Proposal for reinstituting group libel law
Lynne Henderson
hendersl at ix.netcom.com
Tue Mar 6 12:47:34 PST 2007
Different courts have used different tests. If it did not cross someones
mind that the Holocaust was true, then they would not be reckless.
BUT--honest belief is a defense ot knowledge, not recklessness; it just
depends on whether the court /jury believes the thought of falsity crossed
someones mind which depends on all the facts and circumstances. AND
*Masson* did find recklessness, just no damages, then the court changed its
mind. Jeff Masson's claim agains tJanet Malcolm was a bit iffy, and could've
gone either way.
My media law books ar eelsewhere or I'd haul out all the cases. . .
Lynne Henderson
----- Original Message -----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <conlawprof at lists.ucla.edu>
Sent: Tuesday, March 06, 2007 12:08 PM
Subject: RE: Proposal for reinstituting group libel law
Well, that's not what Masson and St. Amant say, it seems to me.
Under those tests, if someone honestly believes that the Holocaust
didn't occur, and that all the evidence against it was faked, then -- as
a legal matter -- this is simply not reckless disregard.
Eugene
Lynne Henderson writes:
> I think where the problem is is on an element of
> "recklessness" a tleast in criminal law and in many of the
> reckless disregard/actual malice csaes I have read.
> there must be a *cognitive* awareness /adversion to the risk
> something might be false and going head anyway. I thas
> nothing to do with subjective belief--unless someone can say
> falsity never crossed their mind. And then it is up to the
> factfinder to determine if that claim is believable--eg,
> whether the reporter or whoever did any checkign whatsoever,
> or ignored the
> risks. Even if she claims an hoes tbelief, there's the "no
> one could be
> that stupid" test--eg it is so unreasonable it is reckless.
> Cheers
> Lynne Henderson
> ----- Original Message -----
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> To: <conlawprof at lists.ucla.edu>
> Sent: Tuesday, March 06, 2007 11:55 AM
> Subject: RE: Proposal for reinstituting group libel law
>
>
> I'm a little puzzled why Prof. Pollack is speaking with such
> confidence, given that as best I can tell there are ample
> holdings for precisely the point I mentioned. This question
> arose on several occasions when the Court was recasting libel
> law in the 1960s, and the Court had to squarely confront it.
> (The point is holding even in Masson, but it was even more
> clearly controversial back then -- by Masson it was settled.)
> For instance, consider St. Amant v. Thompson, 390 U.S. 727,
> 731 (1968):
>
> "Purporting to apply the New York Times malice standard, the
> Louisiana Supreme Court ruled that St. Amant had broadcast
> false information about Thompson recklessly, though not
> knowingly. Several reasons were given for this conclusion.
> St. Amant had no personal knowledge of Thompson's activities;
> he relied solely on Albin's affidavit although the record was
> silent as to Albin's reputation for veracity; he failed to
> verify the information with those in the union office who
> might have known the facts; he gave no consideration to
> whether or not the statements defamed Thompson and went ahead
> heedless of the consequences; and he mistakenly believed he
> had no responsibility for the broadcast because he was merely
> quoting Albin's words.
>
> "These considerations fall short of proving St. Amant's
> reckless disregard for the accuracy of his statements about
> Thompson. 'Reckless disregard,' it is true, cannot be fully
> encompassed in one infallible definition. Inevitably its
> outer limits will be marked out through case-by-case
> adjudication, as is true with so many legal standards for
> judging concrete cases, whether the standard is provided by
> the Constitution, statutes, or case law. Our cases, however,
> have furnished meaningful guidance for the further definition
> of a reckless publication.... These cases are clear that
> reckless conduct is not measured by whether a reasonably
> prudent man would have published, or would have investigated
> before publishing. There must be sufficient evidence to
> permit the conclusion that the defendant in fact entertained
> serious doubts as to the truth of his publication. Publishing
> with such doubts shows reckless disregard for truth or
> falsity and demonstrates actual malice.
