Month: April 2023

Why is the government trying to ban TikTok? The popular social media app, which is owned by ByteDance, a Chinese company, has come under fire from both Republicans and Democrats who are determined to get rid of it. They’re worried the Chinese government has too much influence on the platform.

Never mind that more than 150 million Americans use TikTok to express themselves creatively, consume news they wouldn’t find elsewhere, and keep themselves entertained—nanny state politicians like Sen. Josh Hawley (R–Mo.) and President Joe Biden think they should have the power to control what kinds of foreign content you’re allowed to see.

Not everyone in Washington thinks banning TikTok is a good idea. Sen. Rand Paul (R–Ky.) recently denounced the idea of giving the Biden administration more power to control social media.

Paul is right. Here are three reasons why letting the federal government prohibit TikTok is an idiotic idea.

First off, the dangers of TikTok have been overstated. Yes, it’s true you can find really vile content on the platform—it’s not all dance videos, recipes, and makeup tutorials. But that’s not unique to TikTok; there’s bad stuff in all corners of the internet. Just because a website or an app is bad sometimes for some people doesn’t mean we should violate the First Amendment rights of millions of others. Censorship is censorship, even if it’s well-intended. We should leave it to individuals, families, and schools to set restrictions on social media usage—not the federal government.

It’s true that TikTok is unique in that the Chinese Communist Party (CCP) can pressure the company in ways that are bad. It’s very likely that TikTok mutes certain controversial subjects, and takes down the accounts of dissidents in order to protect the CCP.

But the sad truth is that the U.S. government has applied similar pressure to American social media companies like Facebook and Twitter. Journalists have discovered that federal agencies like the FBI and the Department of Homeland Security regularly asked Twitter to delete content the government didn’t approve of. My own reporting for Reason has revealed that the White House and the Centers for Disease Control and Prevention applied constant pressure on Facebook during the pandemic to restrict speech. If members of Congress are really so worried about government propagandists controlling the discourse on social media, they should start by putting their own house in order.

Lastly, any new law that gives the feds the power to ban TikTok could easily be weaponized against other companies. The RESTRICT Act, which is co-sponsored by Sens. John Thune (R–S.D.) and Mark Warner (D–Va.), empowers the Commerce Department to take action against foreign threats on social media. But lawmakers, national intelligence experts, and mainstream media pundits are constantly accusing Facebook of allowing too much foreign misinformation on the platform. This is the PATRIOT Act 2.0: If we give the government more tools to police TikTok, it’s going to use them against all of us.

So let’s leave TikTok alone. Not just because of the dance videos—but also because of the First Amendment.

Edited by John Osterhoudt; camera by Isaac Reese

Photo: Imagine China/Newscom; Petr Svancara/ZUMAPRESS/Newscom; Ron Sachs/CNP/ SplashNews/Newscom; Chris Kleponis—CNP/picture alliance / Consolidated News Photos/Newscom; Tom Williams/CQ Roll Call/Newscom; Graeme Sloan/Sipa USA/Newscom

The post Rand Paul Is Right: Banning TikTok Would Be Idiotic appeared first on Reason.com.

from Latest https://ift.tt/SuNgk7x
via IFTTT

To better understand the debate about possible defamation liability for OpenAI, based on its Large Libel Models tendency to sometimes communicate entirely made-up quotes about people—supposedly (but not actually) drawn from leading media outlets— let’s consider this hypothetical:

Say a company called OpenRecords creates and operates a program called CheckBKG, which does background checks on people. You go to CheckBKG.com, enter a name, and the program reviews a wide range of publicly available court records and provides a list of the criminal and civil cases in which the person has been found liable, including quotes from relevant court records. But unfortunately, some of the time the program errs, reporting information from an entirely wrong person’s record, or even misquoting a record. CheckBKG acknowledges that the information may be erroneous, but also touts how good a job CheckBKG generally does compared to ordinary humans.

