 The way we're going to work this panel is first invite Mr. Henthoff to come up and speak for 10 minutes, presenting his perspective pro and con libel laws. And then we're going to ask Mr. Kelly to do the same. We're going to ask them each to come back and give further comments and reactions to each other. This is not a debate. These two people do not have diametrically opposite viewpoints so far as I understand. It's a very complex issue and we're ending with one of the most complex and emotional and controversial issues that we've discussed today. It's an issue that does divide members of the Free Press Association. Some people agree with the opinion expressed in one of the columns, libel laws must go in our spring 1986 issue of Free Press Network. Many other Free Press Association members believe that libel laws are necessary in order to protect people's reputation. And we're going to hear both points of view possibly expressed tonight, beginning with Mr. Henthoff. I have a number of losing causes, all but one of which I won't admit to be a lost cause, but the one that is a lost cause, as far as I can tell, is that libel laws, all libel laws, private, public, whatever, are a violation of the First Amendment and should be abolished. Well, it ain't going to happen. In that respect, I'm a child of Hugo Black, the one Supreme Court Justice who did have that, so far as libel was concerned, that absolutist view. He brought Douglas along largely in that direction, Brennan and Goldberg to a lesser extent, but he never got a majority of the court. No one has ever gotten even close to a majority of the court on this, and this court certainly doesn't believe that, especially now with the Scalia in. Black, however, Black had a way of selectively reading history that was marvelously eloquent, but didn't quite hold up when he looked at the history. He maintained that the framers wanted no law of libel or any abridgment of speech or press at all. But if you read the history, and Professor Ligio indicated that one of the more compelling priorities in pre-revolutionary America was not freedom of expression, unless you owned one. And that certainly was true around the revolutionary period. One of the books that are nominees for this evening, The Emergence of a Free Press by Leonard Liebing, has a horrifying chapter on what the patriots were doing in the time of the Revolution to suppress the speech, the actual plates, the printing presses, and when possible the knees and shoulders and other extensions of the Tories. Nonetheless, I think Black was correct, because I do believe that the Attorney General, on the contrary, this is a living constitution, and the framers are not always the last word. However, similarly, for example, I agree with him, and I agree with Brannon who finally came around to this after a torturous period, that obscenity, any prosecutions for obscenity, our violation of the First Amendment. That position is not going to take hold, certainly not so long as this administration is in power. So what I've been reduced to is trying to figure out ways to lessen the impact of libel laws. One of the ways in which I would welcome as much support and help from members of the press as is possible, I think it's important for there to be a much greater awareness, in fact there is practically no awareness now at all, about the fact that the libel law, libel laws do not primarily affect. I mean, most people when they think of libel, they think of the behemoths, CBS, Timing, the large, or in Pennsylvania, the Philadelphia Enquirer, which must have at least 13 suits going against it any week, the large conglomerates, the mass media. But in fact, if you look at, and as a professor at the University of Denver Law School, George Pring, who has made a study of this for the past couple of years, if you look at the caseload of libel, you'll find hundreds of cases in which private citizens are the object of attacks through libel action of real estate developers, of public officials, of large concerns that pollute the environment, particularly the environment where these people live, and it costs them an enormous amount of money to defend themselves. Many times they'll win, but after that they become rather silent citizens. Because if you're not used to the, I mean, a media lawyer, and for that matter an editor like Gene Roberts, whom I respect a lot, you get used to the whole tug of libel law and libel wars, besides you're not paying for it yourself. But a good many citizens, once they're hit this way, they do no longer exercise their right of expression, of criticism. I'll give you an example of a case that's been going on now for two and a half years in the courts of New York, Suffolk County. Real estate developers sues nine civic associations and 16 individuals for libel. What did they do? They ran an ad on a local newspaper objecting to his plans for a parcel of land in their town. They published a statement of their concerns in the same issue of the paper. They circulated a leaflet and a notice which simply told the residents of the community to come to the town meeting. The town board finally refused his plan. They are being sued for the usual six, seven figures, ten to seven figures, ten million dollars. They found a very good law firm here in town that was willing to do it at two-thirds of their usual fee. They haven't even gotten to the point of pre-trial. I mean, to trial, they've had some pre-trial depositions, but very few. It's all been motions, motions to dismiss, motions for summary judgment. It's cost them now over ten, fifteen thousand dollars. That's the kind of effect of libel that is not generally known. Too quickly to others. My favorite device, though I admit there are some