Justice Brennan, who gave the majority opinion for the New York Times v. Sullivan case, said that, “[Libel] must be measured by standards that satisfy the First Amendment… Thus we consider this case against the background of 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…” In this particular case, Commissioner L.B. Sullivan sued the New York Times for libel for printing a full-page advertisement titled, “Heed Their Rising Voices,” which described actions against civil rights protesters. Some of the information printed was incorrect and inaccurate, and though Commissioner L.B. Sullivan was not specifically named, he claimed that the Montgomery police that were referred to in the advertisement was aimed at him. This is an excellent example of libel per quod, especially where the advertisement implied several statements by reusing the word, “they,” when “they” could be referring to anyone such as the police, or bombers, and so on. This case established actual malice, which is defined as being “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not” (p. 89, Tedford & Herbeck). In other words, this standard requires that the plaintiff prove that the statement’s publisher knew that the statement was false, therefore putting a very high burden of proof standard on the plaintiff.
However, when thinking about the definition of actual malice, we must consider several factors that help us to be better communicators and examiners of such cases. If the one who made the defamatory statement was a professional journalist, for example, more protection would be granted, where as a less experienced journalist would not get as much protection. A second factor to consider would be the timeliness of the defamation, where protection for the speaker would be granted if it were on deadline. Thirdly, another question to be raised would be whether the original source of the defamation was believed to be reliable, in which there would be more protection given to the speaker once again.
In Canada, laws are known to be strict and more restrictive than laws of the United States as well as those in Britain, whose laws are also considered to be strict. In December of 2009, the Supreme Court of Canada released two decisions in libel suits against major newspapers that would increase protections for journalists, bloggers, and others. A defense libel for “responsible communication” was created, which the court defined as “careful reporting on matters of public interest.” In Grant v. Torstar Corp., the Court of Canada recognized a defense of responsible communication, which was designed to provide greater protection for communications on matters of public interest. The Court established several elements that the defense must be under, with two conditions that must be met in order for the defense to apply. The first element that one must prove is that the matter must be of public interest, and secondly, the defendant must show that they acted responsibly. To determine whether the defendant was responsible or not was based off another set of elements that considered: 1) the seriousness of the allegation, 2) the public importance of the matter, 3) the urgency of the matter, 4) the status and reliability of the source,) 4) whether the plaintiff’s side of the story was sought and accurately reported, 5) whether inclusion of the defamatory statement was justifiable, and 6) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth. In Grant v. Torstar, more protection was granted when dealing with the public interest. The peoples’ interest has a heavy weigh on the jury's determination of the outcome of the statement made, and where there is much public interest, the jury must then decide whether it qualifies for a responsible communication defense.
There seems to be a couple of clear distinctions when looking at the United States’ standards of libel protection versus those of Canada’s. In the United States, the plaintiff must prove fault, as determined in the court case of New York Times v. Sullivan. In Canada, the speaker is the one who must prove fault, which provides a distinction in determining the burden of proof and where it lies for the U.S. and for Canada. As mentioned earlier, more protection is granted within the United States because Canada’s courts must consider whether the defamatory statement is of public interest or not. In the U.S., public figures must know that they are to be judged more harshly. People who are known publicly in the United States and those who are in Canada each have different standards under libel protection. Canada will make no distinction on who the speaker is, whereas in America, certain people have more protection from defamation according to Gertz v. Welch.
The First Amendment clearly states that “Congress shall make no law abridging the freedom of speech or the freedom of press,” and this is a statement that I agree with. There is an importance set on each individual’s thoughts of what the meaning of truth is, and though the person who might have been “slandered” against might have taken offense, perhaps the person who said that statement believed it to be true, personally. I am in favor of promoting the rights of the individual, as U.S. courts would follow. Under actual malice, individual protection is much more protected than a Canadian court under the rules of responsible communication, which makes me lean towards siding with the United States’ view on libel. According to John Stuart Mill, in his essay, On Liberty, any opinion is bound to have truth and falsity in it, so we must challenge the statement. This concept is a much more expansive notion than that of John Milton's, who argued that people should be able to express their ideas and have them compete so that the truth might prevail in the end (p. 432, Tedford & Herbeck). I agree with these philosophers in that our search for truth is a good philosophical reason for free speech to be expressed as individuals. This ties in with the way that the United States views freedom of expression in relation to libel, in the sense that there is truth in all opinions which allows individuals to speak freely regardless of their public status. To an extent, Thomas I. Emerson’s expression-action theory also plays a role with libel laws in the United States. He argues that freedom of expression “includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses…” (p. 438, Tedford & Herbeck). Thus, a person can make a statement in an advertisement or in a blog and that should be considered an individual right to be able to express opinions publicly. Though there may be the question of “where does one draw the line?,” Emerson still has a solid and important significance in developing a better understanding of the First Amendment, which ultimately reflects upon the subject of libel laws as well. I agree with Emerson’s stance on protecting free speech, because I believe that it is important to the individual. To express one’s opinion should be protected absolutely, but when it comes to a point of physical harm or a provocation of violence, I would say that only then should speech be restrained. Punishment should be considered in the case of libel or defamation if it has caused someone physical harm, but otherwise, speech should be expressed freely, regardless of who you are.
