Category Archives: Law

I already wrote about crazy racist things that Ron Paul allowed to be published under his name

The other day, Tim Faust posted to facebook an article from Vice Magazine about some new, old news. Did you know that Ron Paul used to have lots of various publications printed under his name? And did you know that these publications used to be filled with awful, racist screeds attacking Martin Luther King Jr and black people in general?

Well, you would totally know that if you had read the Rice Thresher Backpage in January 2008. Because I totally wrote about it then. (pdf: thresher backpage ron paul racist)

So many great quotes were published under Ron Paul’s name. One of my favorites was about how Dr. King was “not only a world-class adulterer” but “also seduced underage girls and boys.”

The Rev. Ralph David Abernathy revealed before his death that King had made a pass at him many years before.

And we are supposed to honor this “Christian minister” and lying socialist satyr with a holiday that puts him on par with George Washington?”

George Washington owned slaves.

But anyways, letting such (assumedly non-satirical) language be published in one’s own newsletter should probably disqualify someone from running for president for one of three reasons. As Mobutu Sese Seko states in “RON PAUL: REACTIONARY RACIST LEPRECHAUN

There’s no way Paul could have been ignorant of the content in an 8-12 page newsletters published under his name for over ten years. Paul supporters face three losing propositions:

-He lacks the competency to control content published under his own name for over a decade, and is thus unfit to lead a country.

-He doesn’t believe these things but considers them a useful political tool to motivate racist whites, which makes him fit to be a GOP candidate, but too obvious about it to win.

-He’s actually a racist, which makes him unfit to be a human being.

These are some pretty hard hits against Ron Paul, but Ron Paul supporters don’t fall easily.

For example, when I wrote about Ron Paul’s racist newsletters, I did so on the satirical Backpage. But that didn’t stop Ron Paul supporters from writing letters expressing their indignation about such awful reporting in the not-news section.

To the editor:

I was surprised when I found an entire page in the latest Thresher devoted to attacking my favorite presidential candidate (“Backpage,” Jan. 18). Published were some grainy photos intended to attack the character of Dr. Ron Paul, a ten-term congressman.

If the author spent more than two minutes researching the subject, he would know that someone else had written the texts in question, yet Paul still took moral responsibility for not keeping tabs over the content. This issue was discussed and buried as irrelevant over a decade ago, but is now being dug up as the only way to attack a man who has gained the grass-roots support of millions across the country.

I suppose I should be proud to support a candidate whose biggest flaw is what someone else wrote decades ago, who has the largest number of contributions from blacks among all the Republicans, who consistently has spoken against all forms of institutionalized discrimination.

The larger problem is the journalistic dishonesty on the part of the editors. Yellow journalism labeled as satire still serves to exploit and sensationalize. Knowingly publishing false statements using the name of Rice University is a violation of the trust placed in the editors by the student body. In addition, attacking the many students who support Paul, implicitly accusing them of “racism by proxy,” should not be allowed to stand.

If our newspaper editors want to print personal attacks, let them do it under their own names, not under the banner of the university.

Of course, it was irrelevant a decade ago because Ron Paul wasn’t running for president a decade ago. And, despite magically turning pointing out racism into a crime worse than actual racism… well… as Tim Faust responded to Alice Townes: “Gurrrrrl, you don’t *need* to be clever when the source material is so rich.”

If you want to see the real racist, look in the mirror!

One can at least try to respect the intellectual consistency if the articles were about Gerrymandering problems that arise out of the Voting Rights Act, or unintended consequences of legislating racial integration, or funny third thing. But when there is a pattern of ad hominem attacks on civil rights leaders, and black people in general, well, I don’t need to think of a way to end this sentence.

Then again, as the letter asserted, “I suppose I should be proud to support a candidate whose biggest flaw is what someone else wrote decades ago.” But as Seko asserts, this is the least of Paul’s issues. Paul may express some positions appealing to many voters, beyond the insanity of deflationary gold standard policies or entirely eliminating the Federal Reserve. But his justification for these positions  isn’t exactly the same as voters’.

Liberals cheer his opposition to America’s wars, but his isn’t a moral choice so much as it is an echo of George Washington’s injunction against “foreign entanglements.” Further, while Ronald isn’t down with wars that cost money and expand federal power, he’s totally fine with the government making a buck from other people’s wars: He was the only member of congress to vote against the Darfur Divestment Act, which proposed the radical idea of prohibiting the American government from investing in businesses fueling a fucking genocide.

Of course, this justification leads to crazy votes and policies about which casual Paul supporters don’t really know and serious supporters don’t really advertise.

Independents sick of the government’s invasions of privacy celebrate Paul’s veneration of the Constitution, but that veneration is as convenient as Bush and Obama’s. Paul has repeatedly submitted the “We the People Act” to Congress, whose provisions remove Supreme Court review of First Amendment cases. If a state chose to criminalize being Muslim, citizens would have no federal redress. If a state chose to criminalize birth control, the penumbras of individual protections of privacy as explicated by William O. Douglas would disappear.

But nobody wants to hear that stuff. Government non-interference is sexy when it’s sold to you as, “Ron Paul opposes the War on Drugs.” What isn’t mentioned is that he has no problem with the concept of 50 individual state wars on drugs, and deregulating evidently stops when it comes to uterine production—he’s OK withvoting for federal partial birth abortion bans, for instance.

The way to fix the 21st century is to return to the values and socioeconomic order of the 14th. After you gut the FDA, you can even literally bring back the plague, which shouldn’t affect the rich people in Congress. They’ll be able to afford all the colloidal silver they can drink.

 Now, the super Paul supporters will just claim that this is out of some severe adherence to the plain language of the Constitution, as if that justifies the effects. But Paul doesn’t even like the Constitution. He likes his own crazy imaginary version of the Constitution:

His Constitution would also be a lot slimmer. He subscribes to the notion that the FourteenthSixteenth, andSeventeenth amendments are invalid or must be repealed. So long, income tax, but also so long to voting for senators yourselves. And if you don’t like foreign brown people, Paul’s opposition to the Civil Rights Act means you won’t have to share a dinner table with them for their last meal before they join 10 million other human beings in railcars, calling at all points south.

And in my view, the Constitution should have an extra amendment that forces the states to enforce the calling of “shotgun” when sitting in a car.

Of course, none of this is news. Ron Paul has had these political positions for a while. But opposing the drug war or supporting legalization of marijuana fit better into headlines than the underlying policies that lead to them.

But as the Republican primary continues, with primary voters more fickle than a gaggle of high school girls over the latest school hottie, Ron Paul has been the Justin Beiber with nearly religious support from a tight group of dedicated fans.

So these proclaimed buried issues are going to be readdressed on the national stage. And the world needs to know that I already did that in 2008 in the made-up joke section of a small college newspaper.

