- Corporate “politically correct” censorship should be fought in the marketplace and with the truth
Two articles are set forth here, both via Heritage Foundation’s Daily Signal. While not directly addressing Trump’s complaints about fake news and his wanting to see libel laws “strengthened” readers are encouraged to reflect on them in that context.
We write off Trump’s complaint as lament rather than properly actionable. Nevertheless we must disagree with the estimable Walter Williams as regards libel and blackmail while appreciating the points made. We would not remove all libel protections and for now pending study of a lot more specific proposals leave them pretty much alone. As to blackmail we think that should continue to be actionable especially when it involves violations of privacy — eavesdropping. The European proposal is indeed Orwellian. But first this excerpt from a Forbes columnist might be helpful to establish what the current legal situation is as regards libel. The rest of the article is infused with unnecessary snark.
Why President Trump’s ‘Strong Look’ At Libel Laws Deserves Legal Side Eye (excerpt)
. . . Libel is a published, false statement that damages someone’s reputation, and every state offers legal remedies for those who have had false, defamatory statements published about them.
Beyond that, however, there just isn’t much the president—any president—can do about libel laws anyway.
How Libel Laws Work
For starters, there are no federal libel laws, and the president has no power to change state libel laws. The president could, theoretically, encourage state lawmakers to pass libel legislation or even try to persuade Congress to pass a federal libel statute, but neither of those scenarios are likely as the president’s approval rating continues to plummet.
Moreover, the fundamental problem with the idea to “open up” our libel laws is that defamation principles stem from rights guaranteed in the Constitution: the First Amendment’s freedom of speech and freedom of the press.
Our courts have spent many years grappling with First Amendment issues to arrive where we are now, which is that in order for public figures, including public officials, to bring successful libel suits, the plaintiff must show that the defendant published a false and defamatory statement with actual malice, defined as “with knowledge that it was false or with reckless disregard of whether it was false or not.”
This burden is incredibly high, and, as our Supreme Court has noted, with good reason, particularly when applied to public officials (such as the president). Free and open debate is critical to our democracy, reflecting “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Stifling discourse with stricter libel laws, the Supreme Court has noted, could “lead to intolerable self-censorship” by the press.
And now the Daily Signal articles:
Europe Comes Up With Perfectly Orwellian Responses to ‘Fake News’ (by Heritage editors)
In their zeal to stamp out “fake news,” European governments are turning toward Orwellian solutions that are worse than the disease.
The European Commission recently created a 39-member panel to explore avenues to eliminate fake news. On Twitter, it announced that it seeks to find a “balanced approach” to protecting free speech and making sure citizens get “reliable information.”
We need to find a balanced approach between the freedom of expression, media pluralism and a citizens’ right to access diverse and reliable information.
The High-Level Expert Group is one part of our activities to address the spread of #fakenews: https://t.co/Qk4xkFvR8J pic.twitter.com/0w1YEMW8Wm
— European Commission (@EU_Commission) January 15, 2018
This follows in the footsteps of individual governments in Europe that have decided that the way to defeat fake news is to have the government decide what the truth is.
Germany recently enacted a law that allows the government to censor social media and fine related companies that won’t take down what government officials deem fake news or hate speech.
France isn’t far behind. French President Emmanuel Macron proposed a ban on fake news, especially around election time, “in order to protect democracy.”
And on Tuesday, U.K. Prime Minister Theresa May announced the creation of a commission to respond to fake news called the National Security Communications Unit.
A spokesperson for the May government said: “Digital communications is constantly evolving and we are looking at ways to meet the challenging media landscape by harnessing the power of new technology for good.”
The key problem with these proposals is obvious, as the Washington Examiner highlighted in an editorial.
“One must ask who will decide which news is real and respectable, on the one hand, and which, on the other, is fake and must be censored?” the Examiner asked, before referring to George Orwell’s dystopian novel “1984”:
Will it be bureaucrats in a censor’s office in a bigger agency? Or, will their work be so extensive and important that they will need a new agency of their own? Will they go the full Orwell and name it the Ministry of Truth?
As Alexis de Tocqueville, the famed 19th-century French observer of American institutions, wrote of such government-controlled speech:
Whoever should be able to create and maintain a tribunal of this kind would waste his time in prosecuting the liberty of the press; for he would be the absolute master of the whole community and would be as free to rid himself of the authors as of their writings.
Censorship of this sort is what the Founding Fathers feared. They knew that despite the problems occasionally caused by the proliferation of fake news and false ideas, it was far more dangerous to make the government the arbiter of what is true and false rather than citizens.
Therefore, the Founders created the First Amendment and instilled a culture that respected the individual right to free speech. This was the best and perhaps only way, in the fallible world of men, ultimately to get to the truth.
There is ample evidence that the proliferation of fake news has far less consequential impact than doomsayers would admit.