Monday, February 8, 2010
Saturday, January 23, 2010
Ali Al-Timimi
An American-Muslim Islamic scholar, who was also a biologist and a doctor that was always “hungry for answers to larger philosophical questions,” was convicted of inciting terrorism and sentenced to life imprisonment. His familial background is also very impressive as well; both of his parents were very well-educated as well, with his father being a lawyer and his mother holding her Ph.D. in psychology. By reading a list of accomplishments he and his family have made, you would have never guessed that Dr. Al-Timimi would even have the intention of expressing bad speech regarding terrorism or anything of that sort.
However, Ali Al-Timimi was indicted in 2004 and convicted in 2005 of charges of exhortation. According to FOX News, he was “convicted of charges including soliciting others to levy war against the United States and inducing others to use firearms in violation of federal law.” He supposedly told a group of young Muslim men in northern Virginia to carry firearms and levy war against the United States. It had been reported that Al-Timimi also told them that they were obligated to work for the Taliban, and that America was at war with Islam and would attack the Taliban – though this was before the United States had even gone to Iraq. Al-Timimi also made a comment about the Columbia space shuttle disaster, which upset people because they understood it as a way of saying that he wanted Americans to die. Jumping to conclusions like this is something that U.S. Attorney Paul McNulty said in a statement, “He not only wanted Americans to die, he recruited others to his cause at a time when our country was mourning the loss of more than 3,000 people who were murdered in a heinous act of terrorism.” Ultimately, this man was charged with treasonous speech and life imprisonment without parole, which came as a result of his firearms convictions. But I have to ask, where did Attorney McNulty directly read that Al-Timimi “wants Americans to die?” Al-Timimi described the shuttle disaster as something that perhaps God had willed, but I do not think that this automatically means that Al-Timimi was happy that thousands of lives were lost. Perhaps we should test out the truth in the Attorney, but even more so in Al-Timimi, to get to the core of what his statements actually meant.
John Stuart Mill’s concept on freedom of expression is that truth should be tested in every man. I agree that any opinion or statement may have truth and/or falsity in it, which would then make us challenge the particular statement. However, J.S. Mill is also concerned with intellectual truth and freedom, which I believe applies to Al-Timimi’s case. The philosophical reason for free speech is centered on the struggle for intellectual freedom and the search for truth, according to Mill. The political reason is based on at least three points that relate to self-government, including free and open discussion of political issues, promoting participation, and allowing people the right to freely express their opinions. Lastly, there is an individual reason, which is based on a belief that everyone has the right to self-fulfillment. I also agree with Emerson’s view that Al-Timimi rightly expressed his thoughts by means of speech, which should be protected absolutely. Though some may question whether Al-Timimi had actually given instructions versus pure oral expressions, I would like to then call upon Mill’s strategy to test the truth in Al-Timimi and find out whether he had actually given instructions or not.
Clarence Brandenburg was a leader in the Ku Klux Klan in Ohio, who made several remarks that were considered as threats against the president, the Congress, and the Supreme Court. Justices Black and Douglas argued in this case that the clear-and-present-danger test had “no place in the interpretation of the First Amendment.” In the 1969 case of Brandenburg v. Ohio, the Court decided that threatening speech be protected unless the state can prove that it leads to such action. This case went beyond the use of the clear-and-present-danger doctrine, and established an incitement standard, which I believe draws a parallel line with the Al-Timimi case. We should only punish those who present an immediate danger to the public and if a threat seems very imminent. If not, then speech should be freely expressed as one desires as long as there is no consequence of harming the public.
As a result, strict scrutiny needs to be applied in Al-Timimi’s case. The government must prove that they have a truly compelling reason to charge Dr. Al-Timimi; therefore the burden of proof must be proven by the government. There must be room for the government to prove that it has a reason to regulate or punish the speech in which Al-Timimi expressed in order to punish him of any crime of misuse of speech. If there was only a rational reason to regulate speech, then it might be too broad to determine the result of Al-Timimi’s case, which is why I think that strict scrutiny should be applied.