Tyrannical Houston Tow Trucks, and what we can do

Tow Trucks in Houston

Today, the Houston Press had a great blog entry about tow trucks. Specifically, how they act above the law, like a hoard of marauding bandits who regularly break into cars so that they can steal them and hold them hostage until owners pay outrageous fees.

Tow truck drivers in Houston can break into your car in order to tow it — against state regulations — and here’s why: Law enforcement ain’t gonna stop ’em.

We learned this by following up on an e-mail from a guy who says he watched a driver for Fast Tow jimmy the locks on an SUV in order to get inside and secure the vehicle for towing. (The truck was parked on a portion of the road that, at that time of night, was a no-parking zone). It made us wonder: is this legal? Should be a fairly simple thing to find out, no? Boy, were we wrong.

The blog’s comments section is filled with personal anecdotes about unscrupulous tow truck drivers who jimmy (aka break into) cars to make towing easier. Tow truck drivers will even wait and watch someone get out of a car and then go tow it, and then demand a bribe if caught by the owner.

A Semi-Personal Anecdote about Towing in Houston

While blog comments are not necessarily the most reliable sources, they certainly fit my own experiences. One of the best stories I have heard was from my college roommate Eric.

He had gone downtown for something or other, and parked in one of those parking lots where you slip the right amount of money into a little slit that corresponds with the number of the spot where you parked your car. This Rice University engineer was not one to cut corners or break the rules, but when he returned he found his car had gone missing. If I remember the story correctly, at first he assumed it was stolen, but then realized it had probably been wrongly towed. After getting a ride home, he contacted the towing company whose number was posted at the parking lot, attempting to locate he car. He tried to explain that it had been wrongly towed, but to no avail. Eventually, he had to pay the towing fee, which I believe was somewhere over $200.

The tow truck companies messed with the wrong guy.

He did some quick research, and decided to file for a hearing against the tow truck company. Well, of course, he won. Part of prevailing in such a hearing means he was awarded:

Court costs to the prevailing party;

The reasonable cost of any photographs to an owner or operator of a vehicle who prevails;

An amount equal to the amount that the towing charge or booting removal charge exceeded fees for non-consent tows; and,

Reimbursement of fees paid for vehicle towing and storage or removal of a boot.

Despite having prevailed in the hearing, my roommate had quite some difficulty getting the tow company to pay him back. Eventually, he had to get a sheriff to show up at the towing facility and force the company to pay back the money they basically had stolen.

Alas, not everyone is as resourceful and driven that Rice engineer roommate.

Indeed, in a gun-friendly place like Texas, it is easy to imagine such a situation turning violent. Someone walks out to his or her car, only to see a stranger breaking in through the window, preparing to tow it away. I know some small part of me would want to be able to pull a gun on such scum.

After all, the purpose of parking and traffic laws should not be to line to pockets of these disgraceful companies, but rather to maintain the safety of our roadways, aesthetics of our neighborhoods, and business interests of our parking lots. If someone offers to move his or her vehicle, and perhaps pay whatever fine exists for the wrongful parking, then that should be enough to fulfill the purpose of the law. Letting tow trucks run wild only increases the risk of harm to our communities and compounds the danger of our streets and freeways.

The comments on the Houston Press blog are certainly not wanting for personal examples of tow trucks making our streets more, not less, hazardous. Indeed, a quick google search can find many such instances.

However, despite the gut reaction, we do have ways to ameliorate this despicable practice that our city seems to tolerate. The way to defeat the hegemonic power of this tow truck regime is through the democratic avenues  of our duly elected officials.

City Hall needs to pass some laws.

There Ought to be a Law

First, Houston should impose strict liability upon tow truck companies. Regardless of whether it was their fault or not, tow truck companies should be held liable if they wrongly tow a vehicle. This legal standard would help ensure that the tow truck companies double check that they are correctly towing a vehicle. After all, the burden would be on them.

Secondly, Houston should not limit recovery for a wrongly towed vehicle to reimbursement of court costs and towing fees. The city should legislate that courts can provide recovery for Actual Damages.

To quote my Barbri practice book, Actual Damages means any damages recoverable at common law, including economic and non-economic, and tort damages. This standard includes mental anguish as well as pain and suffering.

Additionally, Houston should borrow from the Texas Deceptive Trade Practices Act, and compound damages based on whether the wrongful towing was committed knowingly or intentionally. If the tow truck company knowingly towed a vehicle when it shouldn’t have, the court should be allowed to reward up to double actual damages. If the tow truck company intentionally towed a vehicle when it shouldn’t have, the court should be allowed to reward up to triple actual damages.

Such a calculation of damages may reach an rather high cost, but the power imbalance in the towing regime justifies creating an economic and legal incentive to guarantee that all towing is proper. After all, anecdotes and experience show that citizens have quite the difficult time negotiating with tow truck drivers. Tow truck drivers need incentive to admit to fault when confronted, and these sorts of damages are just the incentive that our city can provide.

Furthermore, Houston is a driving city. A person’s car is often a lifeline to work, school, family, or anything that Houston has to offer. To take away someone’s car is to remove her from a functioning city. City Hall should do everything it can to guarantee that those who have their cars wrongfully towed are properly compensated, and also guarantee an economic and legal incentive against wrongful towing.

Thirdly, Houston should prevent tow trucks from towing non-ticketed cars from public streets and parking lots. Tow trucks are not elected officials. They are not the police. They are not public servants and they do not act to protect and serve. Tow trucks are businesses, run by private citizens. They should not be allowed to remove other citizens’ vehicles at whim. Only upon approval from properly trained police officers should tow trucks have the authority to remove cars. We would not allow tow trucks to go around granting tickets for speeding or running red lights. Heck, Houston doesn’t even like it when the police do that via cameras. Then why do we let tow trucks enforce parking laws? This is a responsibility for the police, not private companies.

Fourth, Houston should legislate that tow trucks are city actors. If tow trucks are going to enforce parking laws like police, then they should be held responsible like police. If tow trucks are going to seize private property, then they should be held to same standard as the other grand seizer of property: the government.

Therefore, as state actors, tow truck drivers could be held subject to §1983 charges. This means that tow trucks could be brought to Federal Court for violating a citizen’s rights under the constitution. This would help ensure that tow trucks don’t just act in accordance with proper towing law, but act up to the highest standards of liberty. This would prevent discrimination in the method of towing. It would also allow drivers to remove their complaints from local elected judges who may be under the sway of tow truck company donors, and seek the judgement of the Federal Judiciary.

Fifth, tow trucks should not be allowed to breach the peace while towing. This rule would hold tow trucks to the same standards as repo men. Similarly to repo men, tow trucks generally do not need a judicial process before seizing a vehicle, nor do they need to provide notice. However, repo men are not allowed to breach the peace in the process of repossessing property. This means that if either repressor or the reposessee breaches the peace during a repossession, then the repossession is not OK.

