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Defamation Liability for Disagreements About Political Labeling:

The Canadian case I note below reminded me of U.S. v. Cooper, an 1800 case in which Cooper was convicted under the Sedition Act of libeling then-President Adams.

On its face, the Sedition Act was (as its defenders pointed out) a considerable improvement over the English law of seditious libel; it purported to punish only false statements, and ones that were "malicious" to boot. Even today, factually false statements about particular people (even political leaders) said with knowledge of their falsehood may be punished, potentially even criminally. But in practice the Act ended up being used to punish opinions that judges disagreed with, and not just false factual allegations. Cooper offers a great example. Here's one part of Cooper's allegedly libelous statement: "Our credit was not yet reduced so low as to borrow money at eight per cent. in time of peace, while the unnecessary violence of official expressions might justly have provoked a war." Here's the relevant part of Justice Chase's instruction to the jury (at the time, judges were expected to express their opinions about the facts in the course of their instructions, though Chase seems to have gone pretty far even by the standards of the time):

The [defendant] states that, under the auspices of the president, "our credit is so low that we are obliged to borrow money at eight per cent. in time of peace." I cannot suppress my feelings at this gross attack upon the president.... Are we now in time of peace? Is there no war? No hostilities with France? Has she not captured our vessels and plundered us of our property to the amount of millions? Has not the intercourse been prohibited with her? Have we not armed our vessels to defend ourselves, and have we not captured several of her vessels of war?

Although no formal declaration of war has been made, is it not notorious that actual hostilities have taken place? And is this, then, a time of peace? The very expense incurred, which rendered a loan necessary, was in consequence of the conduct of France. The [defendant], therefore, has published an untruth, knowing it to be an untruth.

Whether the time of the "quasi-war" with France was or was not a "time of peace" is not a question of fact; it's a question of opinion -- of how you should define "time of peace" -- and Cooper's readers would have recognized it as such. Even when libel law may properly punish factual falsehoods, it shouldn't let judges or juries proclaim some political characterization of the facts (we're in a time of peace because no war has been declared, even though there are sporadic hostilities; someone who uses lawful means for restricting speech is an enemy of free speech) to be "false."

Likewise, consider another part of Cooper's statement, "Nor were we yet saddled with the expense of a permanent navy, or threatened, under his auspices, with the existence of a standing army." Here's Justice Chase's instruction related to this point:

[T]o assert, as [defendant] has done, that we have a standing army in this country, betrays the most egregious ignorance, or the most wilful intentions to deceive the public.

We have two descriptions of armies in this country -- we have an army which is generally called the Western army, enlisted for five years only -- can this be a standing army? Who raises them? Congress. Who pays them? The people. We have also another army, called the provisional army, which is enlisted during the existence of the war with France -- neither of these can, with any propriety, be called a standing army.

In fact, we cannot have a standing army in this country, the constitution having expressly declared that no appropriation shall be made for the support of an army longer than two years. Therefore, as congress may appropriate money for the support of the army annually, and are obliged to do it only for two years, there can be no standing army in this country until the constitution is first destroyed.

There is no subject on which the people of America feel more alarm, than the establishment of a standing army. Once persuade them that the government is attempting to promote such a measure, and you destroy their confidence in the government. Therefore, to say, that under the auspices of the president, we were saddled with a standing army, was directly calculated to bring him into contempt with the people, and excite their hatred against him.... This publication is evidently intended to mislead the ignorant, and inflame their minds against the president, and to influence their votes on the next election....

Again, the alleged falsehood wasn't related to specific facts (e.g., Adams was paid such-and-such a bribe by so-and-so to authorize certain military expenditures) -- it had to do with the characterization of a certain army as a "standing army." Chase thought this political term ought to be used to mean only certain kinds of forces, just as he thought "time of peace" ought to be used to mean only certain situations; Cooper disagreed. That's a difference of opinion about how to apply political labels -- but Chase's interpretation of the Sedition Act treated the matter as involving a factual falsehood, which could be legally punished.

That's a big potential problem with libel law, a problem that American law has in recent decades has largely avoided. (There are other problems with American libel law, but I set them aside for now.) Unfortunately, Canadian law seems to be slipping into this problem, when criticisms of anti-"hate-speech" activists are involved.

Related Posts (on one page):

  1. Defamation Liability for Disagreements About Political Labeling:
  2. Calling Speech Restrictors "Enemies of Free Speech" Can Now Lead to Legal Liability in Canada:
Bored Lawyer:
A bit off topic, but this jumped out at me:


There is no subject on which the people of America feel more alarm, than the establishment of a standing army. Once persuade them that the government is attempting to promote such a measure, and you destroy their confidence in the government.