>
> "It may be said that such a test puts a premium on ignorance,
> encourages the irresponsible publisher not to inquire, and
> permits the issue to be determined by the defendants
> testimony that he published the statement in good faith and
> unaware of its probable falsity. Concededly the reckless
> disregard standard may permit recovery in fewer situations
> than would a rule that publishers must satisfy the standard
> of the reasonable man or the prudent publisher. But New York
> Times and succeeding cases have emphasized that the stake of
> the people in public business and the conduct of public
> officials is so great that neither the defense of truth nor
> the standard of ordinary care would protect against
> self-censorship and thus adequately implement First Amendment
> policies."
>
> Still, "dictum, my boy, dictum," or does this adequately
> demonstrate that "reckless disregard" does "in case law"
> require "a SUBJECTIVE standard for falsehood"? I'll be happy
> to cite more such cases; I just had thought the point I
> mentioned was sufficiently uncontroversial that there wasn't
> much need to cite more than Masson, or now more than Masson
> and St. Amant.
>
> Eugene
>
> > -----Original Message-----
> > From: Malla Pollack [mailto:mpollack at ajsl.us]
> > Sent: Tuesday, March 06, 2007 11:00 AM
> > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > Subject: RE: Proposal for reinstituting group libel law
> >
> > Despite the language, until the Supreme Court decides that someone
> > like Hitler is off the hook because he was too [insert] to
> recognize
> > falsehood, I will refuse to take this quote literally.
> Dicta, my boy,
> > dicta.
> >
> > Malla Pollack
> > Professor, American Justice School of Law mpollack at ajsl.us
> > 270-744-3300 x 28 articles http://works.bepress.com/malla_pollack/
> >
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> Volokh, Eugene
> > Sent: Tuesday, March 06, 2007 12:55 PM
> > To: conlawprof at lists.ucla.edu
> > Subject: RE: Proposal for reinstituting group libel law
> >
> > Well, the Court has, I think, been pretty clear about
> > this: the actual malice standard requires "'knowledge that it was
> > false or with reckless disregard of whether it was false or not.'
> > Mere negligence does not suffice. Rather, the plaintiff must
> > demonstrate that the author 'in fact entertained serious
> doubts as to
> > the truth of his publication,'
> > or acted with a 'high degree of awareness of ... probable falsity.'"
> > That is indeed a deliberately SUBJECTIVE standard for falsehood, in
> > which being very sincere (to the point of not even entertaining
> > serious
> > doubts) is exculpatory (where the statement is on a matter
> of public
> > concern, except when the remedy sought is mere compensatory damages
> > and the statement libels a private figure).
> >
> > Eugene
> >
> > > -----Original Message-----
> > > From: Malla Pollack [mailto:mpollack at ajsl.us]
> > > Sent: Tuesday, March 06, 2007 9:22 AM
> > > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > > Subject: RE: Proposal for reinstituting group libel law
> > >
> > > Sincerity is highly overrated -- Hitler was very sincere.
> > > Eugene seems to be using a SUBJECTIVE standard for
> > falsehood, but I
> > > am not sure that "reckless disregard" goes that far in
> theory or in
> > > case law.
> > >
> > > Malla Pollack
> > > Professor, American Justice School of Law mpollack at ajsl.us
> > > 270-744-3300 x 28 articles http://works.bepress.com/malla_pollack/
> > >
> > > -----Original Message-----
> > > From: conlawprof-bounces at lists.ucla.edu
> > > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> > Volokh, Eugene
> > > Sent: Tuesday, March 06, 2007 11:18 AM
> > > To: conlawprof at lists.ucla.edu
> > > Subject: RE: Proposal for reinstituting group libel law
> > >
> > > Doug: I agree entirely -- maybe I wasn't quite clear, but my
> > > point was simply that false statements of fact can't be
> > punished *if
> > > the speaker sincerely believes them* (as opposed to knowing that
> > > they're false, or being reckless about the falsehood).
> > >
> > > Eugene
> > >
> > > ________________________________
> > >
> > > From: conlawprof-bounces at lists.ucla.edu
> > > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Douglas
> > > Laycock
> > > Sent: Tuesday, March 06, 2007 8:28 AM
> > > To: conlawprof at lists.ucla.edu
> > > Subject: RE: Proposal for reinstituting group libel law
> > >
> > >
> > >
> > > Eugene, where does your proposition 2 come from? The
> > Court has said
> > > that knowingly or recklessly false statements about public
> > figures may
> > > be punished as criminal libel.