Someone goes to CheckBKG.com and searches for someone else’s name (let’s say the name Jack Schmack, to make it a bit unusual). Out comes a statement that Schmack has been convicted of child molestation and found liable in a civil case for sexual harassment, with quotes purportedly from the indictment and the trial court’s findings of fact. The statement accurately notes Schmack’s employer and place of residence, so readers will think this is about the right Schmack.

But it turns out that the statements about the court cases are wrong: The court records actually refer to someone entirely different (indeed, not someone named Schmack), or the software missummarized the court records and wrongly reported an acquittal as a conviction and a dismissal of the civil lawsuit as a finding of liability. The quotes are also entirely made up by CheckBKG. It also turns out that Schmack has informed OpenRecords that its software is communicating false results about him, but OpenRecords hasn’t taken steps to stop CheckBKG from doing so.

It seems to me that Schmack would be able to sue OpenRecords for defamation (let’s set aside whether there are any specialized statutory schemes governing background checks, since I just want to explore the common-law defamation tort here):

1. OpenRecords is “publishing” false and reputation-damaging information about Schmack, as defamation law understands the term “publishing”—communication to even one person other than Schmack is sufficient for defamation liability, though here it seems likely that OpenRecords would communicate it to other people over time as well.
2. That this publication is happening through a program doesn’t keep it from being defamatory, just as physical injuries caused by a computer program can be actionable. Of course, the program itself can’t be liable, just as a book can’t be liable—but the program’s developer and operator (OpenRecords) can be liable, just like an author or publisher can be liable.
3. OpenRecords isn’t protected by 230, since it’s being faulted for errors that its software introduces into the data. (The claim isn’t that the underlying conviction information in court records is wrong, but that OpenRecords is misreporting that information.)
4. OpenRecords’ noting that the information may be erroneous doesn’t keep its statements from being defamatory. A speaker’s noting that the allegation he’s conveying is a rumor (which signals a risk of error) or that the allegation he’s conveying is contradicted by the person being accused (which likewise signal a risks of error) doesn’t keep the statements from being defamatory; likewise here.
5. OpenRecords now knows that its software is outputting false statements about Schmack, so if it doesn’t take steps to prevent that or at least to diminish the risk (assuming some such steps are technologically feasible), it can’t defend itself on the grounds that this is just an innocent error.
6. Indeed, I’d say that, OpenRecords might be liable on a negligence theory even before being alerted to the specific false statement about Schmack (if Schmack isn’t a public official or public figure), if Schmack can show that it carelessly implemented algorithms that created an unreasonable risk of error—for instance, created algorithms that would routinely make up fake quotes, in a situation where a reasonably effective and less harmful alternative was available.

If I’m right on these points, then it seems to me that OpenAI is likewise potentially liable for false and reputation-damaging communications produced by ChatGPT-4 (and Google is as to Bard). True, CheckBKG is narrower in scope than OpenAI, but I don’t think that matters to the general analysis (though it might influence the application of the negligence test, see below). Both are tools aimed at providing useful information—CheckBKG isn’t, for instance, specifically designed to produce defamation. Both may, however, lead to liability for their creators when they provide false and reputation-damaging information.

I say “potentially” because of course this turns on various facts, including whether there are reasonable ways of blocking known defamatory falsehoods from ChatGPT-4’s output (once OpenAI is informed that those defamatory falsehoods are being generated), and whether there are reasonable alternative designs that would, for instance, prevent ChatGPT-4’s output from containing fake defamatory quotes. But I think that the overall shape of the legal analysis would be much the same.

The post Large Libel Models: The CheckBKG Analogy appeared first on Reason.com.

from Latest https://ift.tt/iweTSdF
via IFTTT

Research links internet use to global well-being. In a new paper, researchers from Tilburg University and the University of Oxford look at how internet access and use are linked to well-being in countries around the world. Overall, their results showed that across eight well-being outcomes, “individuals who had access to, or actively used the internet reported meaningfully greater well-being than those who did not,” the authors wrote.

