A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions–and to do so on pain of libel judgments virtually unlimited in amount–leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.
It was fashionable well before 1964, when Justice William Brennan wrote those words, to criticize the United States Supreme Court for "judicial activism" in which the Court stretches the words of the Constitution beyond their plain, or literal, meaning to invent new freedoms beyond those obviously meant by James Madison and other authors of the United States Constitution. In 1964, it was obvious to L. B. Sullivan, the Public Safety Commissioner of Montgomery Alabama, that the First Amendment did not permit the New York Times to publish an advertisement falsely attributing barbaric treatment of Martin Luther King and other civil rights protesters to the Montgomery Police Department.
After all, the words "Congress shall make no law … abridging the freedom of speech, or of the press" don't explicitly say anything about state law, or the law of libel, or about the importance of free debate on political issues. L. B. Sullivan convinced a jury of twelve of his fellow white citizens of Montgomery that the New York Times had published these false statements:
In Montgomery, Alabama, after students sang "My Country, 'Tis of Thee" on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to reregister, their dining hall was padlocked in an attempt to starve them into submission.
Again and again, the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home, almost killing his wife and child. They have assaulted his person. They have arrested him seven times–for "speeding," "loitering" and similar "offenses." And now they have charged him with "perjury"–a felony under which they could imprison him for ten years.
When in fact the protesters at the Alabama capitol sang "The Star Spangled Banner," not "My Country, 'Tis of Thee," and Dr. King was arrested only four times in Montgomery, not seven times.
So of course Mr. Sullivan was entitled to a libel judgment, to protect his reputation and that of the Montgomery Police, from outsiders such as the New York Times who printed lies, libel, and calumny without knowing the true facts. That Mr. Sullivan was a government official, and that the false criticism concerned the government of which he was a part, meant nothing. Facts is facts, and a false statement about the Montgomery Police Commissioner is every bit as actionable as a false statement about the lowest bum on Montgomery's skid row.
Except that it isn't. Meddling Justices of the Supreme Court found, for some reason, that it's important for newspapers, and private citizens, to speak out about outrages such as firebombings, police beatings, and school padlockings, even if they get details like the song protesters sang as they were clubbed over the head, or the number of times Martin Luther King was arrested, flat-out wrong. According to the activists of the Supreme Court, in order to maintain a libel action, a public figure like L. B. Sullivan would have to prove actual malice, that the statements over which the suit was filed were not just false, not just disparaging, but utterly unreasonable, founded on no investigation, and made with no intent save to harm reputation. Something like (since a dead man can't file a defamation action):
L. B. Sullivan sexually molests puppies every Sunday morning in the back alley behind the Piggly Wiggly.
That's clearly malicious, and if by some miracle the cyborg body of L. B. Sullivan lives on today, I apologize to him.
But the Court held that the right of the public to criticize their government includes the right to criticize public officials, and that that right is too important to have it bogged down by lawsuits about whether Inspector Callahan, the San Francisco police detective who killed an unarmed suspect in the Scorpio murder case, fired six shots …
Or only five.
Of course, for those who disapprove of all this debate, all this criticism of the better sort of people like L. B. Sullivan, and all this horrid untidiness in which the hoi polloi are free to say the vilest things about government officials, there's a better land. A land where ordinary people don't have the right to exaggerate the number of times some uppity protester got arrested.
That land is Canada.
In Canada, you'd better watch what you say if you want to criticize The Man. You'd better make sure every word is the literal truth, and that you can back it up with records.
Ask Ezra Levant.
Ezra Levant, the Canadian blogger who was just ordered to pay a $25,000 judgment to Giacomo Vigna, a Canadian government official and lawyer, for … making fun of Vigna.
Giacomo Vigna is a professional censor. Levant, who has a history as a free speech activist and opponent of Canada's censorship commission, has been censored for the offense of … criticizing a censor.
Specifically, Vigna is an attorney for the Canadian Human Rights Commission, the government body charged with censoring hate speech. In March 2008, Levant made fun of Vigna for his successful efforts to halt a hearing in which staff of the Human Rights Commission were to be cross-examined about their curious activities on the internet (among other things, former HRC lawyer Richard Warman, a professional plaintiff, used a pseudonym to reveal the name of and post an apology by an ex-white supremacist on an internet forum populated by neo-Nazis). Vigna claimed, in an effort to halt the hearing, that:
I don't feel in a serene state of mind to proceed with the file today. I don't feel very well. I feel dizzy, I feel anxiety, and I am not in a serene state of mind to proceed with this file today.
And got the hearing, in a high-profile and politically charged speech prosecution, put off with the promise he would produce a doctor's note. For which Vigna was richly, and deservedly, mocked by Levant.
Levant's mistake? In mocking Giacomo "Serenity Now!" Vigna after the fact, Levant was unaware that Vigna had in fact produced a doctor's note. Perhaps something along the lines of:
Please excuse Giacomo from court. He was not in a serene state of mind last Tuesday. He didn't feel very well. He felt dizzy. He felt anxiety. He was not in a serene state of mind to proceed with a hearing that would have been embarrassing to the government agency he serves. I should know. I am a medical doctor. I own a mansion and a yacht.
Of course, in a world where doctors prescribe marijuana for "high anxiety" and the like, I'm sure it was easy for Vigna to get a doctor's note. Just as easy as it was for Levant to overlook that fact, as the note was never put into evidence in the trial Levant was covering.
And a costly mistake it was. It cost Levant $25,000, on top of untold legal fees, to learn that lesson. And it will cost him more on appeal, the outcome of which isn't certain in a country as hostile to free political speech as Canada.
Levant, wisely, hasn't said a word about the verdict. Neither have many of other Canadian bloggers from whom we'd expect to hear after a travesty like this. They're probably taking stock of their options, with their lawyers, because they're being sued by the censors themselves.
And that's the point. Vigna didn't file this suit to salvage his reputation. A prosecutor who would beg off from trial by whining about his inner feelings will have no reputation to save once word gets out. Vigna filed this suit to stifle Levant's legitimate criticism of his agency and his methods. To make an example of Levant, and to warn more timid souls who would dare to criticize the censors of the Canadian Human Rights Commission. To censor an inconvenient critic who couldn't be silenced by the usual accusation of hate speech.
And so I sit here, safe in my American home, writing of Ezra Levant's misfortune in living in a country where he could be bankrupted for making a small mistake of fact in criticizing the actions of a government official. A government official who could sue me for saying many of the same things, had I the misfortune to live in his miserable country.
After all, I am explicitly comparing Giacomo Vigna to a man who ordered the arrest and beating of Martin Luther King.
I have a lot to be thankful for this holiday. I'm thankful for the First Amendment, and I'm thankful for my activist Supreme Court, which invents rights out of nowhere to protect me from government officials like L. B. Sullivan, and like Giacomo Vigna.