> > > Garrison v. Louisiana, 379 U.S. 64 (1964).
> > >
> > > Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
> > >
> > > > (1) Is it really "quite innocent" for the law to ban
> > > even false
> > > > statements of fact about history (a category that I'm
> > sure would
> > > never
> > > > stay limited just to Holocaust denial)?
> > > >
> > > > (2) Under New York Times v. Sullivan and Gertz v.
> > > Robert Welch,
> > > > it seems that even false statements of fact can't be
> > punished (as
> > > > opposed to be subject to proven compensatory damages when said
> > > > negligently about a particular private figure) if the speaker
> > > sincerely
> > > > believes them -- given the fact that many racists
> > (and perhaps even
> > > many
> > > > Holocaust deniers) are quite sincere in their
> > beliefs, wouldn't
> > > their
> > > > speech remain protected?
> > > >
> > > > (3) Are there really a lot of statements out there of
> > > the sort
> > > > that "all Muslims are terrorists" (yes, including the
> > 75-year-old
> > > > grandmother) or "all black men rape white women"
> > > (which, among other
> > > > things, would mean the rape rate has to be far higher
> > than even the
> > > > highest estimates) that are really understood as
> > literal statements
> > > of
> > > > fact, as opposed to hyperbole or opinion?
> > > >
> > > > Eugene
> > > >
> > > >> -----Original Message-----
> > > >> From: Malla Pollack [mailto:mpollack at ajsl.us]
> > > >> Sent: Tuesday, March 06, 2007 5:47 AM
> > > >> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > > >> Subject: RE: Proposal for reinstituting group libel law
> > > >>
> > > >> Eugene is right that allowing group libel claims would not get
> > > >> rid of most inflamatory opinions, but it would reach
> claims about
> > > >> facts -- which should include remarks like denial of the
> > > >> Holocost, acusations that all Muslims are terrorists, that all
> > > >> Black Men rape White Women etc
> > > >>
> > > >> FYI I hate "speech codes"
> > > >>
> > > >> Malla Pollack
> > > >> Professor, American Justice School of Law mpollack at ajsl.us
> > > >> 270-744-3300 x 28 articles
> > > http://works.bepress.com/malla_pollack/
> > > >> -----Original Message-----
> > > >> From: conlawprof-bounces at lists.ucla.edu
> > > >> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf
> > Of Volokh,
> > > Eugene
> > > >> Sent: Monday, March 05, 2007 8:45 PM
> > > >> To: conlawprof at lists.ucla.edu
> > > >> Subject: Proposal for reinstituting group libel law
> > > >>
> > > >> Interesting; could those who support this proposal
> > > >> briefly explain how such "group defamation claims"
> would work?
> > > >> Would they, for instance, validate laws such as the
> ones upheld
> > > >> in Beauharnais v.
> > > >> Illinois (which is generally assumed to no longer be
> good law in
> > > >> the wake of New York Times v. Sullivan)?
> > > >>
> > > >> Off the top of my head, I don't quite see how a
> > > "quite innocent"
> > > >> change in the law would lead to nearly any increased scope of
> > > >> punishment of "hate speech" (which is usually opinion
> rather than
> > > >> a false statement of fact). Could Malla or others who
> share her
> > > >> views enlighten me on this? Many thanks,
> > > >>
> > > >> Eugene
> > > >>
> > > >>
> > > >>
> > > >> Malla Pollack writes:
> > > >>
> > > >> We could get some of the benefit claimed by those advocating
> > > >> regulation of hate speech with one, quite innocent,
> legal change
> > > >> - accept group defamation claims.
> > > >> _______________________________________________
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> > > >>
> > > >>
> > > >>
> > > >>
> > > >> --
> > > >> No virus found in this incoming message.
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> > > >> Date: 3/5/2007
> > > >> 9:41 AM
> > > >>
> > > >>
> > > >>
> > > > _______________________________________________
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> > > >
> > >
> > >
> > > Douglas Laycock
> > > Yale Kamisar Collegiate Professor of Law University of
> Michigan Law
> > > School
> > > 625 S. State St.
> > > Ann Arbor, MI 48109-1215
> > > 734-647-9713
> > >
> > > _______________________________________________
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> > >
> > >
> > >
> > _______________________________________________
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> >
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