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Toward "hired gun" control.

Preparing a book of my most severe essays, Crimes of Culture, has me thinking about libel. Since the word means "a false statement that damages a person's reputation," no writer respectful of the truth intrinsic in scrupulous documentation should worry about libel suits.

The principal objection to them is that the liberal secular state should not be in the business of establishing truth and falsity; that is strictly for theocracies and other dictatorships. In that case, libel should be considered a legal fiction, which is to say that it doesn't exist except within a system of laws conducive to state-based abuse.

Consider as well that there is no such thing as defamation, which means undermining someone's reputation. There are only people publicly lacking sufficient intelligence or self-respect to reply in kind. Criticism is damaging only if the recipient allows it to be. If someone says something disagreeable about you, you are certainly welcome to reply with equally strong words. Should you refuse to do so, the costs of silence are wholly your responsibility.

On the other hand, should your reputation be right and your critic wrong, your opinion will survive and your critic will be self-deprecated. The fact that someone might have a stronger voice--say, because he or she is an established writer or because the periodical publishing the statement had a wide circulation--is no excuse for any reluctance to answer in kind. Such circumstantial inequities are just as inevitable in a free society as unequal economic opportunities.

In my experience, individuals criticized in public print, especially in books (rather than newspapers), knew that they were doing something wrong and that their wrongdoings would eventually be exposed. To suggest otherwise is to imply that they are irredeemably stupid or morally retrograde. I cannot think of any recently alleged "libel" that was not at least somewhat true, regardless of what was decided in court.

Furthermore, in all cases, the complainants focused upon themselves public attention that was probably more damaging than the initial accusation could have been. Playwright Lillian Hellman reminded everyone that she was indeed a fabricator, while no network ever again hired Carol Burnett for regular appearances-even though she won her case. In a just world, it would be commonly acknowledged that people initiating libel suits wish by that fact alone to cause more damage to themselves than could putatively be blamed on anyone else. Indeed, to say that such damage is not desired is to deprecate the litigant's character or sanity, perhaps justifiably. (Just imagine a loser using such an insanity defense to avoid subsequent financial responsibility.

Defamation suits, don't forget, are strictly for the rich; for if litigious petitioners lose, they are responsible for paying not only their own lawyers but the defense lawyers and court costs as well. The fact that defamation suits can be so costly accounts for why, when you write something critical of someone, the first question your publisher asks is not whether or not the charge can be substantiated but whether or not the alleged offender is rich--which is to say whether he or she can afford to lose a lot of money in exchange for pretenses of intimidation.

Since--such suits are rarely won, especially nowadays, only the rich can afford them, which is another way of saying that anyone--male or female--who initiates a defamation suit, especially of a visible critic, wants ipso facto not only to display greater wealth but to be known as a Rich Bastard--to have his or her name forever associated with that label, much as prostitutes are caned whores long after they've done tricks. (Don't discount the advantages of such a moniker in, say, attracting a certain class of literary groupies or lone cultural psychotics.

The real function of such suits is wasting writers' time--to keep them away from their primary work. Given this truth, consider that the litigant should be responsible for fair compensation of professional time lost. Assuming a rate of $50 per hour for a writer's time, the court could then rule that, if 200 hours of a writer's time were wasted, then the debt would automatically be $10,000. If 2,000 hours, then $100,000. (Consider this rate cheap, as plumbers charge more per hour, at least in New York City.

If this principle is acceptable, it would be wise to establish in advance that an avid litigant can pay such penalties and thus that a reasonable amount of money be put in escrow before any suit can begin, simply because we an know that collecting debts from moneyed dead, beats, such as negligent absentee fathers, is as much a social problem today as street thuggery (and morally similar in its arrogant contempt for the law). This principle ought to be acceptable to litigants, because nothing is more dubious than a rich person who does not put his or her money where his or her mouth is. Need I suggest that any writer inadvertently chosen to become the test case for these new rules is guaranteed professional immortality. (Baseball player Curt Flood's misfortune was that he challenged the rules in a game in which, unlike writing, careers necessarily terminate prematurely.)

Precisely because libel suits can be so expensive, there are, needless to say, semi-scrupulous lawyers who specialize in conning rich people into initiating them. All those favoring the "redistribution of wealth" should applaud such efforts. It is easy to suspect the existence of a provocateur behind the most comic current libel case, in which the British arm of McDonald's sued two impoverished environmental activists for saying in a six-page leaflet that the multinational destroyed rainforests, abused workers, and caused health problems. This London trial, begun in early 1994, lasted well into 1995, with the environmentalists acting as their own lawyers. Meanwhile, McDonald's has suffered bad publicity and protests at its stores, in addition to lawyers' fees. According to the Wall Street Journal, Acknowledging that Mr. Morris and Ms. Steele are broke, McDonald's isn't seeking damages or even court costs. It only wants the judge to say the leaflet's statements are false." McDonald's has reportedly offered to "settle" the case if only the environmentalists (no one else) would admit the charges are false--without success. Hung on its own arrogance, along with its susceptability to "aggressive" lawyers, McDonald's is left to dangle embarrassingly in the wind.

On further thought, consider that so-called defamation suits simply represent bullies wishing to accomplish with "hired gun" something (usually a silencing) that could not be done without them--no more, no less. It is obvious that anyone initiating a libel suit, anyone so desperately desiring assault weaponry, is courting the ignominy that is generally accorded bullies. And those wishing-to leverage state power over free thought become the best arguments for "hired gun" control.

Richard Kostelanetz has published over 50 books about contemporary literature and the arts.
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Title Annotation:libel and defamation suits
Author:Kostelanetz, Richard
Publication:The Humanist
Article Type:Column
Date:May 1, 1996
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