If Houston applies this standard to tow trucks, it means that people who find their vehicles in the middle of being towed can stop the towing by breaching the peace. Breaching the peace requires no grand effort, a mere making a scene or loud temper tantrum should be enough. Heck, even onlookers who disapprove of a towing could prevent it by honking at the tow truck and generally breaching the peace.

Imposing this standard would help guarantee that if someone was being towed, well gosh darn it, he deserved it.

Finally, tow trucks should have to make reasonable attempt to provide notice to the person whose car is being towed and give that person a reasonable opportunity to move the car. Houston could accomplish this by creating standardized “notice cards” that people could place in their cars or under their windshields that include number where they could be contacted in case of towing. A tow truck would have to make a reasonable effort to locate such a card, contact the owner, and then grant that person a reasonable amount of time to move the vehicle.

After all, the purpose of parking and traffic laws is not to enrich private companies, but provide for safety, aesthetics, and business interests. If someone can move his car, then the goals of the laws are fulfilled. There is no need to force citizens to pay often-dangerous, private towing companies to guarantee that we follow the laws.

In conclusion…

The state of towing in Houston is despicable. However, we have a way to resist this towing regime without resorting to violence. We have our duly elected representatives in City Hall. So write the mayor, write your city council person, write the Houston Chronicle. We can change the laws.

Or we can throw some eggs at tow trucks, whatever.

Please give me, Evan, a job

Today the Jurist released its last issue of my law school career. Or as I like to call the past three years: a mistake. But what’s done is done. I’ve made my bed, and now I have to weasel my way out of it. So rather than buckle down, get good grades, and do whatever it takes to get a job, I did what I do best: write a snarky column.

I’m pretty proud of this column, which I wrote instead of my back up plan: advocating for the American Psychiatric Association to rename narcissistic personality disorder as “Evan’s Disease” in the DSM-V.

Anyways, I suppose it is sort of a suicide note for law school, but in a good way. The tone and jokes slowly build to a climactic moment, and I hope that moment is obvious. Admittedly, the overall column style was directly inspired by an old Dylan Farmer sports  column in the Rice Thresher. And by “inspired,” I mean I stole the idea.

Here is my final column for the Cardozo Jurist, “Hey, Employer! Have You Heard About Evan Mintz? No? Read This Column” (pdf: Mintz Jurist hire me)

Legal remedies against the Texas Sonogram Bill?

[Warning: This entry has medical drawings of vaginas]

Ah Republicans, the party of small government except for vaginas. At the rate they want to regulate those things, you would think that vaginas work by trading synthetic derivatives made out of radioactive mercury. After all, what do you think that red dot in the Kotex commercials stands for?

Cap and trade?

The biggest recent issue is Texas HB15, which would require a sonogram before a woman gets an abortion. To quote the Austin-American Statesman:

House Bill 15 requires a woman seeking an abortion to allow a medical professional to perform a sonogram, display live images of the fetus, provide an explanation of the images and play audio of a heartbeat, if there is one. All that is supposed to happen at least 24 hours before the procedure.

But beyond the generic government intrusion into the doctor-patient relationship, the intrusion extends literally into the vagina. You see, the bill doesn’t just require a sonogram, but a transvaginal sonogram.

Usually when people think of sonogram, they think of the jelly on the belly sort of thing, which is known as an abdominal sonogram.

Aww, it looks just like its incredibly blurry, black and white mother!

However, for women who are 8-12 weeks pregnant, a abdominal sonogram won’t show up anything. As Politifact Texas writes, the bill requires that the sonogram “display the live, real-time obstetric sonogram images in a quality consistent with current medical practice in a manner that the pregnant women may view them” and “make audible the live, real-time” heart beat. And in many circumstances, a abdominal sonogram simply won’t cut it. Therefore, to comply with the proposed law, doctors would have to perform a transvaginal sonogram.

That is exactly what it sounds like.

To cite the medical encyclopedia on the University of Maryland Medical Center website, the transvaginal ultrasound looks at a woman’s reproductive organs by placing a probe into the vagina.

The Masonic Cancer Center provides a great picture of what this involves.

Texas Republicans want to force doctors to do this to women.

This is a rather invasive procedure that is not necessarily medically necessary. It is being forced upon women and their doctors by Texas Republicans not for medical ends, but for political desires.

Women have a Constitutional right to control their bodies, and this means abortions. But do women also have a right to control their bodies to the extent that they can opt out of this government-mandated procedure?

Now, I’m not the world’s best law student. Heck, maybe not even fifth best. But I have taken a Criminal Procedure class. This situation reminds me of the class section on Invasive and Bodily Searches, notably the contrast between Schmerber v. California and Winston v. Lee.

In the first case, Schmerber was hospitalized following a car accident. A police officer smelled alcohol on him and thought he was drunk, and thus ordered a physician to take a blood sample despite Schmerber’s refusal to consent to the search. In that case, the Supreme Court held that, despite suspect’s protest, a physician may take a blood sample from someone suspected of drunk driving. If I recall correctly, the court did not directly address whether such a search violated the 4th Amendment protection of privacy. However, the court did recognize that it was a clean slate issue, and that blood sample searches were justified if the means and procedures were reasonable, especially given that the key evidence (alcohol in the bloodstream) was slowly being destroyed by the liver.

The Winston  case also addressed a body-invasive search. In that case, a shopkeeper shot a robber who was later found and taken to the hospital. The robber was charged with the crime, and the state moved for an order to remove the bullet lodged in his collarbone, asserting that it would provide necessary evidence. While the the surgery was originally thought only to require local anesthetic, x-rays revealed that a general anesthetic and invasive procedure would be necessary.

In that case, the court held that a compelled surgical intrusion into a person’s body for evidence implicates expectations of privacy and security of such magnitude that the intrusion would be unreasonable under the 4th Amendment.

Admittedly, that case relied on the specific facts of the situation. The court held that the reasonableness of surgical intrusion depended on a case by case approach, balancing individual interest in privacy and security against society’s interest. Notably, in this case the bullet was not the only evidence in the case and was not absolutely necessary to prove the robber’s guilt.

Now, I am not the best law student and I don’t know if this sort of criminal law precedent will apply to a civil law. However, it seems like there is an argument to be made here that the courts have differentiated between external and internal bodily searches. If the bill requires internal sonograms, then this should be treated differently than external ones.

This argument is a bit of a stretch, I know. And there are other arguments to be made along the lines of the government forcing speech upon the doctors, for which I’m sure there are rebuttals.

But to get down to the real brass tacks, without realizing what they were doing, Texas Republicans are forcing doctors to perform transvaginal sonograms on women when they are not necessary, and when women are at their most vulnerable.

Because Republicans want small government. In fact, government should be so small that it can fit inside a vagina.

Child Porn, Evan Emory, and Free Speech

Is this child porn? Eh, why not.