problems with it, there's a man named Ned Chilton who's the publisher of the Charleston West Virginia Gazette and Daily. The most powerful, gave Daily in the state. It's a statewide newspaper. And he got tired of these libel suits, which, as he said, were totally frivolous, baseless. Not all of them, but some of them. Now, when he sees such a suit coming along, he instructs his attorney to sue the other attorney. Not the person bringing the suit, but the other attorney. I mean, Ned's principle is, you don't expect lay people to know law, but goddamn it, the attorney should know law. And it's been quite successful. The number of suits brought against the Charleston Gazette has diminished considerably. There have been at least two suits that were simply withdrawn instantly, as soon as the condo suit came along. Chilton has spoken around the country to publish his groups, and I asked him yesterday whether many people are following along, and he said no, because it's somehow not done. Well, the third thing has nothing to do with the First Amendment theory or whatever. It has to do with why so many people do sue for libel. And I think it's important to bring in, because that can diminish libel suits. There's a very important study that was conducted a year and a half ago by the University of Iowa Law School in conjunction with the School of Journalism. And it was a quite extensive survey of people who brought cases of libel within the state of Iowa over a considerable period of time. They found, first of all, the contrary to some of the stereotypes that we have in the business, the people who do sue were not necessarily litigious by nature, by temperament. Most of them, whether they were public officials or public figures or private citizens, first called the newspaper. They were angry, they wanted to talk to somebody, because they felt correctly that they had a right to complain. And the response from the newspapers, with very few exceptions, was cold, arrogant, and generally very unfriendly. That's when they called their lawyers. This kind of thing, I mean, there's one paper I know where the rule is from the editor in chief. I'm sorry, from the lawyer. The lawyer is now taking over a lot of the prerogatives of editors in chief. The rule is from the lawyer that nobody whose story has been criticized by somebody who's very offended by it is going to answer that criticism. It has to go to a cooler head. Meanwhile, in terms of the actual effect of libel, I don't have to go into this, I think, in any great detail, Gil Cranberg, who is a professor of journalism at the University of Iowa and was for many years the editor of the editorial page of the Des Moines Register, did a survey a couple of years ago, and all over the country, and he found what I found, not as methodologically, methodologically as he did, that more and more editors of small papers, 25,000 circulation, let's say, now think very hard when they get a piece that they know is going to be sued. I mean, they know their town. They know the people in the town. The piece may be entirely accurate, totally defensible in the court of law, but the editor, as one editor said to Gil Cranberg, you know, it's going to cost me $25,000 in legal fees to win this case. I can do a lot of things with $25,000 in this paper. I don't think I want to put it into a libel suit. That story gets killed. And this is happening more and more in book publishing. Not too long ago, there was an anthology by the Red Stockings, a group of radical feminists. Random House was going to put it out. Random House is very strong in defending its authors, most of the time, against libel suits. One of the articles was about Gloria Steinem and included the allegations. I better watch what I'm saying here. That she was winningly or not involved in the CIA with certain CIA operations overseas in the early 50s. Her lawyer, who was a board member of the American Civil Liberties Union and has been for many years, wrote Random House a very tough letter. And the book was killed. And I saw the publisher at a meeting of the, what is it called? Freedom? It's a free expression conference kind of thing. And he's the president of it, Robert Bernstein. And I said, how come you killed the book? And he said, look, we're in the publishing business, not the litigating business. We can't do this for all of our books. So that one had to go. And I'll end with my own continuing education in libel law. I filed a piece two weeks ago for the Washington Post. It had to do with a friendship center for elderly people in a small town in Wyoming, which is run on government funds, but is privately incorporated, which leads to a certain exposure if you're going to be sued for libel. And the story was about these two women, 175 and 180, who had been threatened with being kicked out of the place, which would be being sentenced to emptiness out there because that's where they had all their friends and bingo and dancing and all that stuff. Very important center. They had merely criticized some of the administration's operations and the ACLU out there had taken the case. And I wrote a column based on the court papers provided me by the ACLU lawyer. The other side had not yet filed papers yet. I called the other side. They wouldn't talk to me. And I decided I wanted more than just the papers. So I called some of the elderly women, one of the plaintiffs and some of the women in the center. I spent three hours with a Washington Post libel lawyer to get that column cleared. And she pointed out, I mean, very pleasant person, she pointed out that I had made the mistake, she didn't call it a mistake, it was the implication of doing my own reporting on top of the court papers. If I had kept to the court papers, then