Wednesday, March 31, 2004

Freedom of Speech


Public figures - typically celebrities and politicians - in the United States sometimes complain about the Times v Sullivan standard for slander actions, pursuant to which they must demonstrate "actual malice" before they can recover damages for false statements printed about them. ("Actual malice" means that the statements are made despite "knowledge that statements are false or in reckless disregard of the truth".)

Other nations don't follow the same rules. In fact, few other nations offer publishers similar protections, and most offer far less. This has resulted in what is now referred to as "libel tourism", where the rich and famous seek out a nation where a work is published or distributed, but which offers few protections to publishers, and brings suit in that nation.

The United Kingdom has been the subject of such "libel tourism" in recent years and, according to the London Guardian, this has resulted in a decision by the U.K. subsidiary of Random House not to carry House of Bush, House of Saud by Craig Unger, a book about the connections between the Bush family and the Saudi royal family.
Unger's thesis is that the eagerness of US politicians to tap into Saudi money over the years may have compromised Mr Bush's determination to fight terrorism: "Never before has an American president been so closely tied to a foreign power that harbours and supports our country's mortal enemies."

How far Unger's thesis is credible is something that the US reading public will be able to decide for themselves. The book is becoming a bestseller in US election year. In Britain, however, the deputy chairman of Random House denied that the decision to suppress it was "pusillanimity or unnecessary self-censorship".
The article includes some complaints from the Deputy Chairman of Random House, criticizing the U.K.'s libel laws as "draconian" and "disgraceful", "stifling legitimate freedom of speech".

The principle behind the U.S. approach to "public figures" is that a public figure is in an excellent position to respond to any criticism, fair or unfair, and thus needs fewer protections than a similarly situated private citizen. This has certainly been borne out in practice. A "defamed" celebrity can appear on several, perhaps dozens, of talk shows and conduct similar numbers of interviews to respond to accusations. A private citizen has no similar opportunity to reply. And despite the fact that some nefarious rumors get published, celebrities seem to weather the occasional storm quite well.

Meanwhile, the U.S. public gains access to information which, when true, can be quite valuable - and when false or misleading, can nonetheless trigger important public debate and discussion. No, not the nonsense in the Enquirer, but books like Unger's. Given the societal costs and benefits, perhaps other nations should consider sending the tourists back home.

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