Justice Scalia: reflections on New York Times v. Sullivan

First Amendment Center ^ | October 11, 2011 | Ken Paulson

[patlin]

And so as long as an unconstitutional injustice suits the establishment, they will support it to know end ... yes, hypocrisy knows no bounds when it comes to keeping the establishment's status quo, by going after the one candidate who is actually on the side of the constitution's 1st Amendment limits.

[vbmoneyspender]

If anyone is interested in what the United States would be like if we adopted Trump and the poster's position on limits to the 1st Amendment, then look to Britain. It is very easy in Britain to sue people for saying things you don't like and as a result Britain has become a magnet for defamation suits by rich plaintiffs like the Saudis.

Rachel Ehrenfeld never set out to become the face of this issue.

"I just set out to write the truth, to expose those who funded terrorism," she says.

Ehrenfeld runs a think tank in New York called the American Center for Democracy. In 2003, she wrote a book called Funding Evil: How Terrorism is Financed, and How to Stop It.

The book accused a wealthy Saudi businessman of funding al-Qaida. The businessman, Khalid bin Mahfouz, sued Ehrenfeld in a British court.

"I did not live in England, I do not live in England, the book was not published there, so why not come and sue me in the United States?" she asks.

The reason is simple.

"English laws are much more favorable for someone looking to protect their reputation," says Jenny Afia, a lawyer in London who often represents people making libel and privacy claims.

Ehrenfeld's case was an example of "libel tourism," where someone brings a libel claim in a country where he is most likely to win. Often, that country is Great Britain.

"Crooks and brigands from around the world come here to launder their reputations, where they couldn't get exculpation in either their home country or indeed in the United States of America," says Mark Stephens, a London lawyer who often represents media companies in these cases.

In American courts, the burden of proof rests with the person who brings a claim of libel. In British courts, the author or journalist has the burden of proof, and typically loses.

"So you've got the rich and powerful shutting down and chilling speech which is critical of them," says Stephens.

[patlin]

It just boggles the mind how so many here say they are for the constitution, yet reject the notion that anyone should be held responsible for damaging another person’s reputation via their pen/mic. This as absurd! And it is the reason the word “conservative’ no longer means what it did when the 1st Amendment was adopted, not, the word ‘conservative’ is speeding head first into the cesspool of socialist liberalism.

[erkelly]

So up until 1964, the press could be held responsible for publishing libel. Then in the early 1970s, Watergate happened, not only was a decent man hounded from office but, worse, the war in Vietnam which we had won on the ground, it was lost by this lying 5th column in the press. Ever since, this lies have been told about so many many many decent people, good solid patriots who believe in the constitution and personal liberty, and recognized the communist enemy on the left for what they were. The press has almost completely destroyed fair elections with their lying ways. Donald Trump is right, let us address this issue of libel by the press, and do something about it. The press can still lie if they wish, but let them pay for it, and let them be exposed in courts of law for their dishonest and manipulative ways! This one more thing we must do if we are to save our country, we must compel our press to be honest! The constitution is not a suicide pact.

[vbmoneyspender]

I like free speech. That’s why I live here and not in Britain or Canada where there is no 1st Amendment.

[patlin]

I'll ask you the same as I asked another ...

What part of integrity in media do you not understand? Without integrity, the 1st Amendment means nothing ... oh, wait, that is what we have now ... the 1st Amendment has been usurped and you can’t even see it!!!

[vbmoneyspender]

Did you read the example I sited to you of what happens when you shift the burden of proof on libel from the plaintiff to the defendant? In the example, the Saudis sued a small-time author who wrote a book accusing the Saudis of funding Al Qaeda? Is that the kind of United States you want to live in where rich Saudis are able to shutdown debate by using expanded libel laws. Because that is how it will be if Trump's way becomes the American way on libel law.

And by the way, when you expand the reach of the libel laws, it won't be the big media operations that suffer. They have plenty of money to defend themselves in court. It is the little guy who will suffer because he or she will lack the financial resources to fight drawn-out legal battles in court.

[vbmoneyspender]

What part of freedom do you not understand? The political sniping that goes on today is a cakewalk compared to what went on when the founding fathers were fighting political wars against each other. And they didn’t act like babies and seek to muzzle their opponents - like you would do.

[mumblypeg]

If the “actual malice” standard were thrown out, the burden of proof is reversed. The accuser is no longer required to prove you’re guilty of lying with **intent** to defame.
Nor does the accuser need to prove he or she suffered actual loss or harm as a direct result of your “reckless disregard” for the truth.
Instead, you must now prove you’re innocent, that you misspoke, you really didn’t mean any harm, and anyway your comments were true! You’re sure of it!

With this in mind, let’s all take a moment to review our comments on various threads pertaining to the various politicians and candidates, as well as various activists, actors, celebrities, and public figures about whom we have posted derogatory comments.

Every single one of them would now be more likely to sue Free Republic, due to an increased likelihood of winning.

[patlin]

And that is why we should be careful what we write and say, we should choose our words carefully, that they would withstand such scrutiny. It is called ‘integrity’, a virtue lost in this electronic age where ones fingers more often than not, run faster than ones conscience would otherwise have them run so to hold them back from writing or saying that which ought to have been left unsaid.

[patlin]

Who said anything about muzzling anybody? Doesn’t the truth matter to you?

[vbmoneyspender]

Who said anything about muzzling anybody?

What do you think a lawsuit does to somebody who doesn't have a lot of money? Or do you not live in the same world that the rest of us do?

[vbmoneyspender]

And that is why we should be careful what we write and say, we should choose our words carefully, that they would withstand such scrutiny.

When the burden of proof is shifted from the plaintiff to the defendant in proving the truth of a statement, the results are clear. Rich people use their resources to muzzle debate. Why do you support that? Are you some kind of troll for rich people who are doing bad things like the Saudis?

[patlin]

So you are saying “big” media is broke?

[vbmoneyspender]

Are you obtuse. I am saying that changing the libel laws will hurt the little guy. The big media companies will have plenty of money to hire lawyers to defend themselves. The little guys, like that woman I cited in the article above who wrote a book about Saudis financing terrorism will be muzzled. Why do you support that? Are you a Saudi supporter?

[papertyger]

The big media companies will have plenty of money to hire lawyers to defend themselves.

Which all drives up the price of losing.

And you're calling someone ELSE obtuse?

[vbmoneyspender]

You’re clearly the one who is obtuse if you can’t understand that shifting the burden in libel cases on to defendants will disproportionately impact the little guy. Speech has certainly been chilled in Britain as a result of rich bad guys like the Saudis being able to sue people who don’t have a lot of resources to defend themselves. Or maybe you’re just a troll who likes seeing rich guys muzzle those who can’t afford to hire libel lawyers at the drop of a hat..

[papertyger]

Or maybe you’re a media troll trying to head off the day of reckoning for malfeasance.

All those trial lawyers aren’t opposing “stand your ground” laws for the benefit of the “little guy.” It’s because of the immunity from civil action those laws confer.

[vbmoneyspender]

No, I’m pretty sure you’re the troll who likes seeing terrorist-loving Saudis squelch free speech.

[vbmoneyspender]

It’s because of the immunity from civil action those laws confer.

And by the way, you should try not to be so obtuse about legal terms like immunity. The issue at play here isn't immunity. What's involved is the burden of proof and who it should be shifted. So try to keep up troll.