Proposal for reinstituting group libel law
Harry Pohlman
pohlman at dickinson.edu
Wed Mar 7 08:47:18 PST 2007
but doesn't the outrageousness of the claim undercut the likelihood
of real harm in most cases of what you call per se libel in the post-
SULLIVAN world? Moreover, how could surveys establish that a
particular denial of the holocaust produced the negative
international opinion of Israel, rather than other factors, such as
the policies of Israel itself? how could an attorney prove
causation? Lastly, are nation-states to be added to the list of
groups that have legally protected reputations? does that mean that
your also advocating the return of seditious libel? H
On Mar 7, 2007, at 10:10 AM, Malla Pollack wrote:
> Very good question, thans for raising it. Actually some assertions
> have
> always been libel per se -- no need to prove actual harm. I think
> claiming a
> group consists overwhelmingly of rapists, Christ Killers, etc is close
> enough to move easily from individuals to groups. As for group
> reputation
> the BBC news just published that Isreal has an extremely low
> international
> reputation with people (not governments). So they must consider
> some type of
> evidence relevent to such questions. Presumably, if the allegedly
> libelous
> statement did not consitte libel per se, one could do a survey -- as a
> trademark attorney I can vouch for public serveys being used as trial
> evidence consistently (though some early cases did raise hearsay
> problems,
> courts have stopped that line).
>
> 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 Harry Pohlman
> Sent: Wednesday, March 07, 2007 9:00 AM
> To: Volokh, Eugene
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Proposal for reinstituting group libel law
>
> i've enjoyed this thread on group libel, but i still am very
> skeptical about basing civil liability on false historical claims,
> partly for the reasons that Eugene has so ably argued, but also
> because, unless i am mistaken, statements have to be defamatory
> before they can constitute libel, that is, they have to be injurious
> to reputation. does a racial or ethnic group have a reputation in
> the sense that an individual has one? which groups are legally
> entitled to claim "reputations?" and even if some groups are legally
> entitled to reputations, could they prove compensatory harm if some
> crazy person makes a wild historical allegation? (i'm assuming that
> Bernard Lewis would be protected on other grounds.) how would one
> go about proving that such denials of the holocaust have hurt the
> reputation of Jews? would juries decide these questions? in any
> case, perhaps i missed this along the way, but wouldn't a proposal
> for group libel have to address these questions, especially post-
> SULLIVAN.
>
> Harry Pohlman
>
>
> On Mar 6, 2007, at 6:46 PM, Volokh, Eugene wrote:
>
>> (1) Imagine that the FTC were given the authority to prosecute
>> "false or misleading" -- or even just "false" -- statements
>> related to
>> history, science, and so on. Would members of the list be
>> comfortable
>> with that? Would they say, sure, why not, we trust the FTC to decide
>> whether claims about soap or car seats are correct, let them figure
>> out
>> whether some contested claim about the killing of Armenians in
>> World War
>> I, the history of slavery or relations with American Indians, or some
>> theory of physics is correct? True, the FTC wouldn't be talking
>> about
>> banning various explanatory theories of history -- only banning
>> factual
>> assertions about what supposedly happened in the 1915 Ottoman Empire.
>> No problem?
>>
>> (2) As I've noted in other posts, I think my statement that
>> sincere belief categorically precludes punishment for false
>> statements
>> of fact about matters of public opinion (as opposed to compensation
>> for
>> such statements about private figures) is indeed an accurate
>> statement
>> of libel law.
>>
>> (3) "Quantity," to use Prof. Jamar's term, matters only in
>> determining whether a statement is likely to be understood as
>> factually
>> false. "All Republicans are liars" is surely not going to be
>> understood
>> as a factual assertion that every single Republican is a liar simply
>> because it's so clearly false; it can't be that every single person
>> in a
>> group of tens of millions is a liar.
>>
>> Eugene
>>
>>
>>
>>
>> Steve Jamar writes, responding to me; my responses are marked with
>>
>> (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)?
>>
>> Why is it harder in history than in advertising, Eugene? We
>> have three categories of facts (for this purpose) in history: (1)
>> hard,
>> undeniable facts; (2) undeniably false assertions; (3)
>> legitimately or
>> objectively contestable assertions of fact. No one is trying to
>> ban the
>> first or third category legally (though those in power regularly
>> try to
>> suppress all sorts of facts, true and contested as well as
>> false). So
>> where is the harm from a free speech perspective?
>>
>> And no one is talking about banning various explanatory theories
>> of history, howsoever far-fetched they may be.
>>
>> I don't see the problem you seem to intimate may exist.
>>
>>
>>
>> (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?
>>
>>
>> This is not a statement of the law of libel as I understand it,
>> even with respect to public figures.
>>
>>
>>
>> (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?
>>
>>
>> Are we to decide the principle based on quantity? I'm not
>> against that sort of weighing in principle, but I'm surprised to
>> see it
>> come from one supposedly making a hard-edged principled stand as
>> opposed to a pragmatic one.
>>
>>
>>
>> --
>>
>> Prof. Steven D. Jamar vox:
>> 202-806-8017
>> Howard University School of Law fax:
>> 202-806-8567
>> 2900 Van Ness Street NW
>> mailto:stevenjamar at gmail.com
>> Washington, DC 20008
>> http://iipsj.com/SDJ/
>>
>>
>> "Nonviolence means avoiding not only external physical
>> violence but also internal violence of spirit. You not only refuse to
>> shoot a man, but you refuse to hate him."
>>
>>
>>
>>
>> Martin Luther King, Jr.
>>
>>
>>
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