Ducking the First Amendment:
By JOANNE MARINER
|Monday, Mar. 17, 2003|
Seymour Hersh, the celebrated investigative journalist, is no stranger to the pressures of reporting on controversial issues during wartime. After the verdict was handed down in the criminal prosecution of the My Lai massacre, a story he broke during the Vietnam War, he felt so threatened by angry soldiers that he went into hiding.
It is a telling sign of the times that Hersh is once again under attack for his reporting. Last week, just as Hersh was giving a speech in which he publicly warned that journalists were frightened and intimidated, senior Pentagon advisor Richard Perle was telling the New York Sun that he planned to file suit against Hersh for libel.
Another sign of the times (or perhaps just a hallmark of the Bush Administration): Perle has a strategy for evading constitutional protections against this action. Although Perle is an American, Hersh is an American, and the magazine in which Hersh printed his allegedly defamatory article is published in the United States, Perle told the Sun that he would file suit in Britain.
Known as the "libel capital of the world" because of its plaintiff-friendly rules on defamation, Britain has nothing remotely comparable to the First Amendment's protections for freedom of the press. In the U.S. courts, Perle would have to prove that Hersh's statements were false and that they were made with "actual malice," making it likely that his suit would be dismissed in the early stages of litigation. In England, where the law establishes a rebuttable presumption that a defamatory statement is false, Perle stands a far better chance of dragging Hersh into a long and costly court battle.
War and Lunch
Perle, a former assistant secretary of defense in the Reagan administration, is currently the chairman of the influential Defense Policy Board, an advisory panel to the Defense Department. He is also a businessman, serving as managing partner of a private venture capital firm called Trireme Partners that invests primarily in companies that deal in goods and services related to national security.
Last January, as reported in an article that Hersh published in The New Yorker, Perle may have inappropriately mixed his public and private roles. The article states that Perle met notorious Saudi arms trader Adnan Khashoggi and another Saudi businessman for lunch on January 3 in the French city of Marseilles. On the menu was a discussion of the upcoming war and, according to the two Saudis, whom Hersh interviewed, the opportunities for investment in Perle's company.
Hersh's article does not directly accuse Perle of wrongdoing. What it does is note that Perle's dual roles as unpaid Pentagon advisor and well-paid venture capitalist raise the possibility of conflicts of interest. It also suggests that Perle has not been overly scrupulous in trying to avoid the appearance of such conflicts.
Perle, who has been credited as the intellectual force behind the Iraq war, insists that his hawkish views are not up for sale. While Hersh does not challenge him on this point, he suggests that Perle should take greater care to insulate his foreign policy connections from his financial dealings.
Journalists and Terrorists
Hersh's New Yorker article was published in early March, and Perle's response was swift and vicious. Questioned on CNN on March 9 about allegations made in the article, Perle attacked Hersh's integrity as a journalist. Hersh was, Perle asserted, "the closest thing American journalism has to a terrorist."
The following day, in an interview on the MSNBC show "Hardball," Perle was questioned about whether he planned to go to court in response to the article. "If any reasonable lawyer tells me there's a prospect of winning a case, I would be delighted to sue Sy Hersh," he announced.
No reasonable lawyer would advise a suit in the U.S., given the First Amendment's robust protections on freedom of speech. But, days later, when Perle announced that he would indeed be filing suit for libel, he added an unexpected twist to the dispute: he said that the case would be filed in Britain.
Britain and the United States
From the standpoint of legal strategy, Perle's forum-shopping preferences are understandable. (And because The New Yorker is distributed in Britain, as well as available there on the Internet, Britain is a legally available forum.) If Perle were to bring suit in the United States, he would face daunting obstacles.
First, given his prominent role in shaping foreign policy, he would be considered a public figure. Under the more stringent First Amendment protections applicable to libel suits against public figures, Perle would have the burden of proving that Hersh made the allegedly defamatory statements with actual malice.
To prove actual malice, Perle would have to show that Hersh knew that the statements were false or that he had a reckless disregard for their truth or falsity. Under these standards, it is likely that the suit would be dismissed on a motion for summary judgment.
Interviewed by the Washington Post last Friday, Hersh noted that Perle has yet to specify a single inaccuracy in Hersh's article. Yet one of the beauties of British libel law, from the plaintiff's perspective, is that the failure to showing falsity is no bar to a successful lawsuit.
Under British law, any published statements that negatively affect a person's reputation are presumed to be false. In contrast to the American constitutional rule, the burden is on the defendant to prove that the statements are true. Even more importantly, in terms of the viability of the suit, British libel law does not distinguish between private persons and public figures, and extends no special protection to criticisms directed at members of the latter category.
Because it so clearly favors plaintiffs, English libel law has drawn the criticism of the European Court of Human Rights. More to the point, from Perle's perspective, is that U.S. courts have frequently refused to enforce English libel judgments against American defendants, opposing them on public policy grounds.
In a 1992 case, a New York state court set out the reasoning behind such a refusal. The First Amendment's protections on speech and the press, the court explained, "would be seriously jeopardized by the entry of foreign libel judgments granted pursuant to standards deemed appropriate in England but considered antithetical to the protections afforded the press by the U.S. Constitution."
Juries and War
Although Perle's planned lawsuit would stand a much greater chance of success were it to filed in Britain rather than in the United States, it is still a gamble. The British courts, which have shown a recent impatience with such overt forum-shopping strategies, could refuse to hear the case on the ground that U.S. courts would provide a more suitable forum.
Moreover, in spite of the country's pro-plaintiff libel laws, the case could still easily lose on the merits. As demonstrated by a failed suit brought recently by revisionist historian David Irving against an author that he claimed had libeled him with respect to his writings about the Holocaust, an offensive litigation strategy can backfire dramatically. And as the losing party under British rules of litigation, Perle would be responsible for paying Hersh's legal costs.
This is certainly not the most propitious moment for Perle to offer up his credibility to a British jury. A growing number of Britons are opposed to war on Iraq and suspicious of American motives for seeking to enter such a war. More than a million people attended recent anti-war protests in British cities. According to the latest polls, only 19 percent of the British public would back British participation in an attack on Iraq without a new UN resolution. Perle, the American hawk personified, might face a skeptical and unsympathetic audience.
Whatever the outcome of the suit, Perle's threat to file it has already sent a chilling message to the American press. With war in Iraq imminent, the stakes are high. Already the most divisive U.S. military intervention since Vietnam, the war will place heavy demands on journalists' skill and integrity.
With courageous investigative reporting more than ever necessary, it is no time to subject American journalists to British rules.