For the study, authors, Matti Vuorre and Andrew K. Przybylski examined measures of well-being across more than 2.4 million people for the time period of 2006 through 2021. Their data come from the Gallup World Poll, a nationally representative annual survey of about 1,000 people from each of 164 countries.

The key questions for the purposes of this research were whether respondents had home internet access (a question Gallup asked in the 2006 through 2015 surveys) or whether they had “access to the internet in any way, whether on a mobile phone, a computer, or some other device” (asked from 2016 onward). From 2017, Gallup also asked, “Can your mobile phone be used to access the Internet?” Additionally, later surveys looked at internet use by asking respondents if they had used the internet in the past seven days.

In all of the Gallup World Poll surveys, respondents were asked about life satisfaction, reports of daily negative and positive experiences, and two measures of social support (“someone in your life always encourages you to be healthy” and “your friends and family give you positive energy every day”). The researchers also used data from the Gallup-Sharecare Global Well-being Index taken in 2013–2015. These included questions related to purpose (“liking what one does each day and being motivated to achieve one’s goals”), community well-being (“liking where one lives, feeling safe and having pride in one’s community”), physical well-being (“having good health and enough energy to get things done daily”), and social well-being (“having supportive relationships and love in your life”).

“The associations between internet access and well-being were consistently positive,” reported Vuorre and Przybylski:

For the average country, individuals who had access to the internet reported on average approximately 0.08 units greater life satisfaction, positive experiences, and social life satisfaction, and 0.06 units lower negative experiences than individuals who did not have access. Results regarding the more temporally restricted (2013-2015) GWBI outcomes portrayed a similar picture: Individuals with internet access reported approximately 0.08 units greater experiences of purpose, 0.1 unit greater physical, 0.02 units greater community, and 0.08 units greater social well-being than individuals without access.

One big confounding factor here is obviously income—those with lower incomes may be less likely to have internet access and less likely to report positively on measures of well-being. For what it’s worth, the authors attempted to adjust for income and other potentially confounding variables, including education status, work status, relationship status, whether they had health problems, and whether they were able to meet basic food and shelter needs.

The researchers also found strong links between active internet use and other measures of well-being. “Being an active internet user was associated with 0.03 to 0.08 unit increases in life satisfaction, positive experiences, social well-being and physical well-being, and with a 0.04 unit decrease in negative experiences,” they reported.

The amount of internet use is less obviously linked to socioeconomic status, so these results may be more compelling.

The authors note that the magnitude of the difference between internet users and nonusers was not huge, but it was also “not negligible” (“e.g. the median life satisfaction difference was 0.36 standard deviations between individuals who had access to the internet and those who did not”). And the links held across different types of analyses (“in a multiverse of 33,792 analysis specifications. 84.9% of these resulted in positive and statistically significant associations between internet connectivity and well-being”) and across demographic groups.

If nothing else, the results suggest that internet access doesn’t cause an overall decrease in well-being.

The only “notable group of negative associations” between internet use and well-being was found in the category of community well-being (“liking where one lives, feeling safe and having pride in one’s community”). Among 15-to-24-year-olds, and particularly women in this age group, the association between internet access or usage and perceptions of community well-being was negative.

The authors expressed caution about making too much of their results for several reasons, including the fact that self-reported technology usage isn’t terribly reliable and the fact that “there are likely myriad other features about the human condition that are associated with both uptake of internet technologies and well-being in such a manner that they might cause positive associations to be observed.” While a causal relationship between internet access or usage and well-being cannot be assumed, “we nevertheless remain hopeful that the clarity with which we hoped to address this issue will provide a solid foundation for future work on internet technologies causal effect,” they wrote.