My, how times have changed.
11.27.2007 2:12pm
Just Saying:
Bored Lawyer-- It's primarily a reflection of the advancements in military technology. If it was still feasible for citizens to form an effective militia as the need arose, there still might be opposition to a standing army. In a world of stealth bombers, tanks, and aircraft carriers, that's not exactly feasible. I don't think it's so much a matter of changing ideals as changing realities.
11.27.2007 2:43pm
loki13 (mail):
This jumped out at me:


Has she not captured our vessels and plundered us of our property to the amount of millions? Has not the intercourse been prohibited with her?


Yeah, if someone had stolen my car and my stuff, I would definitely *not* hit that. Do not want.

Um... I really should be studying right now. And not double (or single) entendre-ing Chase's words.
11.27.2007 4:08pm
Duffy Pratt (mail):
I always thought a fact was a statement that a trial judge didn't want the appellate court to review.
11.27.2007 4:10pm
non-native speaker:
Title: "political labeling". :-)
11.27.2007 4:42pm
Respondent:
Why is it that the supposedly more progressive Canada has so many instances where it protects rights far less than the U.S.? Not only free speech, but the routine refusal to suppress illegally seized evidence on the ground that admitting the evidence wouldn't "bring the administration of justice into disrepute" (whatever the hell that means), frequent judicial overturning of acquittals because the judge made a defendant friendly mistake in charging the jury, excluding evidence, etc. (I spent the last two nights perusing thru recent Canadian Supreme Court desicions and I was shocked to see that about 20% of the criminal ones seem to be rulings overturning acquittals- what happened to the age old British protection of double jeopardy, for crying out loud?). Not to mention the "notwithstanding clause" that allows Parliament to make any unconstitutional rule it want's so long as it specifies that the law is being enacted "notwithstanding" its unconstitutionality.

Hopefully someone who knows Candada better thsn I do can explain this curious phenomenon.
11.27.2007 11:56pm
Respondent:
Why is it that the supposedly more progressive Canada has so many instances where it protects rights far less than the U.S.? Not only free speech, but the routine refusal to suppress illegally seized evidence on the ground that admitting the evidence wouldn't "bring the administration of justice into disrepute" (whatever the hell that means), frequent judicial overturning of acquittals because the judge made a defendant friendly mistake in charging the jury, excluding evidence, etc. (I spent the last two nights perusing thru recent Canadian Supreme Court desicions and I was shocked to see that about 20% of the criminal ones seem to be rulings overturning acquittals- what happened to the age old British protection of double jeopardy, for crying out loud?). Not to mention the "notwithstanding clause" that allows Parliament to make any unconstitutional rule it want's so long as it specifies that the law is being enacted "notwithstanding" its unconstitutionality.

Hopefully someone who knows Candada better thsn I do can explain this curious phenomenon.
11.27.2007 11:57pm
Respondent:
Sorry for the duplicate posts- I was just trying to add a hyperlink. Also, in the last sentence- Candada--> Canada, and thsn--> than. Should have hit the "preview" button.
11.27.2007 11:59pm
BruceM (mail) (www):
Wow, talk about a "comment on the weight of the evidence."
11.28.2007 12:08am
NickM (mail) (www):
It's OT for this thread ... [The rest of the comment was deleted because it was indeed off-topic for this thread -- a largely unrelated attack on another commenter, whose comments I incidentally have tried to rein in precisely because they're often off-topic. -EV]
11.28.2007 4:04am
neurodoc:
France: our ally when we broke away from King George III's England; Lafayette; the French Revolution inspired by the American one; liberte, fraternite, equalite; the stirring Marseille; the French Resistance playing so great a role in the defeat of the Nazis...and more that I have learned over the years about the French from the old movies. What is this stuff about some "quasi-war" in which the Frogs did us as much harm as the notorious Barbary pirates? What next, that the French weren't so helpful in defeating the Nazis, that many of them, and their Vichy government, actively collaborated with them in their genocide of Jews?

Yeah, anyone who says it wasn't the way the movies tell it surely can't be right. (If it were otherwise, I would have to spend more time reading history and learning things I didn't know, like that there was something like a quasi-war with our never failing allies the French, and throwing out that which I thought I did know. That would be a huge undertaking. And the movies are generally more fun and far less taxing.)

But I really do enjoy and benefit from the history lessons that come folded into many of the VC's posts.
11.29.2007 2:02pm