THE RIGHT TO SPEAK ILL: DEFAMATION, REPUTATION AND FREE SPEECH

Vol. 16 No. 7 (July, 2006) pp.565-571

THE RIGHT TO SPEAK ILL: DEFAMATION, REPUTATION AND FREE SPEECH, by Russell L. Weaver, Andrew T. Kenyon, David F. Partlett and Clive P. Walker. Durham, North Carolina: Carolina Academic Press, 2006. 348pp. Cloth. $45.00. ISBN: 0890894892.

Reviewed by Caren G. Dubnoff, Department of Political Science, College of the Holy Cross. Email: cdubnoff [at] holycross.edu.

The Supreme Court’s recent decision holding that the death penalty could not be imposed on individuals who were under the age of eighteen when they committed their crimes (ROPER v. SIMMONS 2005) generated a strong dissent from Justices Scalia and Thomas and the late Chief Justice Rehnquist, not only for its conclusion, but also for its reference to foreign and international law as a source of guidance regarding evolving standards of decency. While the justices debate the utility and legitimacy of seeking guidance from foreign law and opinion in constitutional interpretation, legal scholars are increasingly attempting comparative analyses. A comparison of the state of defamation law as it has evolved in different democratic nations, especially between countries that share common-law traditions, have been the focus of much recent writing. A central problem, as many have noted, is that defamation law involves a tension between two of democracy’s most important values: commitment to free speech, essential to open debate about public affairs and to individual development and autonomy, and a competing concern for an individual’s reputation as essential both to human dignity and to the good functioning of democratic government. Interest in defamation law is important as well because of the spillover effect from one jurisdiction to another as a consequence of the globalization of information, placing publications in legal jeopardy outside the jurisdiction of origin. In support of the importance of such studies, there are sufficient commonalities of culture, history and values among many democratic nations to allow for a meaningful assessment of the impact of whatever differences are found.

THE RIGHT TO SPEAK ILL falls within the stream of this growing body of literature. It begins with a comparison of doctrinal developments in defamation law in Australia, the United States and England in order “to understand how defamation protections provided in the three countries, all based on a common recognition [of] a right of free speech, function in practice” (p.14). What sets this work apart is its effort to look at actual media practice in order to “assess how [these rules] affect the free speech- reputation trade-off” (p.14). THE RIGHT TO SPEAK ILL is the first book to my knowledge that attempts to assess the impact of defamation law on media behavior by using extensive interviews with reporters, editors, and lawyers connected with the media. Some of this work has appeared in more limited form in earlier law review articles by the authors, Russell Weaver, Andrew Kenyon, David Partlett, and Clive Walker. The empirical data are of [*566] impressive scope, contributing greatly to the book’s value. In other scholarly writing, the desirability of various doctrinal developments tends to be based either on anecdotal evidence or on untested assumptions. The work here is therefore innovative and important.

I found the doctrinal discussion, however, to be rather uneven. It provides a generally accurate broad overview of the relevant history, but it is often not well sorted out, and much of the examination of details is hard to follow. Furthermore, the assessment of how legal rules are implemented in various lower courts is under-developed, with little attention given to judicial and jury responses to specific litigation. These are important to an understanding of the operation of legal rules.

Chapter 1 provides an overview of the issues, the relevant legal history, and the authors’ objectives. As noted above, the three nations under study share a commitment both to free speech and to reputation. Initially they also employed a similar approach to weighing those issues, based on English common law under which reputation was favored. However in 1964 as a consequence of efforts to use defamation law in the American south to stifle criticism from civil rights leaders, the US Supreme Court, in NEW YORK TIMES v. SULLIVAN (1964), took a different path, and began a process of giving constitutional protection to some aspects of allegedly defamatory speech. This shifted the balance in the US more toward free speech, at the expense of the protection of reputation. Australia and England have also become more protective of free speech values in recent years, but they did so considerably later, and to a more limited degree. The introductory chapter also considers the broader history of state regulation of public speech, focusing on the history of seditious libel. These laws initially criminalized speech, especially truthful speech, that “criticize[d] the government or governmental officials” on the grounds that such speech “inculcated a disrespect for public authority” (p.6). Here also, the US took a more speech-protective course. Seditious libel is no longer considered constitutional, but it continues to be considered a crime in Australia and Great Britain. The chapter concludes with a list of questions that frame the analysis in the chapters that follow: “How do defamation laws vary? How do the variations affect the press and press practices?” The authors also promise some assessment of standards.

While the authors are correct to see a close connection between seditious libel and defamation law, the related discussion is far lengthier than merited. On the other hand, it would have been helpful at this point if the authors had more fully developed their rationale for exploring how the rules “function in practice.”

Chapters 2-4 are designed to explain the defamation rules and their operation in each country under study. Chapter 2 focuses on the common law and gives a clear account of its role in producing defamation rules that generally protect reputation over free speech. Defamatory statements were assumed to be false, placing the legal burden on defendants to prove that they were true or fit within [*567] very limited areas where speech was not actionable.

