Sabir Shah
LAHORE: While the Pakistan People’s Party government is doing a lot more than just moving courts to harass the cream of journalists working with the Jang Group in a bid to silence them, it needs to learn a bit from the American legal history which shows that media outlets having the audacity to criticise governments have always won laurels in the court of law for the last 275 years.
The history of governments filing cases against news organisations dates back to 1735, when an American publisher John Peter Zenger had dared to print articles critical of the then New York governor William Cosby.
The famous trial of John Zenger hence showed the perils facing a publisher possessing the courage to take the bull by the horns. Although Governor Cosby had Zenger charged with seditious libel, the publisher’s attorney had successfully persuaded the jury that the case was weak enough to be considered for a libel action.
Attorney Andrew Hamilton’s arguments subsequently had Zenger acquitted, the publisher’s acquittal is still deemed a landmark case in American jurisprudence, whereby the freedom of expression was upheld by the court.
However, the famous Zenger case did not create a new era of Press freedom and various benches of US Supreme Courts had to uphold this right of complete freedom granted to the American citizens and the Press by the First Amendment of the 1787 American Constitution, time and again.
In 1907, the US Apex Court had ruled that the main purpose of the First Amendment was to prevent all such previous restraints upon publications as had been practiced by other governments.
In the famous New York Times versus Sullivan Case of 1964, the court had reasoned that an erroneous statement was inevitable in free debate and that punishing critics of public officials for any factual errors would chill speech about matters of public interest.
This case had risen out of the backdrop of the civil rights movement. The New York Times had published an editorial advertisement in 1960 titled “Heed Their Rising Voices” to defend eminent human rights activist Martin Luther King.
The full-page advertisement had detailed abuses suffered by Southern black students at the hands of the police in the state of Alabama particularly, but at least two paragraphs in the advertisement contained factual errors.
Even though he was not mentioned by name in the article, the Montgomery City Police Commissioner L.B. Sullivan sued The New York Times for printing this advertisement. Sullivan demanded a retraction from the New York Times, which was denied. The paper did print a retraction for Alabama Governor John Patterson.
After not receiving a retraction, Sullivan then sued the newspaper for defamation in Alabama state court. The trial judge said that the newspaper could be held liable if the jury determined that the news organisation had published any statements concerning Police Commissioner Sullivan.
The jury awarded Sullivan $500,000. After this award was upheld by the Alabama appellate courts, The New York Times filed an appeal with the US Supreme Court, which reversed the order of the lower courts.
The Apex Court found that the law applied by the Alabama courts was constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press, that were required by the Constitution in a libel action brought by a public official against critics of his official conduct.
The Supreme Court ruled that libel could claim no talismanic immunity from constitutional limitations, but must be measured by standards that satisfied the Constitutional provisions in this context.
The Court also prohibited a public official from recovering damages for a defamatory falsehood relating to his official conduct, unless he proved that the statement was made with actual malice. The court required a public official defamation plaintiff to show evidence of actual malice or reckless disregard for the truth by “convincing clarity” and convincing evidence.
In the New York Times Company versus United States Case of 1971, the US Supreme Court had made it possible for prestigious American newspapers “The New York Times” and “The Washington Post” to publish the then-classified Pentagon Papers without risk of government censure.
In this case, the then US President Richard Nixon had claimed Executive authority to force The New York Times to suspend publication of classified information in its possession. This was the time when the US had been overtly at war with North Vietnam for six years. At this point, 59,000 American soldiers had died and the Nixon administration was facing widespread dissent from the American public.
In this case, the US Supreme Court had ruled that the Constitution did protect The New York Times’ right to print the said confidential material. Although the US Attorney General John Mitchell had cited Section 793 of the Espionage Act as the cause for the United States to sue to bar further publication of stories based upon the Pentagon Papers, the American Supreme Court ruled that the government had not met its “heavy burden” of showing a justification for a prior restraint.
In a 6-3 decision, the Court had issued a brief opinion, upholding the decisions of the two lower courts to reject the government’s request for an injunction in this case. The Justices’ opinions in this case had included different degrees of support for the clear superiority of the Constitution and no arbiter fully supported the US government’s case.
Due of these factors, Justice Hugo Black wrote an opinion that elaborated his view of the absolute superiority of the First Amendment. He was against any interference with freedom of expression and largely found the content and source of the documents to be immaterial.
Justice William Douglas had observed that the need for a free Press as a check on government prevented any official restraint on media. Justices William Brennan, Potter Stewart and Byron White had viewed that it was the responsibility of the Executive to ensure national security through the protection of its information.
The judges who ruled in favour of “The New York Times” and “The Washington Post” had opined that since the only effective restraint upon Executive policy and power lay in an enlightened electorate, therefore, only an informed and critical public opinion could alone protect the values of a democratic government.
Justice Thurgood Marshall had argued that the term “national security” was too broad to legitimise such prior restraints upon any individual or organisation.
To understand defamation, libel and slander in an even better way, the 1996 case of one of America’s most popular television anchors, Oprah Winfrey, can provide a lot of insight.
Oprah Winfrey’s battle with Texas ranchers over comments made on her show about “Mad Cow Disease” became a headline-grabbing defamation case. Given Winfrey’s incredible popularity, the case attracted worldwide attention.
In March 1996, British health authorities had announced that scientists had linked the consumption of beef with “Bovine Spongiform Encephalopathy” or the “Mad Cow Disease.”
This postulated link between the consumption of beef and brain disease caused great panic in Britain. The panic spread to America through Oprah Winfrey’s show, which featured comments from a vegetarian activist who had believed that “Mad Cow Disease” could trigger an epidemic bigger than AIDS in the US.
The show apparently had a devastating impact on cattle prices and sales and in May 1996, Winfrey was sued in a state court under the Texas state’s food-disparagement or veggie-libel Law. The case was later moved to federal court and consolidated with a separate action filed by the Texas Beef Group. The case proceeded to a jury. Before submitting the case to the jury, US District Judge Mary Robinson had dismissed the claims under the food-disparagement statute.
Judge Robinson also rejected the plaintiffs’ defamation claims, viewing that none of the plaintiffs were mentioned by name in the Oprah Winfrey Show under question. Consequently, in February 1998, the jury rejected the plaintiffs’ claim against Winfrey.
The plaintiffs filed an appeal with the 5th US Circuit Court of Appeals, but to no avail as the lower court had determined that live cattle did not constitute a “perishable food product” and that the defendants did not knowingly disseminate false information about beef.
The court, however, adjudicated that the Oprah Winfrey Show may have dramatised the “Mad Cow Disease” scare, but held that the show and its guests did not defame the beef producers.
This decision had a discernible impact on the public’s understanding of defamation and the First Amendment and according to leading US law scholars, this particular court verdict had taught the Americans a lot about the defamation law.These scholars still argue that the decision in Winfrey’s case taught the public that even false statements could be allowed on vital public issues.
Source: Dawn
Date:5/18/2010