Oh how many laws have been passed under the rubric of: “Won’t somebody please think of the children?!”

From drug laws to pornography, all the fun things get banned because of concern for children. Claim to be protecting children, and you can basically justify a cutout exemption from the First Amendment. The most recent cutout under this scheme is probably child pornography. As the Supreme Court held in US v. Williams, the harm to children from child porn is so severe that is justifies criminalizing any and all parts of the process involved in child porn, from solicitation to creation to delivery to consumption. There is no other sort of expressive act that is so regulated out of fear of harm, except maybe national security concerns (see: Wikileaks). In US v. Williams, the majority even recognized that the PROTECT Act was overbroad and would regulate protected speech. However, the overbreadth doctrine dictates that there must be substantial overbreadth for a statute to be constitutionally overbroad, which the court said didn’t exist in that case.

In the end, the law punishes anyone who:

advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct.

Which brings us to recent news in the world of aspiring YouTube comedians. Recently, Muskegon County prosecutor charged one Mr. Evan Emory with “manufacturing child sexually abusive material,” which carries a penalty of up to 20 years in prison and 25 years on the sex offender registry. His crime? Singing fun songs to elementary school kids, and then recutting it so it looked like he was singing them a song with graphic sexual lyrics.

Evan Emory making child porn

Is it illegal to recut a video to make it look like kids are singing along to sexual lyrics and then being titillated by that? Let’s look at the letter of the law. From what I can discern, Emory is being charged under Michigan Penal Code, XX, §750.145c(2): Child sexually abusive activity or material:

A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child.

That is a lot to swallow, but basically if someone makes or allows a kid to engage in sexually abusive activity for the purposes of making material from that, or somehow oversaw its creation, they go to jail for up to 20 years.

But what does “child sexually abusive material” mean? Luckily, the statute defines that in 750.145c(1)(l), as “means a child engaging in a listed sexual act.” And boy do they list the sexual acts, in 750.145c(1)(h): “sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity.”

Those are pretty broad terms. What do they mean? Well the statute describes those too.

(f) “Erotic fondling” means touching a person’s clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breasts, or if the person is a child, the developing or undeveloped breast area, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved. Erotic fondling does not include physical contact, even if affectionate, that is not for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.

(g) “Erotic nudity” means the lascivious exhibition of the genital, pubic, or rectal area of any person. As used in this subdivision, “lascivious” means wanton, lewd, and lustful and tending to produce voluptuous or lewd emotions.

[…]

(i) “Masturbation” means the real or simulated touching, rubbing, or otherwise stimulating of a person’s own clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breasts, or if the person is a child, the developing or undeveloped breast area, either by manual manipulation or self-induced or with an artificial instrument, for the purpose of real or simulated overt sexual gratification or arousal of the person.

(j) “Passive sexual involvement” means an act, real or simulated, that exposes another person to or draws another person’s attention to an act of sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, sexual excitement, or erotic nudity because of viewing any of these acts or because of the proximity of the act to that person, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.

[…]

(o) “Sexual excitement” means the condition, real or simulated, of human male or female genitals in a state of real or simulated overt sexual stimulation or arousal.

(p) “Sexual intercourse” means intercourse, real or simulated, whether genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between a human and an animal, or with an artificial genital.

[…]

(n) “Sadomasochistic abuse” means either of the following:

(i) Flagellation or torture, real or simulated, for the purpose of real or simulated sexual stimulation or gratification, by or upon a person.

(ii) The condition, real or simulated, of being fettered, bound, or otherwise physically restrained for sexual stimulation or gratification of a person.

So do any of these describe what Emory did? Well, first let’s address exactly what happened. There doesn’t seem to be any nudity or actual sex in the video. It was apparently clean enough for YouTube to keep up until Emory himself removed it. No children were directly harmed, or made to listen to the lyrics. However, the lyrics themselves are certainly dirty.

“See how long it takes to make your panties mine”

(wide shot of the children)

“I’ll add some foreplay in just to make it fun”

(close up of girl laughing)

“I want you to suck on my testes until I spurt in your face”

(close up of girl covering her mouth)

“I’ll lick on your chewie”

(close up of two girls covering their mouths)

“I want to stick my index finger in your anus”

(close up of boy making a shocked face)

“I’ll be the bus riding your ass up and down my town”

(close up of boy with grossed-out look on his face)

“I’m gonna use my sausage to make fettucine, then for dessert have a Harry Houdini”

(close up of girl laughing and rocking)(Link)

Furthermore, according to another description, he also mimed getting off in front of them. Then again, I haven’t seen the video, so I’m relying on other peoples’ descriptions. But taking these at face value, do they fall under the law? I can’t find any cases that analyze the meaning of the descriptions, so this analysis will have to go on the text itself.

He didn’t touch any of the kids, real or simulated, so it wasn’t erotic fondling. There was no nudity, so it wasn’t erotic nudity. There was no sadomasochistic abuse either, at least from the descriptions. There is not sex, real or simulated, so sexual intercourse doesn’t seem to count. However, the law’s description of sexual intercourse does include “oral-genital” and “an artificial genital,” so it is possible that Emory miming a blowjob or such could fall under this description. Sexual excitement may fit here, but the language in the law focuses on the state of the genitals themselves, and Emory doesn’t seem to actually sport a boner, real or simulated, at least according to the descriptions of the video. Masturbation does include real or simulated masturbating, so his faked self-enjoyment, if that was in the video, could fall under that section. However, it wasn’t forcing masturbation upon the kids, but merely himself. Rather, passive sexual involvement seems more applicable.

“[A]n act, real or simulated, that exposes another person to or draws another person’s attention to an act of […] masturbation, […] because of viewing any of these acts or because of the proximity of the act to that person, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved.”

This may be where Emory gets caught. His video did, according to some descriptions, simulate the exposure of the children to an act of masturbation.  If these descriptions of the video are correct, then Emory may be guilty under 750.145c(1)(j).

However, the key point is that children were not directly involved in the end result. A good metaphor would be CGI child pornography. In Ashcroft v. Free Speech Coalition, the Supreme Court distinguished between CGI child porn that used actual children to create it and CGI porn that did not use actual children. Indeed, pure CGI porn records no crime and creates no victim. And while Congress argued that pure CGI child porn still encourages acts that harms children, the court held that was not enough to past First Amendment scrutiny:

The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct. This rationale cannot sustain the provision in question. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.

However, CGI porn that originates from an actual child creates a visual record that can embarrass or harm the child in the long run. And if the people and parents are pissed about anything in this whole scenario, it is that their children were involved and clearly identifiable in Emory’s video:

“One visibly angry man expressed his displeasure with Muskegon County 60th District Court Visiting Judge Robert A. Benson’s decision to allow Emory to go free on bond.

“He got our kid on video!,” one angry Beechnau father shouted.

