succeed in libel suits as easily as private citizens, because we're profoundly committed to what Justice William Brennan famously referred to in New York Times v. Sullivan as "uninhibited, robust, and wide open" debate on public issues, which "may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." That case involved--surprise!--a Montgomery, Ala. police commissioner's libel suit against the Times for falsely claiming he did some unkind things to black protesters in 1960.

The Court established the rule, still in effect today, that in order to successfully sue for libel, a public official must establish that not only was the statement at issue false, harmful, and clearly applicable to the official, it was also published with "actual malice": knowledge that the statement was false or reckless disregard for whether it was true or not. (A 1979 case, Herbert v. Lando, applied the actual malice standard to criminal libel prosecutions.)

In other words, in an American court, in order for these poor Italian police officers to successfully sue to repair their devastated professional reputations as soft-hearted, civic-minded public servants, they would have to show that Knox's parents identified them personally, and then falsely claimed that they abused their daughter, even though the parents knew that the abuse had not occurred, or at least did not attempt to find out whether it had happened or not.  The point is that it's more important that we have a robust discussion about whether the officers committed the abuse or not than it is that we allow people already in positions of power to use their position to silence that discussion. One last interesting and notable difference is that in Italy, one must be licensed by the government to practice journalism. Presumably had a responsible licensed Italian journalist conducted the interview with Mr. Knox, and not a lowly, unprofessional British newspaper (The Sunday Times), the scurrilous accusations never would have been published in the first place. Because, of course, what right does the public have to discuss Italian police of brutality against foreigners? It's not like it ever happens.