Nick Clegg has finally remarked that UK libel laws have to change from “an international laughing stock to an international blueprint.” He’s right, of course: the UK has a thriving industry that sues to protect the reputations of disreputable people. Unethical corporations, too, use the UK courts to smother revelation of activities that might well discourage clients or creditors from doing business with them.
In revising the law, Clegg should certainly make it much harder, if not impossible to use the UK courts to harass publications elsewhere in the world. He should also require plaintiffs to prove that they were libeled, rather than putting the first burden of proof on defendants.
On the other hand, he might consider strengthening provisions against calls for violence.
This debate is timely, in view of Sarah Palin's reactions to the Loughner massacre in Arizona. Everyone knows by now that her Facebook page had featured an image where the home districts of her political enemies, were marked with crosshairs and the slogan “IT’S TIME TO TAKE A STAND” (sic). Her site also included the slogan “don’t retreat, RELOAD.” (The image and slogans are no longer on the page.)
One of the districts on her map had elected Congresswoman Gabrielle Giffords, who was among the victims of a shooter on January 8. Here is the image:
Palin has denounced the “reprehensible” accusation that this image may have encouraged the shooter:
“Acts of monstrous criminality… begin and end with the criminals who commit them, not collectively with all the citizens of a state, not with those who listen to talk radio, not with maps of swing districts used by both sides of the aisle, not with law-abiding citizens who respectfully exercise their First Amendment rights at campaign rallies.”
I don’t agree with key parts of that statement, and one reason is this image, which comes from a website called christiangallery.com. There is a lot behind it, so please look:
According to Whois, the owner of this site is Pathway Communications, domiciled at the address of its administrative contact (and chief author), Neal Horsley. He has played a leading part in anti-abortion militancy for nearly two decades, not least as founder of the American Coalition of Life Activists (ACLA). It is fair to call Horsley a leading theorist of anti-abortion violence. Here is his take on the murder of physician George Tiller by anti-abortionist Scott Roeder:
“the pro-life movement incites people to kill abortionists because the pro-life leaders and the pro-life movement--all together--have been so utterly ineffectual as to leave no alternative to any person aroused by the specter of legalized abortion like Scott Roeder was aroused. Is this an apology for Scott Roeder? Well, duh! Of course it is.”
Horsley was one of several anti-abortion activists who used “wanted posters” to "target" pro-choice physicians beginning in the early 1990s. Those posters included personal information that made the targets easier to find. David Gunn, George Patterson, and John Britton were assassinated after they appeared on such posters. The U.S. 9th Circuit Court of Appeals described the content:
ACLA… drafted and circulated a ‘Contract on the Abortion Industry,’ having deliberately chosen that language to allude to mafia hit contracts…. ACLA’s ‘Deadly Dozen poster is captioned "GUILTY" at the top…beneath which in slightly smaller print the poster indicates "OF CRIMES AGAINST HUMANITY."… Under the heading "THE DEADLY DOZEN," the poster identifies thirteen doctors….
When the Internet came along, Horsley ported such content to a site called "The Nuremberg Files”. It has been shut down, but it was an unforgettable sight; I stumbled across it in 1997, when Horsley put it up, and recalled it immediately when I saw Palin’s poster. In 1998 Barnett Slepian, a doctor who performed abortions, was assassinated by anti-abortion activist James Kopp after Slepian was labeled a “baby butcher” in a wanted poster on the Nuremberg Files.
The targets of these attentions fought back, legally. Planned Parenthood and others sued the ACLA for violating their rights under a Federal law, the Freedom of Access to Clinic Entrances (FACE) act, which was specifically designed to protect legal abortion providers. At the initial trial, a Federal district court judge instructed the jury that the defendants could be held liable only if their speech constituted “true threats.” The jury condemned the ACLA to pay $107 million in damages, and the judge then issued an order forbidding the ACLA to keep publishing its wanted posters.
But the ACLA appealed on the grounds that its posters were legitimate free speech under the First Amendment. In 2001, a three-judge panel of the 9th US Circuit Court of Appeals unanimously agreed. Wrote Circuit Judge Alex Kozinski:
“If defendants threatened to commit violent acts, by working alone or with others, then their statements could properly support the District Court’s verdict. But if their statements merely encouraged unrelated terrorists, then their words are protected by the First Amendment."
Then 9/11 changed the American view of the consequences calls for violence may bring. In May 2002, the full 9th Circuit court overruled the previous judgment. The Nuremberg Files, it wrote, were not just “political hyperbole” (or, to paraphrase Palin, they were not examples of how citizens “respectfully exercise their First Amendment rights.”) They were a “true threat” that created a clear, simple pattern: “poster followed by murder.” And that was no longer legal free speech.
A near-decade later, coincidentally or not, Palin’s target poster was followed by an assassination attempt that left bystanders dead. We don’t know if Jared Loughner, the shooter, had ever seen her website. In one way, it doesn’t matter. Whether he did or not, he had the opportunity, and he might then have interpreted her map as a blueprint for action, as the 9th Circuit court thought the "wanted" posters had been. The issue here, therefore, is whether Mrs. Palin considers the possible consequences of her words and acts.
So far, the answer is no. The claims of her assistants that the crosshairs in her image came from “surveyor” tools is simply insulting: Mrs. Palin’s page still contains numerous posts about hunting, a central feature of her public image. And as David Weigel remarked in Slate, what surveyor tools require reloading? She has built an image as a straight shooter, literally, and she cannot complain if it now seems bent.
Nor can she claim that no one in her entourage could have informed her about the grisly precedents of her graphic tastes. Palin’s counsellors include Kim Daniels, an attorney who was identified by Justin Elliott of TPMMuckraker as her “personal domestic policy czar.” Be that as it may, Daniels certainly worked at the Thomas More Center for Law and Justice, who are listed among the ACLA’s advocates before the 9th Circuit. I don’t know if Daniels participated in that landmark case, but if she never heard of it during her time at the Center, she should seek help for her curiosity deficit.
This affair is strong evidence that Mrs. Palin has no claim to be a major political figure in a modern democracy. (Does anyone believe she lacks that intention? Does Fox Television, which hired her as a “commentator” a year ago?) Either she knew what she was doing perfectly well, and understood that in the USA, painting a bullseye on your adversaries can get them killed, or she and her staff were clueless and careless. In the former case she appears callously indifferent to the fate of citizens outside her camp. In the latter case she seems too heedless of the potential results of her words, even when there are notorious precedents, to claim fitness as a national leader, let alone a world leader.
A leader, precisely, is someone whose communication may have material consequences. Would I mind if Nick Clegg made calls for violence more easily actionable by its real or potential victims? No. I do mind that my remarks above might be interpreted by a UK lawyer as maliciously savaging someone who is now a “private” citizen. Palin has already declared, bizarrely, that journalists who question her reasoning are manufacturing a “blood libel” – a reference to the ancient, grotesque accusation that Jews bake matzohs with the blood of children. But the act of “monstrous criminality” in Arizona did not begin with the shooter, and may not end with him. Whether she likes it or not, whether she cares to admit it or not, Palin’s target map alludes to that awful history. That was a dreadful mistake, and she has not yet acknowledged it.
To bring this back where we began, we all need to stop protecting people who hurt anyone who disagrees with them. Right now, the UK’s libel law is doing just that, and these are exactly the wrong limits on free speech. It’s not alone, but it’s a country that matters much more than most to the history of democracy. So good luck, Mr. Clegg. This is one you have to win for all of us.