she would have cleared it instantly. But once I go on to my own reporting and quote what these people say and what those people say, that's another story. I don't think James Madison had that in mind. I think one thing has become apparent from what Mr. Hintoff said and that is that the reason why libel has become a major First Amendment issue today, whatever one's response to it or whatever one's position in regard to it is, is because of the great proliferation in recent years of libel suits, which in many cases has killed many investigative reports and in some cases, such as a small Illinois newspaper several years ago threatened its very existence. But there are some wider philosophical issues involved in whether people have a right not to be libel and David Kelly has specifically been doing a lot of thinking about that and now I think we're going to be hearing quite a different perspective on this controversial issue, Mr. Kelly. You heard before that I was both a philosopher and a journalist. I lead kind of a double life when things get hot in philosophy if you can picture that situation. I head south across the border and I write an edit for Barron's and today I'm going to be talking about an issue of obviously great importance to journalists, namely the libel laws. I'm going to be defending them and if things get hot for me here I'm going to head back to philosophy into the thickets. If they get really hot I will yell fire and exercise my First Amendment rights. Let me make it clear that I would never ever defend any kind of seditious libel law of the kind represented by the Alien and Sedition Act type going back to the Star Chamber of Infamous Memory. Libel I regard as a completely an issue for the civil law. It's a question of adjudicating spirits of freedom and rights between private citizens so that even when we deal with a government official suing for libel, I think you should be required to sue because a private individual had not enlisted the power of government behind him. With that preface, let me say that as strongly as I believe in the First Amendment, it seems to me we cannot answer this question simply by appeal to it because the First Amendment right to freedom of speech and press is certainly absolute within its sphere but in this as in any other area of private law where we have to draw border lines between people's rights, we have to draw the border before we can get know what the right includes and in this particular case I believe the First Amendment right to speak has a border with something I would call a right to a reputation. I believe that people in the course of their lives have something that we might describe as a more or less public record of their more or less public actions and that they have a right because that is an important asset for virtually all their dealings with the world, not to have that record misrepresented in ways that they would then have to undertake to correct usually at tremendous expense. I think of reputation in that sense as a kind of asset. It consists not of, I hope to fuse one of the strongman arguments in this field, reputation does not consist of a set of beliefs in other people's minds. Everyone certainly is free to believe whatever they want about any other individual. But the libel law draws a distinction between facts, factual statements, and evaluative and interpretive statements. I would never say that someone libeled me by saying I was a lousy writer. That's your opinion. Everyone can make up their own mind on the basis of the facts that are available, but it is a libel to say that I plagiarized my last article. And that destroys one of the few assets that I have as a writer and no many of you are writers too, which is our reputation. That's about all I have to show for 10 years in the business. So I believe that there is such a thing as a right to a reputation. I don't think the courts have drawn the appropriate distinction between factual and evaluative statements in the right place all the time, and we want to get into cases, maybe we could look at some of those. But I'm going to take that as one of my assumptions. Now, the law, as it currently stands, purports to defend this right to reputation. It defines an offense of libel. But in my view, the law is in a state of chaos. It's a disaster largely because the Supreme Court has drawn a set of distinctions between private figures and public figures, between statements made in the context of public issues and statements made in the context of private issues, and to some extent between media defendants and non-media defendants. Just to give you a quick summary, this is taken from Justice O'Connor's opinion in, I believe it was the case last spring of the Philadelphia newspapers versus HEPS. If a public figure defined as someone either who is a government official or who has achieved some position of prominence and influence in society, if a public figure is defamed, which is a negative factual statement made about them, in the context of a public issue, then that person has to establish that the statement was made with actual malice, in the term of legal hard-meaning knowledge of its falsity or reckless disregard of its falsity. If a private figure has been defamed and wants to sue, but it's in the context of a public issue, another court decision says that the plaintiff must at least establish that the reporter newspaper was negligent to negligent. You have to prove negligence to recover for compensatory damages, but you have to prove a higher standard, something like malice, to get punitive damages. And finally, if a private figure is defamed in the context of some private issue, then negligence is sufficient to get both compensatory and punitive