Proposal for reinstituting group libel law

[Volokh, Eugene]

Doug Laycock writes:  "Sincerity is not inconsistent with recklessness.
Now matter how sincerely I believe a falsehood, if the facts are readily
checkable, I can be reckless by publishing the falsehood without having
checked."

	I don't think this is quite right.  "[F]ailure to investigate
will not alone support a finding of actual malice" (Harte-Hanks v.
Connaughton; St. Amant v. Thompson).  "[T]he purposeful avoidance of the
truth" may support such a finding (same cases), but that does require
*purposeful* avoidance of the truth -- knowledge that the truth is
likely out there, and that it contradicts one's planned statement, and a
conscious disregard of  this risk of falsehood.  If someone sincerely
believes a falsehood, to the point of not believing that there are
contrary facts, that means no knowledge or reckless disregard of
falsehood.  That is in fact the holding of St. Amant, which I quoted
more extensively in another e-mail I just sent, and the Court has
consistently applied it.

	I should also note that in most group libel cases, the factual
assertions that are intended to be believed literally -- Jews were
responsible for this or that social pathology, blacks are genetically
inferior to whites, and the like (as opposed to the statements that are
obvious hyperbole and thus not actionable on their face, such as "all
Muslims are terrorists" or "all Jews are swindlers") -- are not the sort
of thing on which "the facts are readily checkable" in the sense that
one can check what is the capital of Oklahoma or that one can check with
a person what his side of some contested incident was.  My sense is that
many racists and anti-Semites sincerely believe that their factual
assertions are false, that rival factual claims are incorrect or even
faked, and that on balance the scientific/historical/etc. evidence is in
their favor.

	Eugene