FREE MINDS 

Federal judge halts Tennessee drag law. Tennessee’s anti–drag performance law has been temporarily halted. Judge Thomas L. Parker of the U.S. District Court for the Western District of Tennessee ruled in favor of the LGBTQ theater group Friends of George’s, which sought a temporary injunction against enforcement of the law as it challenges the law’s constitutionality. “Drag is not a new art form; nor is it inherently – or even frequently – indecent,” the group argued.

The new Tennessee law deems “male or female impersonators who provide entertainment that appeals to a prurient interest, or similar entertainers” to be adult cabaret performers, a category that also includes “topless dancers, go-go dancers, exotic dancers, [and] strippers.” The law also bans “adult-oriented performances that are harmful to minors” from taking place on public property or in places where they may be viewed by kids. Violators are subject to misdemeanor charges on a first offense and felony charges for subsequent offenses.

“The inclusion of ‘male and female impersonators’ is intended to block children from attending drag performances, but the addition of the clause ‘that appeals to a prurient interest’ makes the meaning vague,” noted Scott Shackford for Reason in March. The Volokh Conspiracy‘s Eugene Volokh has more on the legal issues pertaining to the law here.

“The Court can think of at least three scenarios in which Plaintiff is likely to succeed on the merits,” wrote Parker in his decision. These include Friends of George’s arguments that “the regulation here is content-based,” which means it’s presumptively unconstitutional unless “it is justified by a compelling government interest, and it is narrowly drawn to serve that interest.”

“If Tennessee wishes to exercise its police power in restricting speech it considers obscene, it must do so within the constraints and framework of the United States Constitution,” Parker wrote in his conclusion. “The Court finds that, as it stands, the record here suggests that when the legislature passed this Statute, it missed the mark.”

FREE MARKETS 

More micromanaging business from Biden’s FTC. Continuing President Joe Biden’s fixation with managing the minutiae of the American consumer experience, his administration is now turning its attention to subscription services that are hard to cancel. The Federal Trade Commission (FTC) wants “to penalize overly complicated subscription cancellations at $50,000 a pop,” reports Reason‘s Matt Welch. A proposed FTC rule “requires negative-option sellers to provide, under maximum penalty of $50,120 per violation per day, a mechanism for cancellation that’s ‘at least as simple as the one used to initiate the charge,’ via the same medium (app, website, phone, mail, etc.).”

Negative option marketing refers to transactions in which a failure to take proactive action represents consent to continue services or purchase an item, such as in the case where a free trial must be canceled within a given time frame or else a consumer will be charged.

“The click-to-cancel rule is guaranteed to jack up compliance costs (which hurt small entities hardest) and drive some current practitioners out of the negative-option market altogether,” warns Welch. “No more easy-peasy renewals for your favorite poetry magazine or coffee roaster.”

Christine Wilson, the FTC’s only Republican appointee (who stepped down at the end of March), voted against the proposed rule, noting that it went way beyond the way FTC Chair Lina Khan and other proponents were portraying it:

The Notice explains that “the proposed Rule prohibits any person from misrepresenting, expressly or by implication, any material fact regarding the entire agreement—not just facts related to a negative option feature.” It further explains that “[s]uch deceptive practices may involve misrepresentations related to costs, product efficacy, free trial claims, processing or shipping fees, billing information use, deadlines, consumer authorization, refunds, cancellation, or any other material representation.”

Consequently, marketers using negative option features in conjunction with the sale of a good or service could be liable for civil penalties or redress under this Rule for product efficacy claims or any other material representation even if the negative option terms are clearly described, informed consent is obtained, and cancellation is simple.

The federal government getting overly involved in small details of consumer transactions may seem eyeroll-worthy but not much of a big deal. But it’s a sign of a bigger problem, suggests Welch: “Governments that are big enough to police the language of magazine auto-renewals are guaranteed to intrude on personal consumption choices in ways that even corporationophobes find uncomfortable.”