damages. That was my reading of the Dunn and Bradstreet case, where Dunn and Bradstreet mistakenly reported that, I believe, Green Moss builders was bankrupt. They reported this to five of their clients who get their special reports from Dunn and Bradstreet, Green Moss lost in business and sued. And because this was commercial speech, which for the court means speech not aimed at improving the public, but at making money and is not considered a privileged type of speech, the lower standard of fall was all that Green Moss had to prove to get both compensatory and punitive damages against Dunn and Bradstreet. Now, I want to start by saying my main objection to this is the distinctions that the court has drawn. I think they are all invalid. They should all be thrown out. My political philosophy says that the rationale for free speech as for any right is an individualist one. Speech serves any number of purposes. Political discussion being one. That's the one that the court prizes most highly. But that's only one. In my view, in a proper society, it wouldn't be the major one because there wouldn't be that much to talk about as the government were doing its job, limited to its proper job. But at any rate, whatever the purpose is that give us the right. An individualist philosophy says once you have the right, you don't have to defend your exercise of it by the purpose for which you're exercising it. You don't have their speech-to-speech and you have a right to it no matter whether you're trying to make money or whether you're discussing politics or whatever. The only justification, and in fact this is the justification that the court has used, is for drawing such distinctions is a collectivist one. It says the basis for free speech, and this is quite explicit in Justice Brennan's argument in the famous New York Times versus Sullivan case. The basis for the First Amendment freedom is that certain kinds of discussions serve the society's interest in having an open flow of information about political and other contemporary affairs. So it's not that you have a right because you have a right. The concept of right is almost inapplicable here. It's that the court will recognize this freedom because it serves society. Obviously the distinction between commercial and non-commercial speech is based on the same collectivist standard. I think it is wrong in philosophical principle to try to employ a collectivist defense of individual rights and freedoms, and it is very dangerous in practice. If you want to see what it looks like in practice, a pure case, look at broadcasting. Print media are protected partly by, because they were around in the 18th century when individualist traditions were still operative. Broadcasting had the misfortune to emerge in the 20s when the political philosophy had shifted over to a much more collectivist outlook. And what you have is things like the fairness doctrine, the equal time rule, all kinds of content restrictions implicit in the licensing schemes being defended not just because of the public owns the airwaves, but also because this is to protect the First Amendment. So that's one objection to these distinctions. The second one is the kind of progressivist egalitarianism involved in them. I mean, what the libel law says is that if you are a little guy, you get your right reputation protected. But if you have earned some position and have some influence and stature and some sizable reputation to protect, you don't get it protected. So, I mean, it's like saying that rich people should not be protected against theft, at least not to the same degree as poor people, because after all, rich people can go out and replace the products and the stolen goods. And again, I take complete issue with that. Okay, I've been asked to keep these remarks on the brief side, so let me turn to what I would do. What I would do is quite simple. I would use a negligence standard across the board for private and public figures, government officials acting as private in their private capacity, and as well as private citizens. Negligence is the standard that I think auto is appropriate throughout the entire realm of torts, the civil law dealing with injuries and violations to rights by one individual by another. I think there certainly should not be... I mean, the present state of things, if you look at the entire field of liability law, seems to be incoherent. In the early 60s, the principle of strict liability that is that you were liable for any damages, regardless of fault, was imposed on product liability. So, product manufacturers are now subject to recovery of damages, regardless of whether they had any inkling. In one case, the court held that they could be held responsible for damages that were scientifically unknowable at the time the product was produced. On the other hand, liable has gone in the opposite direction. So that now, if you're a public figure, the standard of fault you have to prove is that the opposite extreme from strict liability, you have to show that it was beyond negligence, that it was actual reckless disregard of the facts. What this reflects is an element of liberalism, a distinction between the market for goods, which is regarded as lowly, and we can change the manufacturers versus the market for ideas, which is holy and should be protected by a different standard. So that's the first change I would make. I would try to institute a system of standard of negligence for all liable suits. But secondly, I would cut back, if not eliminate, all punitive damages. I think punitive damages are an anomaly in civil law. They're wreaking havoc across the entire realm. They're chasing vaccines out of the market, gas anesthesiologists across a whole range of products. They're