The defamation saga

THE frustration that champions of free speech and press freedom face when their effort to decriminalise defamation and bring it under the ambit of civil law runs into the wall of the Machiavellian state (and that in spite of a recent helpful nudge from the judiciary) may at least be partially offset when the struggle is put in its historical context. It is a protracted struggle that dates back to 17th century England when the rulers were clamping down on the press. Of course, the press then was not synonymous with journalism as we know it today but understood in the more rudimentary sense of the printing press. What the press printed was considered inferior to what was handwritten. The printed word was infra dig and plebeian, and all the more dangerous for it. There was apprehension in the aristocracy about what the press might print, or spew into an emerging public sphere, and a series of measures was taken to ensure that the press’ activity was direly restricted and closely monitored.

The Pulitzer awardee Paul Starr chronicles, in his work Creation of the Media: Political Origins of Modern Communication , how printing was given a big impetus by the Protestant Reformation in Germany from 1517, when the mass printing and rereading of the Bible went viral. Later, on the rebound, in the Counter Reformation in the 1570s, the Catholics also took to the press in a big way for the same religious purpose. Both the Tudors and the Stuarts cracked down on the press. Henry VIII introduced a system of licensing for books printed in England. After an initial flush, in the early 17th century, of a few printed news sheets, which anticipated in its earliest form the newspaper as we know it today, Charles I proscribed them in 1632 and then introduced a system of selective licensing from 1637. The English Revolution (1640-48) provided the hard-pressed printing trade a big but brief break. It was at this time that John Milton published his landmark tract against censorship, Areopagitica (1644), which formulated what came to be called the “self-righting principle” summed up in the rhetorical question: “Whoever knew truth put to the worse in a free and open encounter?”

The principle was to become an article of faith with the leaders of the American Revolution, such as Thomas Jefferson and James Madison, and was given fresh currency about two and three quarter centuries later when, in 1919, U.S. Supreme Court Judge Oliver Wendell Holmes in his dissenting judgment in Abrams vs United States drew upon it to enunciate the concept of the “free marketplace of ideas”. He observed inter alia in that judgment, “…that when men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade of ideas… that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out….”

John Milton’s, and his Areopagitica ’s, faith that truth would naturally prevail ran headlong into another convoluted construct and politically convenient reading of truth. After a few euphoric years of free expression during the English Revolution, it was back to licensing and censorship under the Commonwealth of 1649 and even grimmer restraints on the press, and public discourse, under Cromwell’s Protectorate from 1650. Licensing continued when the Stuarts were restored to power in 1660 and, well after their overthrow in the Glorious Revolution of 1688, until its term expired in 1695 and was not renewed. Paul Starr quotes Sir Roger L’Estrange, who was made the Licenser in 1663, to indicate the mindset prevalent at the time: “...a Public Mercury should never have My vote; because I think it makes the Multitudes too Familiar with the Actions and Counsels of their Superiours; too Pragmaticall and Censorious, and gives them, not only an Itch, but a kind of Colourable Right, and Licence, to be Meddling with the Government” ( sic ).

With licensing lapsing, the emphasis, and onus, shifted from measures of pre-emption and prevention before publication to facing the consequences post facto , taking the rap for the damage done by, and after, publication. The threat of being charged with libel hung like a sword of Damocles over the printer-publisher’s head. Libel was, moreover, compounded by the insinuation that where it was directed against any authority of the state, it became ipso facto an act against the state itself and was therefore routinely, if disingenuously, denoted by the compound word “seditious libel”. As Chief Justice John Holt rationalised it in 1704: “If men should not be called to account for possessing the people with an ill opinion of the government, no government can subsist; for it is very necessary for every government that the people should have a good opinion of it.” In this scheme of logic, it did not matter that what was said about someone in authority or a public functionary may be true—the more true it was, the greater the aspersion cast on the state, and hence the greater the damage done. Hence, the blatantly counter-intuitive idea that became a glib legal maxim: The greater the truth, the greater the libel. The jury’s remit, in a case of libel, was restricted to deciding whether the defendant had expressed what he was accused of. It was left to the judge to rule whether it was libellous or not.

Thus, while there was, on the one hand, the Areopagitica espousal of truth as a value that prevails in a “self-righting” manner, there was, on the other, a devaluation and denial of truth, an inverse relationship with it, in a case of libel. It took close to a century after Areopagitica for truth, so stood on its head in libel cases, to be put back on its feet. This happened in the American colonies, in New York, in 1735, in the verdict of the landmark Zenger case. John Peter Zenger had in his The New-York Weekly Journal charged the British royal Governor of New York, William Cosby, with malfeasance and misappropriation of funds. Cosby sued Zenger for seditious libel. The case became a cause celebre for the colonist leaders, who came to Zenger’s aid and appointed the astute Philadelphia lawyer Andrew Hamilton to defend him.

