September 20, 2021

Trumping Free Speech


Donald Trump believes that the laws against libel by the news media should be stricter. At a rally, he promised:  “We’re going to open up libel laws and we’re going to have people sue you like you’ve never got sued before.” When questioned on this policy, he said that England has a better approach to libel than we do.

An example of English libel laws causing trouble occurred in 1995, when a Briton named David Irving threatened to sue an American historian, Deborah Lipstadt, who described him as a Holocaust denier. He claimed that her book accused him of being a Nazi apologist, an admirer of Hitler, and a distorter of history and that this was part of a concerted effort to ruin his reputation as a historian.

While in the United States, a public figure like Irving would have to show that Lipstadt had acted “in reckless disregard” of the truth, under British libel law, the burden of proof lay on Lipstadt, the defendant, to demonstrate the accuracy of what she had written.

So a lawsuit, which in the U.S. would not have been practical, dragged on for 5 years (in the process Lipstadt’s attorneys submitted three thousand pages of testimony).

In April 11, 2000, the British Royal High Court of Justice ruled in favor of Lipstadt. The judge hearing the case, Justice Charles Gray, concluded his verdict by declaring that “Irving has for his own ideological reasons persistently and deliberately misrepresented and manipulated historical evidence… that for the same reasons he has portrayed Hitler in an unwarrantedly favourable light, principally in relation to his attitude towards and responsibility for the treatment of the Jews; that he is an active Holocaust denier…”

English libel law caused trouble again for an American, this time journalist Rachel Ehrenfeld, who had claimed in a book that Saudi billionaire Kahlid Bin Mahfouz had funded terror groups.

The billionaire sued her in Britain, and since she did not want to pay large fees in a country that she did not reside in, she did not contest the suit, and so he won by default.

Since Britain and other countries can, in certain cases, get judgements enforced in the U.S. Ehrenfeld saw a gap that she felt should be closed, and she persuaded the New York State legislature to pass the Libel Terrorism Protection Act (also known as “Rachel’s Law”). She also lobbied for the SPEECH Act (an abbreviation for Securing the Protection of our Enduring and Established Constitutional Heritage) which passed the Senate on July 19, 2010. President Obama signed it into law the following month. This law prevents foreign countries with libel laws that would not pass muster in this country from having them enforced here.

In an email, Ehrenfeld tells me she still cannot go to Britain, because the judgment — for hundreds of thousands of dollars in damages and legal fees — would be enforced there. And this despite the fact that her book was neither published nor marketed in Britain.

In a 2010 Smashing Interviews Magazine interview, Ehrenfeld says “…Mahfouz sued more than 45 people before he died last year so he really silenced the media from writing anything about it.”

There has been some improvement in British law (for example, the claimant must show evidence of actual or probable harm, and the defendant can show that the statement was an honest opinion, or that he believed his assertion was a matter of ‘public interest’). Otherwise, the law still says that if you as a journalist make allegations against someone, he can sue you and win without having to prove that the allegations against him are false.

The American view is that there are inevitable journalistic errors if we want to give freedom of expression the “breathing space” it needs. The idea is to allow most speech, including some false statements, to be vetted in the “marketplace of ideas.”

In medieval England, as in other cultures, duels, armed raids and other violent retaliation were regarded as natural, honorable responses to defamation.”  A peaceful alternative was needed, and so the king’s court criminalized political or seditious statements against aristocrats. The law evolved as time went on, but this English notion of criminalizing political or seditious libel was on the minds of those who drafted the U.S. Constitution.

Even in the U.S. there was briefly a law, the Sedition Act of 1798, that made it a crime to write or speak anything “false, scandalous and malicious” against the United States government. If you could prove the allegation was true, you would not be penalized. The Act was attacked as unconstitutional. It expired by its own terms in 1801, but not before it had crystallized the idea that discussion of public matters was guaranteed by the Constitution and that neither good-faith errors nor even libels could overcome this right.

Even with our less restrictive laws, there is much room for improvement. Though most defamation claims are deemed baseless by U.S. courts, the enormous cost a lawsuit imposes and in some cases, the charge of bigotry that goes along with it has stifled legitimate discussion. For example, in 2003, the Council on American-Islamic Relations sued National Review for publishing an allegedly defamatory statement. Though NR retracted the statement, CAIR pursued its suit aiming, in NR’s view, to intimidate and punish the magazine. The court threw out the case for lack of merit, but NR still paid more than $50,000 in legal fees.

In practice, the process is often the punishment. In a case that has already dragged on for five years, NR is already out of pocket at least half a million dollars. (Steyn is also being sued separately.) The case started when columnist Mark Steyn blogged in National Review Online about Michael Mann, a star of the global warming movement. Steyn called Mann’s so-called “hockey stick” graph — which claims that the world’s average temperature remained more or less flat over the past thousand years until it suddenly shot upward around 1900 — “fraudulent.” That word gave Mann an opening, for it suggests Mann knowingly fudged the data. (The charge is rendered plausible given that hackers uncovered emails between Mann and Phil Jones, the head of the Climate Research Unit at the University of East Anglia including one that discussed Mann’s “trick” to “hide the decline [in temperatures].”)

Steyn himself says: “Real scientists do not look to the District of Columbia Superior Court to decide the merits of their science. Dr. Mann does it because he’s essentially a political activist, a political activist who uses science in service of his activism.”

Climatologist Judith Curry writes about Mann: “…if someone disagrees with Mann or criticizes his work, they are called [by Mann] ‘anti-science’, ‘serial climate misinformer’, ‘denier’, etc. Mann referred to me in context of my recent Senate testimony as anti-science.”

So Mann can dish it out, but he can’t take it without going to court.

Because of cases such as this, a new organization, the Free Speech In Science Project, has been formed to offer legal defense to defendants in science and policy cases.

Back to Trump: Would he like to be sued by George W. Bush for claiming that Bush lied to get us to go to war in Iraq? We lose if we suppress speech that in some cases can avert threats to our safety or prevent bad policy.

Ironically, the media itself interferes with its own freedom when for example, out of cultural sensitivity, it describes “jihadist attacks on American citizens at home as ‘work-related accidents’ and, elsewhere, as ‘militant attacks.’” The idea that Islam inspires these attacks is not one that the media wants to spread.

Freedom of speech is not a universal value. Jihadists don’t believe in it, Marxists don’t believe in it, dictators and their henchmen don’t believe in it. Given that it is a core American value, we should be willing to be different than much of the world and accept the tradeoffs that go with it.

Source: American Thinker