having a disastrous effect. And I think the most chilling effect in liable comes from the specter of these punitive damages. If an act is worth punishing, by and large it seems to me it ought to be handled by the criminal law where the act is defined and the punishment is specified clearly. I can't go all the way that way. I suppose if there ought to be some realm for punitive damages for truly outrageous behavior, and so maybe a malice standard or something even higher might be kept as a basis for punitive damages in liable. Okay, I'm sure there will be questions about all of this and doubtless objections, but let me end there. I doubt that things will get too hot tonight for either of these gentlemen, both of whom have expressed differing, but quite reasonable points of view, quite intriguing differences, I might add. Speaking of our right to consider Mr. Kelly, a lousy writer, a right with which I totally agree, I would like to point out that the right, I always make a difference between the right to do something and whether what you do is right. Many of the members of the Free Press Association in this room participated in the screening process and in the voting for the Menken Award, so I thought I'd mention one other very nice thing about both of these gentlemen. Both of them are held in very high esteem as far as their reputations as good writers because both of them happen to be among this year's Menken Award finalists, Mr. Kelly in the best editorial category and Mr. Henthoff in the best feature category, and we also have some other finalists who are here and who many more will be arriving this evening for the banquet and our cocktail party later honors them and I'm very honored to have both of them here in no more flowery language. Mr. Henthoff, what do you want to say about all this? I was going to say that I agreed with Mr. Kelly on two things, but now it's on one and a half. I was about to agree with him on punitive damages until it began to qualify. I think there should be no punitive damages. Of course, I also think there should be no punitive damages about the story. I do agree with him entirely about broadcasting. I think the Fairness Doctrine and all those other restrictions are wholly unconstitutional. The point the ACLU has yet to realize. The notion that a right to reputation justifies libel suits and that that leads to the rather clear-cut situation in which, after all, it's factual statements, not opinion, that are the basis for whatever judgments, if any, that result displays a quite romantic notion of what actually goes on in these courtrooms. The hardest single thing a jury has to do, and this is shown again and again and again, is to decide which is opinion, which is fact, and how you interlace the two. Then you get judges helping them along like the judge in the D.C. Circuit Court of Appeals in a Washington Post case who said that because the Washington Post has a reputation as a muck-raking paper, use that term, there is a presumption in favor of the fact that it committed actual malice in this case. It makes it very easy in that case for the jury. The idea of having a standard of negligence, simple, pure negligence in libel suits against the press in particular would mean that, oh, I'd say 85 to 90 percent of the newspapers in this country in magazines would read the way our Sunday visitor used to read. Our Sunday visitor is now a rather controversial paper. It would not be much longer. Because negligence, I mean, I've been in this business a long time since, well, I guess about 40 years now. And there are very good reporters and very good papers who, and I'm not going to say whether they're culpable or not, they do commit errors. If you're going to get zapped with a libel suit because you've committed an error, then even the bravest of them, unless they have private incomes, are going to be very, very, they're going to slow down the kind of reporting they do. Now, the distinctions that are made, I will grant that the Supreme Court's distinctions are very, very fuzzy. In fact, some of the justices often seem to have a very difficult time understanding what they did in the case before last. But there is a legitimate distinction between, on the one hand, public figures and public officials who, as Justice Powell said in the Gritz case, public figure is somebody who is in the vortex of public attention, whether he brought himself in there or is brought in there by a case. Therefore, he should have a higher standard by which to prove that he's been libel. The public issues situation, the ACLU had a very weak position on libel by my standards until about four years ago. They finally adopted a position that the Supreme Court very briefly, in the Metro media case, and not by a majority, but by a plurality, had, and that is that if the issue is of public, if it's a public issue, then the standard becomes very high indeed. It's an actual malice standard to successfully prove libel. And that's because going way back to the beginning, going back to Wilkes for that matter, going back to the ticado, the whole basic notion of a democracy is that the citizens have a right to criticize public figures, public officials, and issues of public importance, even if they're brought by a private citizen. Once you start restricting that right, you have restricted one of the most fundamental elements of a self-governing society. And by me, it's an anti-libertarian, both capital L and lower case, the libertarian point of view. If you're, I mean, speech ought to be free, period. Take a series of points that Mr. Hanoff made on no particular order. On the fact value distinction, I appreciate there's a long history and philosophy of people who brought up problems in drawing