The posts above all assume that the people at CBS were at worst negligent (again, assuming they were wrong, which has not been proven but which I’m just assuming for purposes of the legal analysis). But what if someone — for instance, the forger, or even someone in the media — does lie in a public debate? What would and should happen then, legally?
As I’ve mentioned above, some states do criminalize certain kinds of knowingly false statements in public debate. Also, libel law does allow recovery, including punitive damages, for knowingly or recklessly false defamatory statements about public figures on matters of public concern. (“Recklessness” here refers not to being grossly negligent, but to knowing that the statements are likely false and proceeding in any event without adequate checking — it’s closer to knowledge than to negligence.)
Nonetheless, I think we should be wary of prosecution and even litigation even in such situations. Unfortunately, the judicial process is a highly imperfect means of getting at the truth, especially on politically charged questions. Historical matters are best decided, I think, in public debate (for all its flaws) rather than in a courtroom.
Obviously, false statements in political campaigns are harmful to the voters and to our political system. But prosecution seems to me to be a remedy that’s worse than the disease — especially since of course it won’t just be the obvious liars who are prosecuted, but potentially anyone who a prosecutor (who often himself has political alliances and political ambitions) thinks is a liar. We all know how often charges of lying are batted about over what ends up being an honest disagreement. And if such prosecutions became routine, lots of people would understandably be deterred from saying even things that are true (or that are opinions).
In some limited situations, where there’s a smoking gun — and there may be classes of cases like that, for instance when people misdescribe their own military record, see, e.g., Pittsburgh Post-Gazette, Dec. 17, 1996, at A10 (discussing prosecution of former Rep. Wes Cooley for supposedly lying to Oregon voters in a ballet pamphlet about his Korean War experience), or when someone forges a document — the arguments against criminal prosecution might be weaker. Perhaps one could come up with a crisp legal principle, or a crisp political norm for prosecutorial behavior, that would limit prosecutions to such open-and-shut cases. But I’m not sure that this is so, and I wouldn’t like the norms to evolve towards using prosecutions as a routine tool whenever prosecutors think that some candidate is lying.
The case for allowing libel lawsuits is stronger, because in addition to the harm to the voters and the political process, there could also be harm to a particular person’s reputation and livelihood. Moreover, such lawsuits are certainly firmly historically rooted, and New York Times v. Sullivan, for all its concern about protecting speech both against wrongful punishment and against deterrence by the fear of wrongful punishment, nonetheless preserved such lawsuits in cases where the plaintiff has evidence that the defendant was knowingly lying. (Three dissenters, Justices Black, Douglas, and Goldberg would have completely eliminated libel lawsuits over statements related to matters of public concern, precisely because of a fear that the judicial process will often err in such cases; but the majority, including Justice Brennan and Chief Justice Warren, disagreed.) I can’t say that such lawsuits are, or even should be, unconstitutional. Still, I’m not wild about them, because I don’t have great confidence in the abilities of juries to decide historical questions.
Finally, note that historically sitting government officials (especially high officials) don’t file libel lawsuits even when they think someone has been lying about them. It’s often seen as beneath the person’s dignity. It’s likely to focus the public’s attention on the false charges. It’s likely to waste a lot of the official’s time and attention. And while it may let the official get access to the defendant news organization’s internal documents, and force the reporters and managers to testify about what they knew when — something that might well be quite embarrassing to the news organization, and that might strengthen the official’s case — it also lets the news organization get discovery against the official. The organization might, for instance, require the official to give depositions about other matters related to the controversy (since that would be relevant to whether the charges were substantially accurate even if some aspects of them were clearly literally false), a prospect that many officials might not relish.
So the bottom line: For all these reasons, I think that public criticism, for all its flaws, is a much better remedy for media negligence and even for media, candidate, or commentator lies than is either civil litigation or criminal prosecution.
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