Another upset father, Charles Willick, of 1100 N. Ravenna, told reporters that “it’s ridiculous” what Emory did with the video.

“I’m disgusted by it,” Willick said. “It was totally uncalled for.”” (Link)

Also:

“I was very upset that my child’s innocence was exploited on TV and made fun of,” Cox said, waiting outside a Muskegon County 60th District Court room for the arraignment of Evan Daniel Emory. (Link)

If the parents seem to be angry about anything, it is what the court identified as the difference between the two categories of CGI porn: one involves actual children and can affect them in the long run, and the other does not. The statute itself makes this distinction, recognizing that the porn involved must not use part of an actual person. If a child is actually involved, then the end result cannot have redeeming value.

(a) “Appears to include a child” means that the depiction appears to include, or conveys the impression that it includes, a person who is less than 18 years of age, and the depiction meets either of the following conditions:

(i) It was created using a depiction of any part of an actual person under the age of 18.

(ii) It was not created using a depiction of any part of an actual person under the age of 18, but all of the following apply to that depiction:

(A) The average individual, applying contemporary community standards, would find the depiction, taken as a whole, appeals to the prurient interest.

  1. The reasonable person would find the depiction, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(C) The depiction depicts or describes a listed sexual act in a patently offensive way.

Emory’s video was created using a depiction of a part of an actual person under the age of 18. It was a mere trick of visual editing, but so is CGI child porn that incorporates a part of an actual person, and that can be banned. Even if the work has some redeeming value and doesn’t appeal to a purely prurient interest, if it includes part of an actual person, it is illegal under this state statute.

Emory has indicated that he just wants to settle so he doesn’t risk going to jail or being placed on a sex offender list. However, it would be interesting to see this case be argued.  Sure, it may have been a bit of a dick move to make the video without school or kids permission, However, he didn’t pander it as a porn video, but as a joke video. There is no actual porn in it. The children are not exposed. No one actually does anything actually sexual or intended to be actually sexual.  And while child pornography may be universally abhorrent on its face, O’Connor’s concurrence in New York v. Ferber states that porn is not always valueless and thus not always unprotected by the First Amendment.

On the other hand, perhaps parents should be allowed to prevent their children from being featured in videos, especially dirty joke videos, without their consent.

This whole case really raises the question of “What is child porn?” So rather than ramble more about it here, I’m going to write about it for my First Amendment Theory class. Hopefully in a few months I will post a much better analysis about this whole thing.

But for those who like to make dirty jokes on the Internet, it is all a somewhat scary prospect.

[Edit: Under the plea deal, Emory will serve 60 days in jail, two years of probation and 200 hours of community service. He will not have to register as a sex offender.]

I wrote a column advocating a national holiday for lawyers

Another month, another Cardozo Jurist. Like usual, I had a column. This time, I wrote about how the real defenders of liberty and freedom aren’t in the military, they’re in law school.

Of course, Andrew Sinclair had the best retort: “You know Evan, not all lawyers defend liberty. The Obama Justice Department for example.” And then he went on a rant about John Yoo.

He is right, not all lawyers dedicate themselves to universal justice. But I would argue that the legal industry overall does a better job preserving the rights and liberties of U.S. citizens than the military does. So where is our holiday?

Without further ado, “Lawyers Deserve a National Holiday.” (pdf: Mintz Cardozo lawyer holiday)

 

A paper I wrote about libel laws in the United States and Canada

Earlier today, Kyle made a comment on Facebook that was serendipitously related to a paper I wrote last semester discussing the difference in U.S. and Canadian libel laws.

So in answer to his query about the difference between U.S. and Canadian libel law, here is the paper I wrote for Comparative Constitutionalism. It wasn’t my best paper, but I got a B+ in the class, so I think that should be good enough to at least provide basic information about the topic. But rereading for the first time since completing it in December, it is pretty awful.

pdf: Mintz Cardozo paper on US and Canada libel law

Evan Mintz

Libel Standards in Canada and the United States

I. Introduction

A.  The U.S. actual malice standard for libel, and nations with a similar standard

The landmark U.S. Supreme Court decision in New York Times Co. v. Sullivan established the high standard of requiring actual malice to prove libel.1 However, Sullivan has not just set the standard for the United States, but acted as guiding case for many other countries as well.  Argentina has actively applied the actual malice doctrine since the 1987 case Costa, Héctor R v. Municipalidad de la Capital y otros.2 In that case, the Argentine Supreme Court spotlighted Sullivan, noting that American free speech jurisprudence is undeniably relevant to how freedom of the press should be interpreted under the Argentine Constitution.3 Bosnia has also adopted a malice-based libel standard, holding that “harm [is] caused in making or disseminating the expression of he or she knew that the expression was false or acted in disregard of its veracity.”4 The Hungary Constitutional Court has also held that actual malice must be proved in libel cases.5 The Hungary court echoed Justice Brennan’s “perfect and splendid” language from Sullivan, stating, “In these [wide-open] debates governments and officials are attacked by unpleasant, sharp and possible unjust accusations, and facts are brought to public knowledge which are capable of offending the honor of public figures.”6 However, the court held that open discussion of public affairs is essential in a democratic society, rendering criticisms of government authorities a necessity. The Supreme Court of India has endorsed the actual malice standard as well. In Rajagopal v. State of Tamil Nadu, the court held that public officials cannot recover damages for libel when the actions are discussed in context of official duties, reasoning that this should be held “even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for the truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts.”7 An intermediate appellate court in Pakistan has also held actual malice as the standard for defamation cases. The judge in Nazami v. Rashid held that public figures must prove that defamatory statements are false and that they were published “recklessly and maliciously” with no attempt at verification, and thus that statements critical of public figures cannot give rise to liability unless motivated by malice, personal ill will or “spite and eliberate and false attack on one’s personal life.”8 Indeed, given this vast smattering of nations from South America to Europe to Asia adhering to an actual malice standard for libel against public figures, it is easy to see that the U.S. standard held in Sullivan has had a global impact, even on nations that do not share a similar history, origin, or philosophy. However, it then seems almost contradictory to note that the United States’ closest neighbor, Canada, not only has a different standard, but has actively contemplated and rejected the U.S. standard.

In this paper, I will compare the U.S. standard actual malice against the Canadian strict liability standard, with specific focus on the Canadian Supreme Court case Hill v. Church of Scientology of Toronto. I will also analyze the comparative histories of the two countries in an attempt to elucidate the reason behind the different constitutional conclusions, with specific focus on the historical role of the press and attitudes towards truth and falsity.