this distinction, but almost in all cases, it seems to me it's pretty easy to draw even just by looking at the intent and the way words are taken. Nothing of law is truly simple. That's why people get paid so much for doing it. But, you know, I mean, most reasonable people, for example, in the Mary McCarthy trial, against Lillian Hellman, the allegedly libelest statement was everything she, Lillian Hellman, has written, every word she's written is false, including the. And Lillian Hellman sued. Obviously that's an interpretive, evaluative statement that my view was a ludicrous libel student should have been thrown out. And I generally believe that judges, generally I believe that judges should have much more leeway and frankly should be doing a much better job in instructing juries and throwing out frivolous cases. I think the entire area of civil law has become kind of a, I mean, it's taking out some of the characteristics of people, tribunals and left-wing dictatorships where juries are just free to do more or less whatever they want to get even with anyone that they don't like. So, but that's where the problem is. I don't think you should throw out something as important to everybody's life as the right to one's own reputation in order to solve a problem that is rooted in much wider phenomena. As for public officials, I must say I am very tempted by the view Mr. Hinoff has taken that public officials in effect lose their right to, by presuming to run for public office, but I can't really take that. If we do that, I think the kind of people we'll get running for public office are the kind of people who don't care much about their reputation. And I don't think that's, now we have a great many of those already, but I don't want to broaden the flow. It seems to me someone who runs for public office is already exposing himself to a degree of evaluative and interpretive analysis to examinations of all areas of his life and properly so because politicians' characters is a key factor. But he's exposing himself already to a degree of attention, hostile and critical attention that most of us would shy away from. I think that's a high enough price to pay without having to take the chance that your actions, the people will be free to defame you with impunity by telling falsehoods, misrepresenting the actual facts of what you have done, making allegations about mob connections and child abuse. Imagine the things that are canon and sometimes are said about people. These are enormously destructive. When someone says that, to go back to my example, if someone says I'm a lousy writer, well, any rational person reading that will say, well, that's in a judgment. I'd have to make up my own mind. I'd have to see the evidence. If someone says he plagiarized his last piece, that's a factual statement that very few people are in a position to go around and check out for themselves. It's a kind of cognitive division of labor that we depend on. It's a crucial thing that we depend on in, as I say, pursuing almost any value. So as much as I would like to keep the chilling effect, and it's certainly true that there is a genuine chilling effect from the potential for libel suits, as much as I would like to keep that to a minimum, I would not do it at the cost of sacrificing another right. Particularly when, it seems to me, the broadest problem is by far rooted in the way civil law is being run across the board. Finally, on the distinction between private issues and public issues, issues of private significance, public significance, the last thing in the world, I think we should want the court to be doing, or the government in any form, is to be drawing distinctions of which issues are important and which aren't. If anything is a content distinction, that is. It's made a disaster area out of broadcasting law, because the Fairness Doctrine applies only in the context of a discussion of public issues. That's the formulation of the Fairness Doctrine. And so the FCC has these long, elaborate lists of what factors you might consider in distinguishing a public from a private issue. I remember one case that was, FCC rulings held at a broadcaster who discussed, what was it? Solar power. I've forgotten how this worked, but someone who took a position on solar power was found to be subject to the Fairness Doctrine because that was considered a public issue. Someone who took a position on wind power was not subject to the Fairness Doctrine because that was not considered to be an issue of public significance. The California case is separated by about three years. That's ludicrous, and you can imagine much more dangerous things happening. We're going to conclude this fascinating panel with an additional one or two-minute opportunity for each panelist to get up and say anything else he'd like to say, and then we're going to have a few questions. Where's the way to get rid of the difference between solar and wind power as a legal issue is to have no distinction at all and no libel of. Some years ago at New York University, Hugo Black was engaged in a dialogue, and somebody asked him, very much along the line that Mr. Kelly's been talking about, you must realize that there are reputations, that there are lives that are injured very seriously by these defamatory statements. And Black said, yes, indeed. There's no question about that, and it's a very painful, painful thing. But look, you either are free or you're half free, and you can't be half free. And that kind of pain, that kind of suffering is one of the risks that everyone faces living in a free society. It's a very unpopular position. And I want to just say as a footnote that I don't want to indicate that I'm talking here as abstractly as someone who has never