Proposal for reinstituting group libel law

[Volokh, Eugene]

	The trier of fact is indeed entitled to disbelieve the
defendant, under the facts that Mark describes.  This is one reason that
some have argued against liability for false statements of fact *even
when actual malice was shown*.  

	Black, Goldberg, and Douglas argued in NYT v. Sullivan for per
se protection even for knowingly false statements on matters of public
concern about public officials; they lost on that.  On the other hand,
the Court in NYT and then again in Rosenblatt v. Baer did decide in
favor of per se protection even for knowingly false statements about the
government.  One unresolved question is whether this per se protection
should also extend even to knowingly false statements about history,
science, and so on (at least absent some attempt to get money based on
those statements, or some specific individual target for those
statements).  The Washington Supreme Court, for instance, struck down a
ban on making false statements with "actual malice" in ballot measure
campaigns, though other courts have upheld similar bans.

	Nonetheless, even if all false statements of fact (except
perhaps those about the government) are unprotected against punishment
when said with actual malice, at least a jury is required to find actual
malice; and in the cases of many bigots -- especially ones whose public
bigotry seems to get them only pain and little gain -- a jury may well
find that the bigot sincerely believed certain false assertions, and
thought that the rebuttals to those assertions were false.

	Eugene

Mark Scarberry writes:
 
> Perhaps Eugene or someone else can help us with the question 
> that always arises when subjective and objective standards 
> are under consideration.
> What evidence may be used to show subjective knowledge of the 
> falsity of the statement (or at least that the speaker 
> actually entertained serious doubts of the truth of the 
> statement)? Do we need to have an admission by the speaker?
> 
> Suppose a country in which one can be sued civilly for 
> denying that the Holocaust occurred were to accept the NY 
> Times v. Sullivan approach.
> Suppose it can be shown that, before making a 
> Holocaust-denying statement, the defendant had read ten 
> scholarly histories providing strong evidence that the 
> Holocaust occurred and one thin volume consisting of 
> assertions that the Holocaust did not occur (written by 
> someone who admittedly had never been to Europe, never 
> interviewed anyone from Europe, and refused on principle to 
> consider evidence in favor of the occurrence of the 
> Holocaust). Nevertheless the defendant asserts that he did 
> not believe a word of the ten histories (all Zionist 
> propaganda in his view) and asserts that he had implicit 
> faith in the author of the thin volume (whom he knew only 
> from what he read in the thin volume). Is the trier of fact 
> entitled to disbelieve the defendant?
> That is, is evidence that shows that a minimally rational 
> person would at least have entertained serious doubts of the 
> truth of the Holocaust-denying statement sufficient to allow 
> a trier of fact to conclude that the defendant actually 
> doubted its truth?
> 
> Mark S. Scarberry
> Pepperdine University School of Law
>  
> 
> -----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 1:48 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Proposal for reinstituting group libel law
> 
> 	Well, of course I can't be sure how the Court would 
> rule in cases of a sort that it hadn't heard in 50 years.  
> Note, though, how far removed we have gotten from the 
> proposal's being "innocent," presumably meaning 
> well-established and uncontroversial.  Malla is now urging 
> that "reckless disregard" should be redefined for group libel 
> cases (would that end up leaching into traditional cases, by 
> the way?).  As best I can tell, her argument is that even 
> negligently false statements about history that touch on 
> groups -- including statements about events (such as the 
> Holocaust) that implicitly affect the reputation of groups -- 
> should be subject to criminal punishment.  
> 
> 	American courts will now become tribunals for judging 
> whether someone should be punished for publishing supposedly 
> bad history.
> Historians, journalists, authors, and others would be subject 
> to prosecution (as well as civil lawsuits, which involve 
> lighter punishment but also omit the possibility of 
> prosecutorial discretion) for setting forth historical 
> theories that a judge and jury would conclude are 
> "hate-filled" and insufficiently -- presumably, negligently 
> -- attentive to factual authorities.  Scholars who had gotten 
> used to historical fact being ascertained by competing 
> historians publishing their views and trying to persuade 
> future historians will now have to recognize that one side of 
> the debate may end up being shut up by the threat of prison.
> Nor would this be limited to Holocaust denial; the same could 
> be said about other matters that are much more controversial 
> among legitimate historians.
> 
> 	How that is an innocent change to First Amendment law eludes me.
> 
> 	Eugene
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