Welch points out that the Biden FTC has also been guilty of “asking Twitter to rat out the names of all journalists involved in working on the #TwitterFiles series of investigations,” proposing a near-total ban on noncompete contracts in the workplace, “attempting (before being thwarted by a federal judge) to block Meta’s acquisition of a virtual reality company on the legally adventurous grounds that in doing so the Facebook owner would prevent itself from innovating in the virtual reality space,” and investigating Amazon for dubious reasons, among other overreach.

QUICK HITS

• A report released last Friday reveals that Social Security will be insolvent even sooner than was previously thought, “with automatic benefit cuts now projected to occur in 2033,” notes Reason‘s Eric Boehm.

• Former Arkansas Gov. Asa Hutchinson is running for the 2024 Republican presidential nomination.

• Reason‘s latest Peter Bagge comic deals with Maria Montessori and “the freedom to learn.”

• On the same day that House members interrogated TikTok’s CEO about whether the app and its parent company were a national security threat, the White House “embraced another popular app owned by the same Chinese company,” reports NBC News. “Last week the White House’s official Instagram account posted a flashy video of Biden and former President Barack Obama…created using the app CapCut, which, like TikTok, is owned by the Chinese company ByteDance.”

The post Study: Around the World, Internet Use Linked to Greater Well-Being appeared first on Reason.com.

from Latest https://ift.tt/I0hdlXy
via IFTTT

I thought I’d blog this week about the Florida libel law reform bills, the House version (which was favorably reported out of the Civil Justice Subcommittee to the Judiciary Committee) and the Senate version (which passed by an 8-3 vote in the Judiciary Committee and is now in the Rules Committee). There are many different parts to them, so I thought I’d take them one at a time. I also thought I’d start with the most ambitious changes.

Under current First Amendment law, articulated in New York Times v. Sullivan (1964) and follow-up cases, public officials or public figures suing over libels on matters of public concern must show “actual malice.” But “actual malice” isn’t actually malice; rather, it’s a legal term of art that, in this context, means publishing with the knowledge that the statement was false or likely false. (Publishing with knowledge that the statement is likely false is often labeled “reckless disregard” in this context.) This is a subjective test, focused on what the speaker actually believed, rather than on what a reasonable person would have believed.

The New York Times standard has recently been quite controversial. Justice White (generally viewed as one of the Court’s centrists) long led the charge against it; though he joined the New York Times decision at the outset, he “came to have increasing doubts about the soundness of the Court’s approach and about some of the assumptions underlying it.” He didn’t persuade a majority back in his day, but in recent years Justices Thomas and Gorsuch have echoed Justice White’s arguments. And while the issue has mostly broken down along conservative-liberal lines, that isn’t entirely so (as Justice White’s example also helps show): Early in her career then-Professor Kagan had expressed skepticism about the New York Times rule as well, at least in some measure; likewise, see, e.g., Prof. David McGowan’s A Bipartisan Case Against New York Times v. Sullivan.

In any event, some critics of the “actual malice” requirement think that it’s possible that there will be five votes on the Court to shift to, for instance, a negligence test, where a plaintiff could recover based on a jury finding that the defendant had acted unreasonably in investigating the facts, even if the defendant sincerely believed its statement was true. Section 6 of each of the Florida bills seems aimed at bringing the matter to the Court. In relevant part, it provides that a plaintiff (public official, public figure, or private figure) can prevail if

(a) The defamatory allegation is fabricated by the defendant, is the product of his or her imagination, or is based wholly on an unverified anonymous report;

(b) An allegation is so inherently implausible that only a reckless person would have put it into circulation; or

(c) There are obvious reasons to doubt the veracity of the defamatory allegation or the accuracy of an informant’s reports. There are obvious reasons to doubt the veracity of a report when:

1. There is sufficient contrary evidence that was known to or should have been known to the defendant after a reasonable investigation; or
2. The report is inherently improbable or implausible on its fact.