been defamed. During the last presidential campaign on Nightline, Louis Farrakhan said that I was so in the service of the State of Israel that I interviewed people, when I interviewed people, I first found out where they stood on the State of Israel, and if they were hostile, then my peace on them was constant. This is not only, it happens not to be true, I haven't been writing at the time a series of, I must say, vicious attacks on the invasion of Lebanon, but that really can be very harmful to one's reputation as a reasonably credible journalist. And I suppose I could have sued and made enough money to stop it all and write novels. But it seemed to me that Farrakhan, as disgusting and also badly researched as that opinion was, was entitled to that point of view, and I could fight back. What do I do if I'm a private citizen and he did that to me? That's a whole other thing we didn't get into. I think there ought to be, if people want it, only when people want it, obviously, some form of arbitration rather than court situations where an arbitrator would declare, this person has indeed been defamed and spell it out and that reputation would be made whole. No damages. I'd like to see a part. No, yeah. But I like to wave my reply so we can have some more time to answer. Okay, I'll call on people and repeat the question and I'd like each of you to come up here if you want to answer it. Let's take, you in the corner there. I've spent a long day, Bob. It's okay, Michael, I'm your name. Mr. Hentop, it seems in a certain manner of perspective here that I hear a distinction between those who are arguing that of what should be at the apex of the social value heap, liberty or the individual, that there is a kind of a dichotomy implied by the discussion here where the reputation of an individual on the one hand is considered paramount, and on the other, the system in which the individual operates and I wondered if both of you would carry a comment on that. Repeating the extremely subtle and complex question is whether, what is at the height of the apex of values, the individual or freedom considered as an abstract system or principle, Mr. Hentop? I see liberty as individual liberty, fundamentally. Bill of Rights is about individual liberties. I don't see a contribution. The system is based on individual liberties, otherwise the system is not working. And the most important liberty is freedom of expression because anything you want to change in the system is going to come from your ability to say it. I would like to say a word about that. In my view, the system of rights is designed to protect two things, freedom of action and security and enjoying the results, the products of your action, so that property rights to me are as the important and fundamental aspect of human rights as rights to engage in actions, including those actions that resulted in producing property. Now, reputation is in the second category. It's the product of your actions. If you take away that whole category of rights or regard it as less fundamental, what you're saying is that the goal is less fundamental than the means. Freedom is the means to produce values that we need. One of them is reputation. You establish a record, the track record, as well just as a material producer produces assets that he can then use to do things he couldn't before. Those are the goals of these actions and you can't get rid of them or devalue them in relationship to the means, freedom of action. Joan. Yes, I was intrigued by Mr. Hentop's suggestion of arbitration for private parties and it seems to me that I find myself agreeing with both people here. I agree with Dr. Kelly about influence of property rights and I read with Mr. Hentop about being very skeptical about limiting the First Amendment. It seems to me that when we are talking about libel laws as they now exist, we are talking about a punitive system of damages, that there might be other ways in which the right to reputation could be preserved or safeguarded without actually getting into this punitive system which is, as Mr. Hentop mentioned, being terribly misused. I was very all during this. I didn't find enough reference, for instance, to people who are writing letters to the editor. I hope you're not going to try to repeat this. My question is, how do the two of you respond to the idea that perhaps we could think in other categories and have some kind of redress of the reputation without the punitive money? For the purposes of the tape, Joan asked if there are some alternatives that you can suggest to punitive damages such as arbitration to handle some of these problems. I'm glad you mentioned letters to the editor, the village voice, and I think this is true of more and more papers around the country because there have been libel suits that have held that the paper is responsible as well as the writer of the letter for whatever the writer of the letter says. Our people go over those at least as carefully as the regular articles as a result. A lot of letters are not published. In terms of arbitration, it's tricky. For one thing, suppose you have a system of arbitration where the fees could be low if you get the bar associations or somebody like that to get involved. But how can you guarantee that, let's say, if a person's reputation is made whole, at least as whole as an arbitration system can do it, how do you guarantee that people are going to know it? You can't force the local newspapers of broadcast Asians to broadcast or print this stuff. Some will, some will not. So that's a part of it that I don't think it's entirely too difficult to resolve. But that's something that still has to be worked out. And then there will always be people, and it's their right, who are so angry