I wish my media colleagues would stop parroting uninformed statements from Jamaican officials about suing American media houses, without some context at the very least.
Remember former Prime Minister Bruce Golding claiming that he was going to sue US
network ABC for a report about him during the height of the Dudus issue? Now Dr. Herb Elliot is considering legal action against the Wall Street Journal for questioning his credentials, according to the Gleaner.
Mr. Golding and Dr. Elliot are public officials. There is a special defence in the US against a claim of defamation for statements carried by the media about public officials.
The US Supreme Court in a seminal case called New York Times Co. v. Sullivan, 376 U.S. 254 (1964) held that “a State cannot…award damages to a public official for defamatory falsehood relating to his official conduct unless he proves “actual malice”–that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”
Facts of the Case
The case involved a newspaper advertisement carried by the New York Times in 1960 about the non-violent civil rights protests. The ad, placed by civil rights activists stated, in part:
“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 re-register, 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. . . .”
An elected official who supervised the police department claimed that the ad suggested that he was responsible for the events in question, and filed suit.
There were factual errors in the ad, for example, the name of the song and the reason for the students’ expulsion. In addition, the police were at the scene, but did not “ring” the campus and Dr. King had been arrested four times, not seven.
Nevertheless, the Supreme Court, in a powerful judgment, declared the paramount importance of allowing criticism of public officials.
Mr. Justice Brennan in delivering the opinion of the Court said:
“(W)e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
The Court went on to state that requiring anyone publishing criticism of a public official to guarantee the truth of every fact being asserted would inhibit such criticism and lead to critical statements being withheld, even if they were true.
“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. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. ..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. “
The Supreme Court therefore held that public officials cannot be sued for damages for defamation in relation to statements about his official conduct unless there is proof of actual malice, that is that the statement was published even though the publisher knew it was false or recklessly disregarded the possibility of it being false. The issue of reckless disregard would relate to the levels of investigations carried out by a media house, for example.
“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.”
In a nutshell, therefore, media houses publishing stories in the United States critical of government officials in Jamaica are virtually immune from defamation claims, unless, as stated, actual malice can be proven, which is usually exceptionally difficult.
The Sullivan defence is well known to local media houses, after all, they have lobbied the Jamaican government for years to have it enshrined into our own legislation – lobbying that has been steadily and steadfastly rejected.
So when our local officials make statements about suing US media houses, for goodness sakes, let us at least educate the public (and maybe the officials themselves) about the unlikeness of any such claim ever being filed, and why.