Wednesday, December 7, 2011

Democracy runs on Public Debate - if you're interested to know legally why Censorship is grossly wrong

Excerpts from Subramaniam Swamy's speech on his accusations over Sonia Gandhi

What is this got to do with Freedom of Speech? After all, you did exercise your freedom of speech by putting an Ad and now you have been made accountable for it. How is it freedom of speech gets threatened by someone filing a suit, a question may be asked.

This precise question was raised in 1964 when New York Times published an Ad, about civil rights abuses in Alabama and particularly targeting police commissioner of capital of Alabama. And that Police commissioner filed a suit over New York Times and he claimed a damage of 10 million dollars. Those days 10 million dollars is more than 100 million dollars today. The lowers courts gave in to suit and imposed the cost on New York Times to pay 10 million dollars. NY Times went to state supreme court and state supreme court said, no, you have to pay the amount. So, they went to the Supreme Court finally and it became the most classic and most fundamental case called, “NY Times Vs Sullivan, the police commissioner of Alabama. This case has become the standard for defamation law suits. In that Supreme court said, publishing an advertisement, against public officials is only defamatory if that public official first proves that the advertisement is false, second that Public official also proves that New York Times knew it was false and yet published it and three that the the defendants prove that NY times knew it was false and yet went ahead and published it with reckless disregard for truth. Now, they asked the Police Commissioner, can you prove that? So the case was set aside and they were told to go back and start all over again at lower courts and prove that NY Times was fault on these grounds. Subsequenty, NY Times standard, which is called ‘actual malice’ , which is a technical term and do not confuse with dictionary meaning of malice. “Actual Malice’ means knowing something to be false, in utter disregard to the truth go ahead and publish it, that is actual malice. After the NY Times judgement, the supreme court in number of cases expanded the concept of public officials to public figure, basket ball player, public figure, lawyer appearing in a public case, public figure, you can even slander a lawyer, provided you can show that the case is a public case, so that a number of categories widened and widened.

Why is reversal of burden of proof for Public Figures?

This is what NY Times said, at the pain of litigation, at the pain of being sued for, what you speak, if public figures are allowed to go to court to sue for defamation, then it will have a chilling effect on public debate and democracy runs on public debate. Why are they seeking for a separate category for public officials? In the case of private person, files a defamation lawsuit, the other side (defendant) has to prove, the onus is on the other side (defendant side). In the case of public person, the onus comes on you (plaintiff), why? Why is this reversal of this burden of proof? The reversal is because the public person can call a press conference and say this is a lie and challenge the defendants to prove.

So the connection is if you impose that pain of litigation in a matter in public domain then that has a chilling effect on the debate in the country and therefore it is a violation of freedom of speech, it will let loose a feeling which will chill further incentive to debate and discuss.


Democracy runs on Public Debate

You can accuse a public figure even if you suspect, the proof of burden does not rest on the common man and it actually rests on the Public Figure to prove himself right.

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