and feel that they do deserve money that they're going to go to the courts anyway. But somebody in Virginia wrote to the Washington Post after I did a piece on this saying that in her experience, they've been doing that. And there have been a significant diminishment of people suing for libel in the courts when they have this alternative. But I don't yet know how to guarantee, because I don't think you can, that people will know the result of the proceeding. If I could say one thing. I think arbitration is an ideal solution to a lot of issues that are now being tested through the courts. It's faster and cheaper and less aggravating. So anything that can be done in that line is fine. I still think you need a final court of appeal. You know, if people are not satisfied with, because we're not dealing with contract law here where you can say contract ahead of time to do it that way. Also, I believe this, I'm not a lawyer and I'm not 100% sure of this, but I believe that, for example, a paper's willingness to print a letter to the editor from someone is, at least in some jurisdictions, in context, taken as evidence as to negligence. That is, it's regarded as an indication that this was a careless error. I mean, it was an error, but not an irresponsible error and certainly not a malicious one. And I certainly think that's appropriate to do that. But I have to agree that there are people who will not be satisfied. And sometimes, rightly so, if 2020 accuses some businessman of burning down a building, that's an actual case. It's hard to get your name cleared with the same group of people by publishing an item in the back pages as a paper. Part of the arbitration that seems to me could be to make the offender publicize the retraction. Well, if that were, I'm sure most people would probably accept that. I mean, a paid ad, if necessary. Because you can't force the person who has to make the retraction can't force anybody to print it for free. The Ternillo case took care of that, thank God. But he or she can run an ad. Absolutely. That would be truly a violation if the law forced someone to print a retraction. I mean, the law across the board really can't force people to compensate in kind. I mean, it's all reduced to monetary damages. You can't spend... If someone destroys your gazebo in your backyard, you can't have the law say, this guy's got to come in and rebuild it with his own hands. That would be true. And this would be a violation of the First Amendment. Well, I'm convinced that paid restitution ads are the answer. One more question. Milton Mueller. Mr. Kelly, to basically direct it to you, first of all, it seems to me that you're not defending a right for reputation. You're saying that people don't have the right to say things that are factually not true, or can be shown to be factually not true. And I'm wondering how far you want to take that because it sounds a bit dangerous in terms of how far he's taken. Secondly, even if I'm convinced philosophically of your case, as someone who's studied the way regulation and legal process works, I'm skeptical of the ability of the course that translated into practice because of the fact that you can bring a case imposing enormous costs on somebody. And when the standard is as vague as negligence, the burden of proof is basically a very difficult... you're assuming it, basically, economically. You're assuming that the burden of proof. You've got to clear yourself of those charges. And couldn't this just be abused quite a part from the philosophical merits of your case? Let me take the second point first. The law can be abused. It's abused every day. People institute suits for delaying tactics in business. You know, to harass people. As I indicated before, I think that judges should have much greater leeway in throwing out frivolous suits or unmeritorious suits. But there's always going to be some of that. That's just inherited in the law. What you have to do is ask what would it be like without that, without any means of regress. I think you'd be sacrificing a right, an important right. On the question you asked about the right to reputation, I accept your formulation that I'm talking about a right not to have people misrepresent certain facts about you negligently. I mean certain facts. There's a wide range of factual issues on which everyone has an absolute unblemished First Amendment right to speak falsely. I would never deny the Flattered Society, for example, their right to misrepresent the shape of the earth. That's because the earth has no standing. It is not a legal subject. I suppose we can imagine a science fiction story involving some cosmic real estate deal where there was an issue of fraud. And actually I would use fraud as an analogy. There are certain statements in the course of conducting a sale which you have to make truly if you're going to make them. You cannot misrepresent the facts about whether the odometer has been changed on a used car. And if you do, that violates the buyer's right that's fraud. So I would never say, never dream of saying that you don't have a right to utter falsehoods. Most of my colleagues would be out of business if that were the case. Actually, that's camera. What I would say is that you don't have the right to utter... What I would say is that you don't have the right to utter falsehoods of certain narrowly specified types, those that violate rights of other people. I think it is possible for speech to violate rights. In this respect, I don't accept the idea that the only thing that can violate a right is physical coercion. I know it's a philosophical disagreement I would have with many people here, but let's just pull out answers I could give there. Well, thank you very much, both of you.