Did Al-Timimi actually harm anyone directly? Did he even mean to, if he did? People get offended all the time and everyone has their secret conversations. But perhaps the United States is still afraid and judgmental, coming to decisions too quickly without testing the truth. Al-Timimi had only used oral means to express his thoughts and was accused of having secret conversations, but it is only fair to ask Dr. Al-Timimi of his intention and to test the truth. Furthermore, we have operated under the Brandenburg principle since the 1960s, and it still applies in this case. We must ask whether there is more than just a clear-and-present-danger in this case, and determine whether there was actual harm caused directly by Al-Timimi’s words.
However, Ali Al-Timimi was indicted in 2004 and convicted in 2005 of charges of exhortation. According to FOX News, he was “convicted of charges including soliciting others to levy war against the United States and inducing others to use firearms in violation of federal law.” He supposedly told a group of young Muslim men in northern Virginia to carry firearms and levy war against the United States. It had been reported that Al-Timimi also told them that they were obligated to work for the Taliban, and that America was at war with Islam and would attack the Taliban – though this was before the United States had even gone to Iraq. Al-Timimi also made a comment about the Columbia space shuttle disaster, which upset people because they understood it as a way of saying that he wanted Americans to die. Jumping to conclusions like this is something that U.S. Attorney Paul McNulty said in a statement, “He not only wanted Americans to die, he recruited others to his cause at a time when our country was mourning the loss of more than 3,000 people who were murdered in a heinous act of terrorism.” Ultimately, this man was charged with treasonous speech and life imprisonment without parole, which came as a result of his firearms convictions. But I have to ask, where did Attorney McNulty directly read that Al-Timimi “wants Americans to die?” Al-Timimi described the shuttle disaster as something that perhaps God had willed, but I do not think that this automatically means that Al-Timimi was happy that thousands of lives were lost. Perhaps we should test out the truth in the Attorney, but even more so in Al-Timimi, to get to the core of what his statements actually meant.
John Stuart Mill’s concept on freedom of expression is that truth should be tested in every man. I agree that any opinion or statement may have truth and/or falsity in it, which would then make us challenge the particular statement. However, J.S. Mill is also concerned with intellectual truth and freedom, which I believe applies to Al-Timimi’s case. The philosophical reason for free speech is centered on the struggle for intellectual freedom and the search for truth, according to Mill. The political reason is based on at least three points that relate to self-government, including free and open discussion of political issues, promoting participation, and allowing people the right to freely express their opinions. Lastly, there is an individual reason, which is based on a belief that everyone has the right to self-fulfillment. I also agree with Emerson’s view that Al-Timimi rightly expressed his thoughts by means of speech, which should be protected absolutely. Though some may question whether Al-Timimi had actually given instructions versus pure oral expressions, I would like to then call upon Mill’s strategy to test the truth in Al-Timimi and find out whether he had actually given instructions or not.
Clarence Brandenburg was a leader in the Ku Klux Klan in Ohio, who made several remarks that were considered as threats against the president, the Congress, and the Supreme Court. Justices Black and Douglas argued in this case that the clear-and-present-danger test had “no place in the interpretation of the First Amendment.” In the 1969 case of Brandenburg v. Ohio, the Court decided that threatening speech be protected unless the state can prove that it leads to such action. This case went beyond the use of the clear-and-present-danger doctrine, and established an incitement standard, which I believe draws a parallel line with the Al-Timimi case. We should only punish those who present an immediate danger to the public and if a threat seems very imminent. If not, then speech should be freely expressed as one desires as long as there is no consequence of harming the public.
As a result, strict scrutiny needs to be applied in Al-Timimi’s case. The government must prove that they have a truly compelling reason to charge Dr. Al-Timimi; therefore the burden of proof must be proven by the government. There must be room for the government to prove that it has a reason to regulate or punish the speech in which Al-Timimi expressed in order to punish him of any crime of misuse of speech. If there was only a rational reason to regulate speech, then it might be too broad to determine the result of Al-Timimi’s case, which is why I think that strict scrutiny should be applied.
Did Al-Timimi actually harm anyone directly? Did he even mean to, if he did? People get offended all the time and everyone has their secret conversations. But perhaps the United States is still afraid and judgmental, coming to decisions too quickly without testing the truth. Al-Timimi had only used oral means to express his thoughts and was accused of having secret conversations, but it is only fair to ask Dr. Al-Timimi of his intention and to test the truth. Furthermore, we have operated under the Brandenburg principle since the 1960s, and it still applies in this case. We must ask whether there is more than just a clear-and-present-danger in this case, and determine whether there was actual harm caused directly by Al-Timimi’s words.
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