II. Actual malice in the United States and strict liability in Canada

A. The U.S. perspective in Sullivan

Prior to Sullivan in 1964, the United States had a strict scrutiny standard for libel similar to the current Canadian model. However, with the decision in Sullivan, the Supreme Court extended First Amendment protection of speech to a large range of defamatory expression. The case concerned a Montgomery, Alabama city commissioner, Sullivan, who sought compensation for injury to his reputation caused by factual errors in a pro-civil rights advertisement printed in the New York Times. The ad, titled “Heed Their Rising Voices,” described the plight of civil rights in the south and advocated for help.9 Sullivan pointed out that the advertisement contained several misstatements of fact, such as misstating the number of times Dr. Martin Luther King, Jr. had been arrested and that students on the capitol steps had not sung “My Country, ‘Tis of Thee,” but rather the national anthem.10 Although Sullivan was not mentioned directly in the advertisement, the ad did attack the Montgomery police, for which Sullivan was generally responsible. As a result, the Alabama jury awarded Sullivan the $500,000 he sought in the case.11

However, upon appeal to the Supreme Court, a unanimous opinion held that “the Constitution delimits a State’s power to award damages for libel actions brought by public officials against critics of their official conduct.”12 The opinion, described as written “without a great deal of comment,” held that the court’s enforcement of common law was state action and subject to constitutional scrutiny, explaining that criticism of public officials and the manner in which they fulfill their duties mandate special protection under the democratic process of government.13 Therefore, to protect the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open,” the court required that public officials could only recover damages for defamation if they proved that the statement was made with actual malice.14 According to the court, actual malice would be present in the event that a defendant had knowledge of a statement’s falsity prior to its publication or if the defendant acted with reckless disregard of its truth or falsity.15 While there has been a discernible trend since Sullivan in the U.S. court system towards limiting the public figure category, the Supreme Court has held to the core of the Sullivan decision, a core that has influenced other legal systems worldwide.16

B. The Canadian perspective

1. Canadian common law standard

Contrary to the U.S. actual malice rule, Canadian defamation law adheres to a strict liability standard, which holds that liability does not depend upon the intent or malice of the publisher but rather the mere fact that defamation occurred.17 If a plaintiff proves that a statement is defamatory, then falsity and damages are presumed and the burden shifts to the defendant. Supporters of this standard justify the presumption of falsity and damages based upon three key notions. First, it is generally difficult for a plaintiff to prove damages because of the inherent difficulty in stating the monetary consequences a defamatory statement. Secondly, it is similarly difficult for the plaintiff to prove the falsity of a false statement, treading into the philosophical quandary of trying to prove a negative. Third, the requirement that the defendant prove the truth of the statement is consistent with the minimal standard of competent journalism.18

Of course, a defendant does have several defenses to a charge of defamation. Absolute privilege is granted to statements made by participants in Parliament, provincial legislatures, and judicial proceedings for the purpose of free and open debate. The media benefits from that privilege as well when it reports on those events in a fair, accurate, and timely manner.19 Furthermore, plaintiffs only have a limited amount of time to issue a libel notice to the defendant in a libel suit. In contrast, the U.S. Statute of limitations on libel actions is 1-3 years.20 On the other side, potential plaintiffs are given several days to review the statement, and if they concede a mistake and offer an apology, the courts will lower damages to actual damages rather than damages for harm to reputation. This usually amounts to the courts finding no damages at all.21 In addition, the Canadian “losers pay” rule helps to discourage unfounded claims from reaching court.22  Despite these protections, the strict scrutiny rule for libel has come under attack from free speech advocates who would prefer a standard more along the lines of the actual malice.

2. Balancing the Canadian Charter of Rights and Freedoms with the Common Law standard in Hill v. Church of Scientology of Toronto

Canadian advocate of a stronger freedom of expression and stricter libel requirements, point to the Canadian Charter of Rights and Freedoms. Specifically, section 2(b) of the Charter identifies a basic freedom of expression:

2. Everyone has the following fundamental freedom:

[…]

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.23

After the implementation of the Canadian Charter, it was increasingly argued that Canada’s strict liability libel law inappropriately infringes upon these free speech rights by offering a legal avenue to censor or chill the press.24 This apparent conflict between Canada’s common law rule of strict liability and a proclaimed fundamental freedom of expression came to blows in the Canadian Supreme Court case Hill v. Church of Scientology of Toronto.25

In that 1995 case, the Supreme Court of Canada actively rejected the actual malice rule and held that the strict liability standard was a proper balance between reputation and freedom of expression. Hill was a lawyer with the Ministry of the Attorney General for the Province of Ontario and acted for the Crown on legal matters concerning the Church of Scientology and a police search and seizure of its documents. The documents were sealed awaiting a search warrant, but another government official initiated a review of the documents to determine whether the Church of Scientology should be allowed to grant marriages like other religions. Even though Hill was not involved in this review, the Church held a press conference and alleged that Hill misled the court and helped to open and inspect the sealed documents, and initiated a contempt prosecution against Hill. However, even though the Church’s own agent monitored the documents and found no evidence that they had been tampered with, the Church continued its rhetoric against Hill and sought to disqualify him from the proceedings.26 Hill sued the Church for damages from the libel at the press conference. The jury awarded Hill $300,000 against the Church in general damages, and $500,000 and $800,000 against the Church for aggravated and punitive damages.27

Upon appeal, the Church argued that the common law standard was contrary to the Charter and encouraged the adoption of an actual malice standard. The Supreme Court rejected these arguments and found that common law defamation was not contrary to the Charter. First, it held that Hill’s employment as a Crown attorney did not automatically make his action into state action, and therefore did not submit the resulting defamation suit to direct Charter scrutiny: “The fact that persons are employed by the government does not mean that their reputation is automatically divided into two parts, one related to their personal life and the other to their employment status.”28 The court explained that basing a standard for libel cases on one’s employment would essentially create two different systems of laws. According to the Canadian Supreme Court, the importance of one’s personal reputation does not change based on government employment, but exists for everyone.29

This analysis stands in contrast to the U.S. standard in Sullivan. In that case, the court found a parallel between the privilege granted to government officials and the extent to which officials’ work could be considered government action. In Barr v. Matteo, the Supreme Court found the utterances of a federal official to be absolutely privileged if made ‘within the outer perimeter’ of his duties.30 This privilege was granted because the threat of damage suits would otherwise “inhibit the fearless, vigorous, and effective administration of policies in government” and “dampen the ardor of all but the most resolution, or the most irresponsible, in the unflinching discharge of their duties.”31  Therefore, analogously the citizen-critic of the government should be allowed to comment on government actors to the same outer perimeter of the actors’ duties. If the protections for the public were not as broad as those for the government actors, public servants would have an unjustified preference over the public they serve.32

Secondly, the Canadian Supreme Court held that because there was no state action, the Charter could not be directed applied. Rather, the court held that in the context of civil litigation involving only private parties, the Charter only applies to the common law merely to the extent that the common law itself is found to be inconsistent with Charter values.33 Furthermore, because common law is the product of incremental cases and decisions, it should be protected from overwhelming constitutional changes, thus requiring a more flexible balancing test than traditional analysis used in cases involving governmental action cases.34 For the Hill test, the burden would lie on the party that seeks to prove that the common law is inconsistent with Charter values and that common law should be changed as the result of a balancing.35

