From: sbharris@ix.netcom.com(Steven B. Harris)
Newsgroups: sci.med
Subject: Re: Mouth numbness and idiot boy Stevie.
Date: 5 Jun 1999 00:38:29 GMT

In <7j8td2$isi$1@bgtnsc03.worldnet.att.net> "mjdgdc"
<mjdgdc@worldnet.att.net> writes:

>Bret Wood wrote in message <3757DBAE.C4029ACF@cs.uoregon.edu>...
>
>>I'm pretty sure you have to prove malice in order to win a defamation
>>suit if you are a public figure.
>
>I believe that you are correct, although I am not an attorney. The phrase
>"absence of malice" comes to mind (as well as being the title of a movie
>along similar themes). But does malice exist in a newsgroup when someone
>makes a false accusation of a very inflammatory nature just to be a jerk?
>Does belligerence constitute malice? I understand that malice usually
>requires an intent to harm.
>
>The point here is that while heated debate, and even name-calling, is
>fair game in a newsgroup, under no circumstance should false defaming
>statements be tolerated. If Dr. Harris is letting it slide, he's a more
>noble and tolerant man than I.
>
>
>Jon Garzillo DC


   No, just a lazier one.  But that can always change with the level of
irritation.

   I think that absense of malice is a phrase meant to apply to the
media, where publication of facts which would tend to hurt reputations
are more or less presumed to be without malicious intent unless there
is evidence to the contrary.  So it's tougher, though not impossible,
to sue them for libel successfully.  Not so with the desktop
publication of your neighbor, handed out as leaflets on the corner,
which besmirches your reputation.

From: sbharris@ix.netcom.com(Steven B. Harris)
Newsgroups: sci.med
Subject: Re: Mouth numbness and idiot boy Stevie.
Date: 5 Jun 1999 22:50:24 GMT

In <7jb7pk$mo6$2@bgtnsc02.worldnet.att.net> "mjdgdc"
<mjdgdc@worldnet.att.net> writes:

>Kurt Ullman wrote in message
><7ja357$7dv$2@oak.prod.itd.earthlink.net>...
>>In article <7j9ri5$6d2@sjx-ixn6.ix.netcom.com>,
>>sbharris@ix.netcom.com(Steven
>>B. Harris) wrote:
>>
>>> I think that absense of malice is a phrase meant to apply to the
>>> media, where publication of facts which would tend to hurt reputations
>>> are more or less presumed to be without malicious intent unless there
>>> is evidence to the contrary. So it's tougher, though not impossible,
>>> to sue them for libel successfully. Not so with the desktop
>>> publication of your neighbor, handed out as leaflets on the corner,
>>> which besmirches your reputation.
>>
>>
>>        The law (which decends from Sullivan v New York Times for
>>those of you playing at home) makes no differentiation between the NYT
>>and your neighbor's leaflets. The distinction is between a public and
>>non-public figure. The standard is reckless disregard for the truth.



    Comment:  In a sense you are correct, and in a sense not.

    The "law" in this case is case law, and what it applies to in
addition to the narrow decission it applied when it was made, is never
known for sure, until the count applies it to some other situation.
Sullivan was a police commissioner who sued the NY times for running a
civil rights protest letter as a paid advertisement.  That letter had
some things which were critical of Alabama police in general, mixed in
which a lot of other stuff which didn't clearly differentiate who was
guilty of doing bad things to Martin Luther King & Co.  An Alabama
lower court had awarded Sullivan and others half a million bucks for
being defamed.  In overturning the case in 1964 the Supreme Court said
a lot of things about how important freedom of the press is, and how it
needs to be left free to criticize goverment without every such case
transformed into a personal case in which the official in charge of the
function of government being criticised, takes such criticism
personally.  How any of this applies to your "published" criticism of
your neighbor is not at all clear.  Publication is telling a third
party who doesn't have a legitimate interest (lots of stuff on this).
Malice is defined by the court as lying (knowing utterance of
falsehoods) or reckless disregard for truth, which doesn't just mean
that you the means to find out the truth was known to you but you
didn't do the historical search.  You have to publish something nobody
would reasonably believe without checking, and claim you did believe it
(so it wasn't a lie) but did not check it (so you were unreasonable).
That standard may sometimes protect individuals, but it was
specifically designed to protect the media, which simply don't have
time to do the historical research but are in the business of daily
reporting news which will harm people's reputations and which will not
be factual.

   Lower courts have extended Sullivan's "public official" to "public
figure"-- but that is someone seeking public attention, and it's hardly
clear if writing on Usenet qualifies.   All that's up in the air.
Public figures enjoy a lower standard of protection. The Supremes have
also decided that in order to be liable as a publisher you have to
exercise editorial function, which means that most of Usenet and
Compuserve don't qualify, but moderated Usenet groups, mailing lists,
and Prodigy do.  The Times is responsible for libelous letters to the
editor (if they meet other standards) but not if it had a web edition
where people posted what they liked.