Chapter 3 presents a thorough history of American defamation doctrine from SULLIVAN (1964) to the present, with extensive descriptions of significant Supreme Court decisions, as well as substantial excerpts from several key cases. Like so many other legal developments, the constitutionalization of defamation law grew out of the Civil Rights movement. Prior to 1964, defamation was controlled by the states and followed common law, which favored reputation over speech. Southern efforts to use defamation law to stifle criticism from civil rights activists prompted the Supreme Court to reconsider its position. A defamation suit was filed against the New York Times for publishing an advertisement highly critical of Southern officials’ actions against civil rights leaders. The advertisement was broadly accurate but contained factual errors, and these errors were sufficient to make the New York Times liable under common law. That suit led ultimately to SULLIVAN (1964), in which the Court held that speech about government officials, even false speech, came under the protection of the First Amendment and could only be punished if made with “actual malice”—that is, “with knowledge that it was false or published with reckless disregard for whether it was false or not” (p.47). In a series of subsequent decisions, the Court extended application of the “actual malice” standard to public figures, but not to private individuals engaged in issues of public interest. The standard was thus controlled by the status of the person rather than the nature of the issue. The burden was now on the plaintiff to prove falsity, and damages for injury could only be awarded if the plaintiff could prove “actual malice.” Following shortly thereafter, the Court, in ROSENBLOOM (1971), appeared on the verge of shifting focus from the party to the surrounding issue, a move that would have expanded press protections. Later cases seemed to be more sympathetic to reputation. The GERTZ (1974) Court refused to extend the “actual malice” standard to a private individual engaged in an issue of public interest. However, under such circumstances, damages were limited to actual injury, rendering such lawsuits unprofitable. The chapter goes on to describe later cases where the Court grappled with defining public figures and with distinguishing actionable opinions from those that are not. The Court has never retreated on its core position articulated in SULLIVAN, limiting defamatory actions where these would impinge on debate over public issues, and American law has thus remained quite speech protective.

Chapter 4 examines the Australian and English approaches to defamation. The discussion is extensive, complicated, and at times hard to follow. The broad picture is that until the 1990s both countries followed a generally parallel course, guided by English common law which, to restate, favored the protection of reputation over free speech. The rules of evidence, presumptions, and burdens of proof all favored plaintiffs. There were only a few areas where the media could report without significant fear of liability. [*568]

Both countries, following a general trend in the 1990s among Western democracies toward increased appreciation of the importance of free speech, adopted a more speech-protective position. The legal basis for this shift differed in the two countries, but the general course was a parallel one. The touchstone in Australia occurred in 1994 when the Australian High Court decided THEOPHANOUS v. HEARD & WEEKLY TIMES. Unlike the US Constitution, the Australian Constitution has no Bill of Rights and therefore no explicit protection for speech. The Australian Court however found an implied right in the Constitution’s commitment to democratic government and used this implied right as basis for expanding media protections. England moved in a similar direction, though the grounding was different. The European Court had an influence that it did not in Australia; there was more legislative involvement and no constitutional justification.

However neither country provided the media with the level of protection it received in the US. In the end there seems to be less, especially in Australia, in these speech protective decisions, than meets the eye. The authors contend that the Australian High Court retreated from THEOPHANOUS in the subsequent case of LANGE v. ABC (1997) in several ways. THEOPHANOUS had held that the defendants in defamation cases were not liable when they were speaking about political matters. Lange narrowed the meaning of “political communication and added the requirement that the publication be “reasonable” (p.85).

The developments in England are viewed more positively. The pivotal case was REYNOLDS v. TIMES NEWSPAPERS, decided in 1999 by the House of Lords. There were significant developments that led up to this case, including changes in Civil Procedure Rules and two decisions by the European Court implementing the European Convention on Human Rights and Fundamental Freedoms. These gave increased weight to speech over reputation and reduced allowable money damages. There was also movement in English case law, including DERBYSHIRE COUNTY COUNCIL v. TIMES NEWSPAPERS (1993), which offered an absolute defense for some speech but had very limited application. The authors then examine REYNOLDS in detail. Their central observation is that this decision expanded the scope of the qualified privilege from publication only about political affairs to publication of material with broader public interest (p.103). The authors also point to speech-protective rhetoric in the decision. However, there was an important caveat – the protection was available only as long as the press acted responsibly (p.105). The authors then discuss the list of factors to be used to determine whether this requirement has been met, with the potential to be very intrusive on the press (p.103). The reader is left to decide what factors led to the assessment that REYNOLDS was indeed a substantial advance. The authors consider some lower court responses to REYNOLDS, thus allowing some judgment regarding implementation.

The purpose of this section is to explore the developmental history and actual [*569] operation of defamation law in each country. Although the description of Australian law is often opaque, the section offers a great deal of information, particularly about doctrinal developments. A much clearer description of Australian law can be found in an article by Susanna Fischer (2002).

