The following is an adaptation from, and an updating of, a talk given by the writer to an audience of international lawyers two years ago. It is instanced by re-energized discussions of a bill decriminalizing libel; it is retitled from “Libel: beyond the law.” It comes in two parts.
First Part: Libel: Beyond decriminalization
Second and last part
INDEED, BEFORE there ought to be a law, or any sense of justice, there ought to have been, first, philosophy and idealism, the essential standards. Alas, there’s only the law of libel, which, thus unprecedented, has actually got in the way of justice, working lopsidedly in favor of people who possess wealth and power exclusive to their class in addition yet to all the freedoms that everyone else has – people who, in other words, benefit from a perversion of the basic sense of democratic justice by managing to have more in both life and law than everybody else – typically, these are government officials, politicians, capitalists, and everyone else they choose to lend their wherewithal to. The law of libel has become for them more than just a refuge from the scrutiny and criticism they only justly deserve given the implications of their actions and decisions on the public interest; in fact it works as a weapon against those who dare scrutinize and criticize them.
Naturally, their direct victims – those who actually go to jail or pay the fines or live under such threats constantly – are the men and women assigned by law and tradition to watch them – the members of the press. And what have they got as their resource for their watchdog job? Only words, a resource not even theirs to use in any exclusive way, indeed a resource available to their own adversaries.
Circumscribed within those terms – strictly verbal, one’s word set against another’s – the contest should be mature enough, civilized enough, fair enough. But with the insinuation of libel, it becomes decidedly skewed. Which seems being conceded now, as evidenced by a trend toward the decriminalization of libel.
Anyway, why stop at decriminalization? Why simply replace the old sword with – what? A smaller one? A duller one? That’s driving a hypocritical bargain over no less than the centerpiece freedom in a democracy – the freedom of expression. That is, essentially, no less farcical than the old deal – it’s still libel: it still clings to the illusion of reputation, it still chases after the ghost of malice, and it still ends up punishing real people – news-people.
In other words, it’s still a witch-hunt.
It is, of course, naïve to expect of lawmakers such grand sense of magnanimity as will be required for them to come around and abolish, on their own initiative and power, this repressive institution of libel, thus surrendering the undue advantage accruing to them under it.
Freedom versus power is a zero-sum game. It calls for a fight.