(The House version also adds to this list, “(d) The defendant willfully failed to validate, corroborate, or otherwise verify the defamatory allegation.”)

Some of these elements might be enough to show knowledge or recklessness even under existing law (e.g., if “the defamatory allegation is fabricated by the defendant”). But (c)(1) would likely call for some kind of a negligence standard, since it focuses on what a reasonable investigator should have known, not on what the defendant actually knew. (It might even call for strict liability, if courts read it as saying that, once “sufficient contrary evidence” is known, that’s enough for liability even if the author reasonably considers the evidence and contrary evidence and comes to a reasonable though mistaken conclusion. But I expect that courts would likely focus on “reasonable investigation” standard coupled with “obvious reasons to doubt,” and treat the standard as basically a negligence standard.)

The proposal thus clearly calls for Florida courts to apply a less speaker-protective standard than the one mandated by New York Times v. Sullivan. Here’s how it would likely play out procedurally, if the bills are enacted:

(1) I don’t think anyone could challenge the new rule before enforcement, since such pre-enforcement remedies generally aren’t available for challenging civil liability schemes.

(2) Instead, when a libel case is brought by a public figure or public official, the defendant will likely move to dismiss, arguing that there aren’t enough credible allegations of knowing or reckless falsehood to satisfy New York Times. Alternatively, after discovery, the defendant may move for summary judgment, arguing that there isn’t enough credible evidence of knowing or reckless falsehood.

(3) The court ought to at that point apply New York Times, notwithstanding the new Florida rule, because the new Florida rule is inconsistent with settled federal constitutional law; and if there isn’t enough to show knowing or reckless falsehood, it ought to throw out the lawsuit. At that point, the plaintiff will appeal (I oversimplify here slightly), and will presumably lose on appeal, for the same reason.

(4) After the appeal, the plaintiff can petition the Supreme Court for certiorari, asking the Court to overrule New York Times, thus validate the new Florida rule, and send the case down for proceedings in light of that rule. And this (hypothetical) overruling of New York Times will potentially affect the whole country, not just Florida, except in states that have, as a matter of their own state constitutional law or common law, adopted a New York Times-like rule.

This isn’t the only way that the Court can choose to reconsider New York Times; but it seems an especially likely way, assuming the Justices are indeed interested in revisiting that precedent (and assuming such a bill does indeed get enacted).

Let me close with excerpts from some of the classic arguments by the Justices in this area (I should note that I tentatively support keeping the New York Times rule, as likely the lesser of the evils, but I think there are important arguments on both sides).

[1.] First, Justice Brennan in New York Times, arguing for the “actual malice” test:

“Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors…. The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information…. Errors of fact, particularly in regard to a man’s mental states and processes, are inevitable…. Whatever is added to the field of libel is taken from the field of free debate.”

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error…. [Government officials] are to be treated as “men of fortitude, able to thrive in a hardy climate” …. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations….

The state rule of law [which generally imposed strict liability for defamation] is not saved by its allowance of the defense of truth…. 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 … “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. {Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about “the clearer perception and livelier impression of truth, produced by its collision with error.” Mill, On Liberty.} …

Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” The rule thus dampens the vigor and limits the variety of public debate….

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not….

[2.] Some more from Justice Brennan in Garrison v. Lousiana (1964), explaining why he wouldn’t go all the way to abolishing libel claims even as to knowing or reckless falsehoods (as Justices Black, Douglas, and Goldberg had argued, at least for speech on matters of public concern):

Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration….

[T]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality….” Chaplinsky v. New Hampshire….