Weaver and associates are less successful in attending to the operation of the rules. The chapter on REYNOLDS is the strongest, providing a careful examination of how English lower courts responded to this decision. By contrast, the chapter on US defamation law gives almost no attention to implementation in the lower courts. What really happens in defamation trials? How often do judges grant summary judgment? Does the “actual malice” standard, as many commentators, such as Lucas A. Powe (1991), have charged, change the focus at trial from truth to press behavior? To be fair, some of this material appears in later chapters, but it lacks the same force as it would have here and is still incomplete. As a matter of style, the authors use the word “Court” to refer both to the Supreme Court and to lower courts, and it is not always immediately clear to which tribunal they are referring. I noticed a factual error as well—the brief pre-SULLIVAN history incorrectly places the application of the First Amendment against the states in CANTWELL v. CONNECTICUT (1940). It actually occurred significantly earlier, in GITLOW v. NEW YORK (1925).

The second half of the book is very different. It attempts to assess the consequences of legal rules by determining how the media have acted in different legal settings. The data are drawn from interviews the authors conducted with reporters, editors, and defamation lawyers. A broad range of media, large and small, national and state, print and broadcast, is covered. The interviews in England and Australia were conducted both before and after significant doctrinal shifts. Since the US changed direction much earlier, only one set of interviews was conducted.

The authors offer a number of interesting observations based on their interview data. Not surprisingly they find that legal rules matter. The media and press in the United States pay far less attention to defamation law when deciding what and how to publish than they do in England and Australia. The media in England in the pre-REYNOLDS period were far more cautious than they were afterwards. The LANGE decision, by contrast, had far less effect. And the media and press felt more constrained in Australia than in England. In England, not only did the media act quite differently after REYNOLDS, but given the decline in defamation suits reported, so too apparently did plaintiffs.

There is much more in the details. What follows is a sampling of some of the more interesting points. In pre-REYNOLDS England, the media claimed that defamation rules limited their reporting. Articles were reviewed prior to publication by defamation lawyers, their objective being to allow as much publication as possible while [*570] insulating the media from litigation. That practice, in turn, shaped how stories were reported and who was covered by the press. Litigious individuals were often given a pass. Truth was a defense, but prior to REYNOLDS, with the burden of proof placed on the defendant, the British media were often unwilling to publish material that they believed to be true if they were not sure they could prove it in court.

The book concludes with an assessment of the competing standards. Acknowledging once again that defamation law involves a clash of values, and that the trade-offs are more appropriate fodder for the political process, the authors focus on the consequences of different rules for these competing values. They begin by dismissing the common law approach as insufficiently protective of free speech. Most of the final chapter is occupied by an evaluation of US defamation law, specifically the “actual malice” standard and the consequences of law based on the status of the individual rather than on the nature of the issue. They contend that the “actual malice” standard does protect speech, rejecting the argument that it “chills” expression. Their interviews with members of the US press did not reveal such a “chill.” The authors also point to the absence of a “defamation bar” in the United States, an entity that still exists in England and Australia. They acknowledge the concern that litigation under the “actual malice” standard can be costly, but they contend that the problem is minimal because there is very little such litigation. The expected level of compensation is often too low to make litigation worthwhile, and “few plaintiffs succeed in obtaining an enforceable judgment” (p.251). The authors base their conclusions on statistics from the Media Resource Law Center and on secondary literature. They make a good case, but one does wonder how much weight to give to data that is self- reported. A more important problem is that smaller newspapers, for which even an occasional defamation award can be disastrous, are not considered. The authors are more sympathetic to a very different objection – the claim that the “actual malice” standard does not sufficiently protect reputation. On this issue, however, the evidence is sparse.

Assessment of the US is concluded with an argument favoring a change in focus from the defendant’s status to the issue under discussion. Such a shift would at least partially address the problem of lawsuits by corporations intended to chill criticism, the so-called SLAPP (Strategic Litigation Against Public Participation) litigation, and makes more sense generally if the concern is debate over public policy. The point is valid but not particularly related to the empirical data.

Overall, the RIGHT TO SPEAK ILL adds a great deal to our understanding of defamation law. It is not, however, always easy to digest and would best serve as a reference or addition to an advanced course on the First Amendment and the media.

REFERENCES:

Fischer, Susanna Frederick. 2002. “Rethinking Sullivan: New Approaches in Australia, New Zealand, and England.” 34 GEORGE WASHINGTON INTERNATIONAL LAW REVIEW 101. [*571]

Powe Jr., Lucas, A. 1991. THE FOURTH ESTATE AND THE CONSTITUTION: FREEDOM OF THE PRESS IN AMERICA. Berkeley, University of California Press.

CASE REFERENCES:

CANTWELL v. CONNECTICUT, 310 US 296 (1940).

DERBYSHIRE COUNTY COUNCIL v. TIMES NEWSPAPERS [1993] A.C. 534.

GERTZ v. ROBERT WELCH, 418 US 323 (1974).

GITLOW v. NEW YORK, 268 US 652 (1925).

LANGE v. ABC (1997) 145 ALR 96.

NEW YORK TIMES CO. v. SULLIVAN, 376 US 254 (1964).

REYNOLDS v. TIMES NEWSPAPERS [1999] 4 All ER 609.

ROPER v. SIMMONS, 543 US 551 (2005).

ROSENBLOOM v. METROMEDIA 403 US 29 (1971).

THEOPHANOUS v. HEARD & WEEKLY TIMES (1994) 124 ALR 1.

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