A recent study concluded that while fake news often spreads far with the help of tools such as social media, it has a shallow impact on what Americans believe. This begs the question of why near-authoritarian measures would be implemented that so badly undermine free speech rights.
For all the worry over foreign, authoritarian regimes manipulating our elections with propaganda, by implementing government-run commissions on fake news we will simply be turning to repressive means to solve this perceived problem.
The proposed commissions to weigh free speech rights against delivering the “correct” news would likely have shallow utility even if they somehow could provide “accurate” stories to citizens. However, giving such panels the power to do so would be Tocqueville’s worst nightmare: a license to impose government’s views on the people and squash potentially legitimate dissent.
This is why it’s particularly absurd that the Committee to Protect Journalists, a group dedicated to promoting free speech for journalists, labeled President Donald Trump as the world’s greatest threat to press freedom.
The Federalist’s David Harsanyi wrote: “Trump’s attacks on journalists—some of it brought on by their own shoddy and partisan behavior—are often unseemly and unhealthy, but it hasn’t stopped anyone from engaging, investigating, writing, saying, protesting or sharing their deep thoughts with the entire group.”
Though Trump has proposed strengthening libel laws, a more traditional way of curbing intentional media falsehoods, his administration has made no widespread legal attack on the ability of Americans to disseminate news and views.
Saying mean things on Twitter isn’t an attack on free speech, but censorship by an unaccountable government board certainly is.
For all the hyperbole and hysteria following the coverage of the president, it has ultimately been our celebrated friends across the pond who’ve decided to take an ax to free speech, cloaked in the soothing rhetoric of protecting democracy.
At times like this we can be thankful for the Founders and the First Amendment, but this shouldn’t lull us into thinking that these terrible ideas won’t make their way here too.
Why We Don’t Need Libel and Blackmail Laws — Walter Williams article
President Donald Trump said, “We are going to take a strong look at our country’s libel laws so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts.”
The president was responding to statements made in Michael Wolff’s new book, “Fire and Fury: Inside the Trump White House.”
Our nation does not need stronger laws against libel. To the contrary, libel and slander laws should be repealed.
Let’s say exactly what libel and slander are.
The legal profession defines libel as a published false statement that is damaging to a person’s reputation. Slander is making a false spoken statement that is damaging to a person’s reputation.
There’s a question about reputation that never crosses even the sharpest legal minds. Does one’s reputation belong to him? In other words, if one’s reputation is what others think about him, whose property are other people’s thoughts?
The thoughts I have in my mind about others, and hence their reputations, belong to me.
One major benefit from decriminalizing libel and slander would be that it would reduce the value of gossip. It would reduce the value of false statements made by others.
Here’s a Gallup poll survey question: “In general, how much trust and confidence do you have in the mass media—such as newspapers, TV, and radio—when it comes to reporting the news fully, accurately, and fairly—a great deal, a fair amount, not very much or none at all?”
In 1976, 72 percent of Americans trusted the media, and today the percentage has fallen to 32. The mainstream media are so biased and dishonest that more and more Americans are using alternative news sources, which have become increasingly available electronically.
While we’re talking about bad laws dealing with libel and slander, let’s raise some questions about other laws involving speech—namely, blackmail laws.
The legal profession defines blackmail as occurring when someone demands money from a person in return for not revealing compromising or injurious information. I believe that people should not be prosecuted for blackmail.
Let’s examine it with the following scenario.
It’s 5 o’clock in the morning. You see me leaving a motel with a sweet young thing who’s obviously not Mrs. Williams. You say to me, “Professor Williams, the First Amendment to the Constitution guarantees me the right to broadcast to the entire world your conduct that I observed.”
I believe that most would agree that you have that right. You then proposition me, “If you pay me $10,000, I will not exercise my right to tell the world about your behavior.”
Now the ball is in my court. I have a right to turn down your proposition and let you tell the world about my infidelity and live with the consequences of that decision. Or I can pay you the $10,000 for your silence and live with the consequences of that decision.
In other words, blackmail fits into the category of peaceable, noncoercive voluntary exchange, just like most other transactions.
If I’m seen voluntarily giving up $10,000, the only conclusion a third party could reach is that I must have viewed myself as being better off as a result. That’s just like an instance when you see me voluntarily give up money for some other good or service—be it food, clothing, housing, or transportation. You come to the same conclusion.
What constitutes a crime can be divided into two classes—mala in se and mala prohibita.
Homicide and robbery are inherently wrong (mala in se). They involve the initiation of force against another. By contrast, blackmail (mala prohibita) offenses are considered criminal not because they violate the property or person of another but because society seeks to regulate such behavior.
By the way, married people would tend to find blackmail in their interest. Extra eyes on their spouse’s behavior, in pursuit of money, would help to ensure greater marital fidelity.
R Mall