In the course of his arguments, Hamilton drew on the writings of Cato, the collective pen name used by John Trenchard and Thomas Gordon, two newspapermen in London who even from 1720 had begun to campaign for truth to be allowed as defence in cases of libel. The writings became very influential in the American colonies, perhaps more than in England itself. Cato was in fact the name of a Roman statesman and historian who lived in the first century B.C. and lived as a farmer when he was not fighting in the army or engaged in the work of the one or the other high office entrusted to him. It is a remarkable coincidence that when, recently, Edward Snowden decided to leak files of the National Security Agency, he initially contacted Glen Greenwald using the cover name Cincinnatus, referring to Lucius Quinctius Cincinnatus (519-430 B.C.), who again was a Roman patrician who embodied civic virtues. He, too, left his farming briefly to lead Rome against an invasion, and once it was repulsed, he returned, within a couple of weeks, to his private and modest life of farming.

Starting out with having to contest what looked like an effort to pack the jury and, going forward, having to resist the rather inimical Chief Justice hearing the case who would not allow the truth of the so-called libel to be given in evidence, Hamilton’s task was far from easy. He had to appeal to the common sense of the jury against the accepted legal norm of what constituted libel. He prised open a line of argument by zeroing in on the wording of the prosecution’s charge that Zenger published “a certain false, malicious, seditious, and scandalous libel” and picked on the word “false” to argue that since it is the falsity of what was published that purportedly made it libellous, he would accept it was so provided the prosecution could prove that what was published was indeed false. In the process, he wanted to know, “…suppose that the information had been for printing and publishing a certain true libel, would that be the same thing?”

The Chief Justice intervened to point out that “a libel is not to be justified, for it is nevertheless a libel that it is true”. To which Hamilton responded: “How shall it be known whether the words are libellous, that is, true or false, but by admitting us to prove them true, since Mr Attorney will not undertake to prove them false? Besides, is it not against common sense that a man should be punished in the same degree for a true libel, if any such thing could be, as for a false one? I know it is said that truth makes a libel the more provoking, and therefore the offense is greater, and consequently the judgment should be heavier. Well, suppose it were so, and let us agree for once that truth is a greater sin than falsehood. Yet, as the offences are not equal, and as the punishment is arbitrary, that is according as the judges in their discretion shall direct to be inflicted, is it not absolutely necessary that they should show whether the libel is true or false, that they may by that means be able to proportion that punishment?”

The Chief Justice though would not budge, and Hamilton appealed to the jury above his head, saying: “…as we are denied the liberty of giving evidence to prove the truth of what we have published, I will beg leave to lay it down as a standing rule is such cases that the suppressing of evidence ought always to be taken for the strongest evidence; and I hope it will have that weight with you”. The Chief Justice reiterated that the jury should restrict itself to determining whether Zenger published the matter as alleged and leave it to him decide whether it was libellous or not; in other words, they could only rule on the fact and not on the law.

Hamilton then changed tack and reasoned that what was libellous would after all depend on how what is heard is understood by a person since even things said in mockery could be deemed libellous; to which the Chief Justice responded in agreement that “all words are libellous or not as they are understood”. It then followed, Hamilton argued, “that these 12 men [comprising the jury] must understand the words in the information to be scandalous—that is to say, false… and when they understand the words to be so, they will say that we are guilty of publishing a false libel, and not otherwise”.

The Chief Justice stuck to the position that the jury could only decide on the fact and not the law. Hamilton countered that it could decide on both. He said he conceded that “if the faults, mistakes, nay even the vices of such a person be private and personal, and do not affect the peace of the public, or the liberty or property of our neighbour, it is unmanly and unmannerly to expose them either by word or writing. But when the ruler of a people brings his personal failings, but much more his vices, into his administration, and the people find themselves affected by them either in their liberties or properties, that will alter the case mightily; and all the things that are said in favour of rulers and of dignitaries, and upon the side of power, will not be able to stop people’s mouths when they feel themselves oppressed.”

When the arguments closed, it did not take the jury long, overruling the brief given to it by the Chief Justice, to decide on both the fact and the law, and rule that Zenger was not guilty of libel inasmuch as what he had published was not false. In one stroke, truth had become a valid defence against libel. U.S. courts were however slow in reconciling to and acting on this verdict as a legal precedent.