[3.] Then still more from Justice Brennan’s dissent in Gertz v. Robert Welch, Inc. (1974), arguing against a negligence standard (which the Gertz majority adopted when private figures sought proven compensatory damages):

Adoption … of a reasonable-care standard … will likewise lead to self-censorship since publishers will be required carefully to weigh a myriad of uncertain factors before publication. The reasonable-care standard is “elusive”; it saddles the press with “the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.” Under a reasonable-care regime, publishers and broadcasters will have to make pre-publication judgments about juror assessment of such diverse considerations as the size, operating procedures, and financial condition of the newsgathering system, as well as the relative costs and benefits of instituting less frequent and more costly reporting at a higher level of accuracy….

And, most hazardous, the flexibility which inheres in the reasonable-care standard will create the danger that a jury will convert it into “an instrument for the suppression of those ‘vehement, caustic, and sometimes unpleasantly sharp attacks,’ … which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.”

[4.] And now Justice White in his concurrence in the judgment in Dun & Bradstreet v. Greenmoss Builders (1985), arguing against the “actual malice” test:

I have … become convinced that the Court struck an improvident balance in the New York Times case between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation…. Criticism and assessment of the performance of public officials and of government in general … are not at all served by circulating false statements of fact about public officials. On the contrary, erroneous information frustrates these values. They are even more disserved when the statements falsely impugn the honesty of those men and women and hence lessen the confidence in government….

Yet in New York Times cases, … [t]he lie will [often] stand, and the public continue to be misinformed about public matters … because the putative plaintiff’s burden is so exceedingly difficult to satisfy and can be discharged only by expensive litigation. Even if the plaintiff sues, he frequently loses on summary judgment [or on appeal] … because of insufficient proof of malice…. [And when the plaintiff gets before a jury], the jury will likely return a general verdict [because of insufficient proof of actual malice] and there will be no judgment that the publication was false ….

The public is left to conclude that the challenged statement was true after all. Their only chance of being accurately informed is measured by the public official’s ability himself to counter the lie, unaided by the courts. That is a decidedly weak reed to depend on for the vindication of First Amendment interests—”it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not ‘hot’ news, and rarely receive the prominence of the original story.”

{It might be suggested that courts, as organs of the government, cannot be trusted to discern what the truth is. But the logical consequence of that view is that the First Amendment forbids all libel and slander suits, for in each such suit, there will be no recovery unless the court finds the publication at issue to be factually false.

Of course, no forum is perfect, but that is not a justification for leaving whole classes of defamed individuals without redress or a realistic opportunity to clear their names. We entrust to juries and the courts the responsibility of decisions affecting the life and liberty of persons. It is perverse indeed to say that these bodies are incompetent to inquire into the truth of a statement of fact in a defamation case.}

Also, by leaving the lie uncorrected, the New York Times rule plainly leaves the public official without a remedy for the damage to his reputation. Yet the Court has observed that the individual’s right to the protection of his own good name is a basic consideration of our constitutional system, reflecting “our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.” The upshot is that the public official must suffer the injury, often cannot get a judgment identifying the lie for what it is, and has very little, if any, chance of countering that lie in the public press….

[I]f protecting the press from intimidating damages liability that might lead to excessive timidity was the driving force behind New York Times[,] … the Court engaged in severe overkill…. [I]nstead of escalating the plaintiff’s burden of proof to an almost impossible level, we could have achieved our stated goal by limiting the recoverable damages to a level that would not unduly threaten the press. Punitive damages might have been scrutinized … or perhaps even entirely forbidden. Presumed damages to reputation might have been prohibited, or limited, as in Gertz v. Robert Welch, Inc….

It could be suggested that even without the threat of large presumed and punitive damages awards, press defendants’ communication will be unduly chilled by having to pay for the actual damages caused to those they defame. But other commercial enterprises in this country not in the business of disseminating information must pay for the damage they cause as a cost of doing business, and it is difficult to argue that the United States did not have a free and vigorous press before the rule in New York Times was announced….

The post Florida Libel Law Reform Bills, Post 1: The Challenge to <i>New York Times v. Sullivan</i> appeared first on Reason.com.

from Latest https://ift.tt/RdEiunr
via IFTTT