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CounterPunch
March 22,
2003
Ducking the First Amendment
Richard
Perle's Planned Lawsuit Against Seymour Hersh
By JOANNE MARINER
Seymour Hersh, the celebrated investigative journalist,
is no stranger to the pressures of reporting on controversial
issues during wartime. After the verdict was handed down in the
criminal prosecution of the My Lai massacre, a story he broke
during the Vietnam War, he felt so threatened by angry soldiers
that he went into hiding.
It is a telling sign of the times that
Hersh is once again under attack for his reporting. Last week,
just as Hersh was giving a speech in which he publicly warned
that journalists were frightened and intimidated, senior Pentagon
advisor Richard Perle was telling the New York Sun that
he planned to file suit against Hersh for libel.
Another sign of the times (or perhaps
just a hallmark of the Bush Administration): Perle has a strategy
for evading constitutional protections against this action. Although
Perle is an American, Hersh is an American, and the magazine
in which Hersh printed his allegedly defamatory article is published
in the United States, Perle told the Sun that he would
file suit in Britain.
Known as the "libel capital of the
world" because of its plaintiff-friendly rules on defamation,
Britain has nothing remotely comparable to the First Amendment's
protections for freedom of the press. In the U.S. courts, Perle
would have to prove that Hersh's statements were false and that
they were made with "actual malice," making it likely
that his suit would be dismissed in the early stages of litigation.
In England, where the law establishes a rebuttable presumption
that a defamatory statement is false, Perle stands a far better
chance of dragging Hersh into a long and costly court battle.
War and Lunch
Perle, a former assistant secretary of
defense in the Reagan administration, is currently the chairman
of the influential Defense Policy Board, an advisory panel to
the Defense Department. He is also a businessman, serving as
managing partner of a private venture capital firm called Trireme
Partners that invests primarily in companies that deal in goods
and services related to national security.
Last January, as reported in an article
that Hersh published in The New Yorker, Perle may have
inappropriately mixed his public and private roles. The article
states that Perle met notorious Saudi arms trader Adnan Khashoggi
and another Saudi businessman for lunch on January 3 in the French
city of Marseilles. On the menu was a discussion of the upcoming
war and, according to the two Saudis, whom Hersh interviewed,
the opportunities for investment in Perle's company.
Hersh's article does not directly accuse
Perle of wrongdoing. What it does is note that Perle's dual roles
as unpaid Pentagon adviser and well-paid venture capitalist raise
the possibility of conflicts of interest. It also suggests that
Perle has not been overly scrupulous in trying to avoid the appearance
of such conflicts.
Perle, who has been credited as the intellectual
force behind the Iraq war, insists that his hawkish views are
not up for sale. While Hersh does not challenge him on this point,
he suggests that Perle should take greater care to insulate his
foreign policy connections from his financial dealings.
Journalists and Terrorists
Hersh's New Yorker article was
published in early March, and Perle's response was swift and
vicious. Questioned on CNN on March 9 about allegations made
in the article, Perle attacked Hersh's integrity as a journalist.
Hersh was, Perle asserted, "the closest thing American
journalism has to a terrorist."
The following day, in an interview on
the MSNBC show "Hardball," Perle was questioned about
whether he planned to go to court in response to the article.
"If any reasonable lawyer tells me there's a prospect of
winning a case, I would be delighted to sue Sy Hersh," he
announced.
No reasonable lawyer would advise a suit,
given the First Amendment's robust protections on freedom of
speech. But, days later, when Perle announced that he would
indeed be filing suit for libel, he added an unexpected twist
to the dispute: he said that the case would be filed in Britain.
Britain and the United
States
From the standpoint of legal strategy,
Perle's forum shopping preferences are understandable. (And
because The New Yorker is distributed in Britain, as well
as available there on the internet, they are legally available.)
If Perle were to bring suit in the United States, he would face
daunting obstacles. First, given his prominent role in shaping
foreign policy, he would be considered a public figure. Under
the more strigent First Amendment protections applicable to libel
suits against public figures, Perle would have the burden of
proving that Hersh made the allegedly defamatory statements with
actual malice.
To prove actual malice, Perle would have
to show that Hersh knew that the statements were false or that
he had a reckless disregard for their truth or falsity. Under
these standards, it is likely that the suit would be dismissed
on a motion for summary judgment.
Interviewed by the Washington Post
last week, Hersh noted that Perle has yet to specify a single
inaccuracy in his article. Yet one of the beauties of British
libel law, from the plaintiff's perspective, is that the failure
to show falsity is no bar to a successful lawsuit.
Under British law, any published statements
that negatively affect a person's reputation are presumed to
be false. In contrast to the American constitutional rule, the
burden is on the defendant to prove that the statements are true.
Even more importantly, in terms of the viability of the suit,
British libel law does not distinguish between private persons
and public figures, and extends no special protection to criticisms
directed at members of the latter category.
Because it so clearly favors plaintiffs,
English libel law has drawn the criticism of the European Court
of Human Rights. More to the point, from Perle's perspective,
is that U.S. courts have frequently refused to enforce English
libel judgments against American defendants, opposing them on
public policy grounds.
In a 1992 case, a New York state court
set out the reasoning behind such a refusal. The First Amendment's
protections on speech and the press, the court explained, "would
be seriously jeopardized by the entry of foreign libel judgments
granted pursuant to standards deemed appropriate in England but
considered antithetical to the protections afforded the press
by the U.S. Constitution."
Juries and War
Although Perle's planned lawsuit would
stand a much greater chance of success were it to be filed in
Britain rather than in the United States, it is still a gamble.
The British courts, which have shown a recent impatience with
such overt forum-shopping strategies, could refuse to hear the
case on the ground that U.S. courts would provide a more suitable
forum.
Moreover, in spite of the country's pro-plaintiff
libel laws, the case could still easily lose on the merits. As
demonstrated by a failed suit brought recently by revisionist
historian David Irving against an author who he claimed had libeled
him, an offensive litigation strategy can backfire dramatically.
And as the losing party under British rules of litigation, Perle
would be responsible for paying Hersh's legal costs.
This is certainly not the most propitious
moment for Perle to offer up his credibility to a British jury.
A majority of Britons are opposed to war on Iraq and suspicious
of American motives for seeking to enter such a war. According
to the latest polls, only 19 percent of the British public would
back British participation in an attack on Iraq without a new
UN resolution. Perle, the American hawk personified, would likely
face a skeptical and unsympathetic audience.
But whatever the outcome of the suit,
Perle's threat to file it has already sent a chilling message
to the American press. The timing of that message is telling.
The impending war, already the most divisive U.S. military intervention
since Vietnam, will place heavy demands on journalists' skill
and integrity.
With courageous investigative reporting
more than ever necessary, it is no time to subject American journalists
to British rules.
Joanne Mariner
is a human rights lawyer based in New York. An earlier version
of this article appeared in FindLaw's Writ.
She can be reached at: mariner@counterpunch.org.
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