Under current libel law there are two classes of people, public and non-public. If someone publishes¹ something about you which is not true and you are a non-public person you can sue for libel and win if you can prove that what was said about you was not true. If you are a public person you can still sue for libel but you have a distinctly higher standard to meet. You must not only prove that what was published was not true but also prove actual malice on the part of the publisher, or, to put it another way, you must prove that the publisher knew it was not true but published the story anyway².
The problem is that people have figured out how to libel a public person and remain impervious to a libel suit. Here’s how it works. Say I am a radio personality, such as Rush Limbaugh, and I want to malign a public person, such as Hillary Clinton. I can’t simply make something up without potentially leaving myself open to a libel suit so what I do is take something sent to me by a demented listener and publish that without making any attempt to verify the information. In that way I can honestly say that I didn’t know that the information was false which makes me virtually invulnerable to a libel suit. This has led to a situation where all manner of obviously untrue things are published about people who are public persons with little fear of being sued.³
My proposed solution is allow a public person to sue using the same criteria as a non-public person, but not for damages. They could only ask the court to force the person/organization to issue a retraction of the libelous statement and an apology. The key thing here is that the retraction and apology must be as prominent as the original statement. For example, if a newspaper prints a libelous statement on the front page of the Sunday edition then the retraction and apology must take up the same amount of space on the front page of the Sunday edition. If a radio show host goes on for two minutes at 8 PM on a weeknight then the retraction and apology must last for two minutes and be broadcast in the same time slot. If the original statement is repeated then the retraction and apology must be repeated the same number of times.
What effect would such a reform have? I obviously can’t be certain, but I can’t imagine that Rush Limbaugh, if forced to make a genuine retraction and apology, would not be at least a little more cautious about what he said on the air. In any case I think we need to do something to tone down some of the ridiculous things being broadcast and printed.
- I am using the word publish to include any method of conveying information to include print media, radio, TV, the internet, and speech.
- I am not a lawyer so if my terminology or my description of the current libel system is a little off take my non-legal background into consideration. The details of the current libel system are not as important as the fact that there are two different criteria for a public and non-public person to prove libel and recover damages.
- You can’t get much goofier than the accusation that Hillary Clinton and John Podesta were operating a child pedophile ring out of the basement of a suburban Maryland pizzeria. If nothing else, the pizzeria in question didn’t even have a basement. It sits on a concrete slab. Also, in this case, the totally false accusation had real world consequences since a man with a gun showed up at the pizzeria in question and started firing shots into the ceiling demanding to be shown the room where the child pedophile ring supposedly existed.