In applying this test, the court emphasized that freedom of expression was never understood in the Canadian context, both before and after the Charter, to be an absolute value.  Freedom of expression has been regularly subject to legal restrictions in Canada, and weighed against the other values of a free and democratic society.36 Specifically, the court explained that false and injurious statements do not relate to the protected core values of a democratic society,  and fail to contribute to healthy participation in society. As a result, they harm self-development, and are inimical to the “search for truth.”37 On the other side of the balancing test is the protection of the reputation of the individual, which the court admited has a somewhat scarce written history. Despite this, the court asserted that most people cherish a good reputation above all else and that it is closely tied to the innate worthiness and dignity of the individual, and therefore it must be protected by society’s laws and much as freedom of expression.38

Finally, the court actively considered and rejected the Church’s proposal of adopting the actual malice rule developed in Sullivan. The court emphasized the supposed adverse effects of the actual malice standard in the years since Sullivan. Among the consequences, the court identified shifting to the plaintiff the burden of proving the truth of a statement, requiring an unnecessary spotlight on media proceedings to prove malice, increased litigation costs, and the social costs of undermining discourse with false and denigrating statements.39 The court also demonstrated how the United Kingdom and Australia had rejected the actual malice standard, in contrast to the United States.

Why differences?

A. Historical role of the press in politics

The position of the press in the U.S. political system and history offers an insight into differing attitudes towards libel law between the United States and Canada. Indeed, the prominent role the press plays in the U.S. political process was a key argument in Sullivan for  the protection of defamatory speech against public officials. Indeed, the press played an active role in the creation of the United States itself in the Revolution War. The Salem Gazette printed a full account of the battle of Lexington, providing a colored account of the burning, pillaging, and barbarities charged to the British, while praising the American militia.40 When Congress published the Declaration of Independence on July 6, 1776, it chose to do so in the Philadelphia Evening Post. Founders saw the press as part of the government process. In America’s earliest years, the press served as a force to unify the nation and awaken a common purpose, interest and destiny among the separate colonies, helping to form them into a United States.41 During the debates of what the U.S. government should be, the writers of what would become the current constitution turned to the press to make their case. When Alexander Hamilton, James Madison, and John Jay united to write the Federalist papers, they chose to publish them in The Independent Journal and The Daily Advertiser.42 When the U.S. government was finally established, the new Congress actively included the press in congressional sessions. While state legislative proceedings had always been permitted in the colonies, upon the convening of the first  Congress, a Congressman Burke moved that the representatives of the press should be excluded from the sessions. At a time when taking of notes in the British Parliament was still forbidden, the U.S. Congress quickly rejected this notion of banning the press, never to revive the notion.43 Judging from these actions, it is as if instantly in its first Congress, the United States actively broke from common law attitudes towards the press. Indeed, the U.S. Government was created with the idea that the press should be treated differently than in other nations. Given this history, it should be no surprise that the Supreme Court would put the press on a pedestal, granting it treatment beyond what other common law nations see as necessary.

In the Sullivan decision, the Supreme Court drew on the rhetoric of the founders, specifically James Madison, to explain how the U.S. Constitution provides for a government where absolute sovereignty lies with he people, and their press, rather than with the government. Pointing specifically to Madison, the court explained that the U.S. System is supposed to be “‘altogether different’ from the British form.”44

“‘Is it not natural and necessary, under such different circumstances,’ he asked, ‘that a different degree of freedom in the use of the press should be contemplated?’”45

From the perspective of one of the key authors of the constitution, a new government meant a new attitude towards the press. Madison even foresaw and observed expansion of press freedoms beyond the previous common law standards:

“‘’In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this foundation it yet stands.’”46

For Madison, and the Supreme Court, the right of free public discussion of the actions and activities of public officials is a fundamental principle and inherent character of the American form of government.

In an almost Freudian reaction to events in nation’s origins, scholars have viewed Sullivan as securing the role of the U.S. Constitution protection of free speech in the First Amendment as a refutation of the Sedition Act of 1798. In his analysis of Sullivan, Harry Calvin, Jr. determined that “the Touchstone of the First Amendment has become the abolition of seditious libel and what that implies about the function of free speech on public issues in American democracy.”47 Indeed, the United States experimented with a stricter standard for libel in the form of the Sedition Act, which made it a crime to publish any “false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress, or the President, with intent to defame or bring them, or either of them, into contempt or disrepute.”48 The Act allowed truth as a defense, and provided that the jury was judge for both law and fact. However, despite these qualifications, as the Sullivan court identified, the Act was condemned by both James Madison and Thomas Jefferson as contrary to the standards of the constitution.49 From its founding, the United States had imagined a different standard for its press and for its government.

In contrast, Canada does not have a history that elevates the press to any heightened position. Canadian courts have actively rejected the idea of the press having any greater protection than the rest of the public. As the Canadian court made clear in Arnold v. R:

“The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute law, his privilege is no other and no higher.”50

Indeed, the Canadian press does not have much in the way of judicial recognition that it is anything special or should be treated as such, unlike in the United States. These differing attitudes from political leaders, national history, and the judiciary help explain divergent attitudes between two geographically and culturally similar nations.

B. Comparative government structures

In addition to historical differences in the comparative governments, the actual structure of the governments themselves helps explain different attitudes towards the press. In Canada’s parliamentary system, ministers are directly accountable to the legislature. As part of this system, forty-five minutes of every day that Parliament is in session is reserved for what is know as Question Period. During this period, Members of Parliament may ask any question of any Member of the House.51 Members of opposing parties often use this opportunity to “launch scathing and biased attacks on the government of the day.”52 Under this system, members are protected by absolute immunity from civil liability, and their potential defamatory attacks may be printed by the press under a qualified privilege.53 What Americans may see as partisan bickering is the Canadian press’ source for coverage and commentary. While the American press controls the potential defamations themselves, talk radio for example, the Canadian press may look to Parliament for its material.54 In contrast, the United States republican system of government is built around the separations of powers. Under the Constitution, the President is only obligated, from time to time, to provide Congress with information concerning the State of the Union and recommend measures.55 The President is never required to field questions from Congress. Rather, the President’s communications with the public and Congress are often forged through the press, with carefully staged press conferences and tightly controlled information releases.56 Given this separation of powers and abilities by the branches to control their own messages, journalists play a very important role in the political process. Therefore, as Madison argued, the press in the United States requires a great degree of freedom in order to adequately carry out its crucial role as a check on government.57 Indeed, when one compares the two different checks on government, Question Period in Canada and the press in the United States, both are granted similar privileges. The difference between Canadian and American views is not the amount of protection that the institutional check on the government merits, but rather just who the check on the government is.

C. Ideas of truth and falsity

In addition to different attitudes towards and roles for the press, Canada and the United States also have different perspectives on the consequences of false statements in public dialogue. In Hill, the court rejected the idea that any sort of false statement can help contribute to the goals of a free and democratic society. The court, instead, lists “the search for truth” as a goal of society.58 To the contrary, the United States has recognized that false statements are often unavoidable in a constructive dialogue. Even at its founding, Madison recognized the inevitably of false statements: “Some degree of abuse is inseparable from the proper use of every; and in no instance is this more true than it that of the press.”59  From a philosophical perspective the court in Sullivan recognized that error is inescapable, quoting John Stuart Mill’s On Liberty: “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.”60  Indeed, false statements in argument were viewed by the court as inevitable. However, the Sullivan court accepted false statements not just because they are an inherent part of debate, but also because the line between false and true is often difficult to distinguish.

As the Sullivan court cited from Cantwell v. Connecticut, political debate is often like religious debate, in which no side can prove their own side: “In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor.”61 Indeed, what is true to one man may not be true for another. The Supreme Court inherently recognizes the flexibility of truth and falsity. It should be no surprise that the Sullivan decision was written in 1964. The Civil Rights movement, like the Civil War before it, saw a nation turned against itself. At trial, Sullivan saw a judge who refused to integrate seating, reject the 14th Amendment, and promise to uphold “what man’s justice.”62 In the United States, it is possible for a judge, and a state, to see truth where another state, or the Federal government, sees lies. Given these conflicts, one can understand how the Supreme Court could view truth as a tenuous topic.63

Conclusion

Cultural and geographically, Canada and the United States are extremely close. Judging from its adoption by various nations worldwide, the U.S. actual malice standard for libel cases does not suffer from severe flaws, and has been extremely influential. However, Canada has contemplated and refused to adopt this Sullivan standard. Differing history and government structure helps shine a light on to why these two similar nations would adopt opposing standards.

1 New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 

2 Argentine Supreme Court of Justice 310 Fallos 508 (1987). 

3 Kyo Ho Youm, Impact on Freedom of the Press Abroad, 22 Comm. Law. 12, 12 (2004).

4 Law on Protection Against Defamation of the Federation of Bosnia and Herzegovina, art. 6(4) & (5) (October 2000), quoted in Youm.

5 Constitutional Court of Hungary, Decision 36/1994, on Defamation of Public Officials and Politicians (June 24, 1994), quoted in Youm.

6 Ibid.

7 [1995] A.I.R. India 264 (Oct. 7, 1994), quoted in Yuom.

8 P.L.D. 1996 Lahore 410 (Pakistan), quoted in Yuom.

9 Sullivan, 376 U.S. at 256-57. 

10 Sullivan, 376 U.S. at 257-58.

11 Ibid. at 256. 

12 Ibid at 283. 

13 Charles Tingley, Reputation, Freedom of Expression and the Tort of Defamation in the United States and Canada: A Deceptive Polarity, The Alberta Law Review, 37 Alberta L. Rev. 620, 627 (1999).

14 Ibid. at 627.

15 Sullivan, 376 U.S. at 283. 

16 Tingley at 629. 

17 Tingley at 624. 

18 Tingley at 624.

19 R. Martin, Essentials in Canadian Law — Media Law (Concord, Ont.: Irwin Law, 1997) at 126, 151, quoted in Tingley at 625. 

20 Tingley at 625.

21 R. Martin, “Does Libel Law have a ‘Chilling Effect’ in Canada?” in R. Martin & G.S. Adam, eds., A Sourcebook of Canadian Media Law (Ottawa: Carlton University Press, 1989) 757, quoted in  Tingley at 626. 

22 Tingley at 626. 

23 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

24 M.G. Crawford, The Big Chill (1992) 16:3 Can. Law 14.

25 [1995] 2 S.C.R. 1130

26 [1995] 2 S.C.R. 1130, ¶ 20-27.

27 [1995] 2 S.C.R. 1130, ¶ 53.

28 [1995] 2 S.C.R. 1130, ¶ 74.

29 Ibid. at ¶ 74. 

30 Sullivan, 376 U.S. at 282, citing Barr v. Matteo, 360 U.S. 564, 575 (1959).

31 Barr v. Matteo, 360 U.S. 564, 571 (1959).

32 Sullivan, 376 U.S. at 282-83.

33 [1995] 2 S.C.R. 1130, ¶ 98.

34 Ibid. at ¶ 100.

35 Ibid. at ¶ 101.

36 Ibid. at ¶ 106.

37 Ibid. at ¶ 109.

38 Ibid. at ¶110.

39 Ibid. at ¶130-136.

40 Revolutionary Newspapers, in The Cambridge history of English and American literature: An encyclopedia in eighteen volumes (W.P. Trent, J. Erskine, S.P. Sherman, and C. Van Doren, eds., 1907-21), available at http://www.bartleby.com/226/1201.html

41 Ibid.

42 Reporters Admitted to the Debates in Congress, in The Cambridge history of English and American literature: An encyclopedia in eighteen volumes (W.P. Trent, J. Erskine, S.P. Sherman, and C. Van Doren, eds., 1907-21), available at http://www.bartleby.com/226/1205.html

43 Ibid.

44 Sullivan, 376 U.S. at 274. 

45 Ibid. at 274-275. 

46 Ibid. at 275. 

47 H. Calvin, Jr., “The New York Times Case: A Note on the Central Meaning of the First Amendment” 1964 Sup. Ct. Rev. 191, 209 (1964). 

48 Sullivan at 274. 

49 Ibid at 274.

50 83 L.J.P.C. 299 at 300 (P.C.)

51 M.J. Bryant, “Section 2(b) and Libel Law: Defamatory Statements about Public Officials” 2 Media & Communic. L. Rev. 335, 362. 

52 Tingley at 635.

53 Ibid. at 636. 

54 Ibid. at 636. 

55 U.S. Const. Art. I, §3, cl. 1

56 Bryant at 362. 

57 Tingley at 634.

58 [1995] 2 S.C.R. 1130, ¶ 109

59 4 Elliot’s Debates on the Federal Constitution (1876), p. 571., cited in Sullivan at 271. 

60 Mill, On Liberty (Oxford: Blackwell, 1947), at 15.

61 Cantwell v. Connecticut, 310 U.S. 296, 310 (1940).

62 S. Wasby, “A Transformed Triangle: Court, Congress, and Presidency in Civil Rights” 21:3 Pol’y Stud. J. 565 (1993).

63 It should also be noted that the early 1960s saw the publication of Thomas Kuhn’s The Structure of Scientific Revolutions. This work was a landmark publication that documented how scientific systems become overthrown and previous concepts of scientific truth are replaced with new models. This shows that not just in the courts, but elsewhere in American society, the concept of truth as a tenable concept was increasingly being questioned.