Financial woes may close WikiLeaks

[crazy canuck]

If there is such a decision I would appreciate it if someone could link it.  It would be a rare case of the USSC rejecting their own test in favour of a Commonwealth test.

Not so in this area, and in fact the legislatures (state and federal) have acted to insulate the US from foreign libel judgments.

The question is whether the US has at any level of Court adopted the Responsible Journalism test.

[The Brain]

If Murdoch-owned media with its clear policy of illegal activity can make use of the "press" fig leaf then surely Wikileaks can do the same.

[grumbler]

The Sullivan case engaged both freedom of speech and freedom of the press.  The USSC held that actual malice must be proven in order to protect both those constitutional rights. 

The Sullivan case, however, involved only cases regarding reporting on public officials.  It was an important case, but didn't change the standards for the overwhelming majority of defamation cases.

Freedom of speech and press are not "constitutional rights," btw.  They are constitutionally-protected rights.  Even the courts get this wrong sometimes, so I don't blame you for getting it wrong, but the distinction is important semantically.  The Bill of Rights protects rights that predated the US Constitution, and will exist after it.

In Canada the Constitutional rights of the media are protected by the application of the Responsible Journalism test which, as I said, is something quite different.

In Canada, constitutional rights are a different animal than the US's constitutionally-protected rights.  Most of its laws are different from equivalent laws in the US, both in wording and intent.  The common law regarding behavior protected by constitutional guarantees of freedom of the press are also different; it is important to remember that the common law of the US is, in fact, not the common law of Canada.  Canadian laws, common as well as statute, do not ally in the US, and vice-versa.

[grumbler]

The question is whether the US has at any level of Court adopted the Responsible Journalism test.

Is this really your question?  Why would you think it has?

[The Minsky Moment]

The Sullivan case, however, involved only cases regarding reporting on public officials.  It was an important case, but didn't change the standards for the overwhelming majority of defamation cases.

This is a correct characterization of Sullivan.

However, after Sullivan the Court expanded the malice requirement to any case involving a "public figure", which is a much broader formulation, particularly given that as interpreted by the Court, an otherwise ordinary person can be deemed a "limited purpose public figure" if that person inserts himself or is drawn into a matter of public controversy.  For example, before 2008 Joe Wurzelbacher was just a private person.  After he drew attention because of his comments to Obama, he became a limited purpose public figure.  And now that he is flirting with running for Congress on a national stage, he is a public figure.

[grumbler]

This is a correct characterization of Sullivan.

However, after Sullivan the Court expanded the malice requirement to any case involving a "public figure", which is a much broader formulation, particularly given that as interpreted by the Court, an otherwise ordinary person can be deemed a "limited purpose public figure" if that person inserts himself or is drawn into a matter of public controversy.  For example, before 2008 Joe Wurzelbacher was just a private person.  After he drew attention because of his comments to Obama, he became a limited purpose public figure.  And now that he is flirting with running for Congress on a national stage, he is a public figure.

True, but even including limited purpose public figure, I would be surprised if more than a minority of cases of defamation were resolved using the Sullivan rules.  Unless I misunderstand Sullivan's applicability completely.

This would make Sulivan non-equivalent to the Responsible Journalism Test even if it were similar in application.

[crazy canuck]

In Canada, constitutional rights are a different animal than the US's constitutionally-protected rights.  Most of its laws are different from equivalent laws in the US, both in wording and intent.  The common law regarding behavior protected by constitutional guarantees of freedom of the press are also different; it is important to remember that the common law of the US is, in fact, not the common law of Canada.  Canadian laws, common as well as statute, do not ally in the US, and vice-versa.

A couple points here.

First, Sheilbh said that in the UK there was a common law media defence of Responsible Journalism which the government was considering putting into legislation.  You said "same here".  From that I understood you to mean that the US also has a common law media defence of Responsible Journalism which the US government was considering putting into legislation.

To my knowledge the US does not have a common law media defence of Responsible Journalism.  You are quite right the Sullivan involved a public figure but subsequent US cases have broadened the circumstances in which the malice test will apply so that it has become very difficult for media in the US to be successfully sued because of the malice threshold.  That is why I asked the question of whether any US Court has adopted the Responsible Journalism test since it really isnt needed in your country. ie why swap a weaker protection for a stronger protection.

I am also wondering why you consider Canadian Charter Rights to be a "different animal" from US Constitutional rights. 

I dont understand why you are making the point about Canadian law not applying in the US.  That of course is so but I dont know how if furthers the discussion.

[crazy canuck]

I would be surprised if more than a minority of cases of defamation were resolved using the Sullivan rules.  Unless I misunderstand Sullivan's applicability completely.

I think that is where you are going wrong.  The malice test is the main protection for media outlets in the US.  That is what allows your media to say some outrageous things without being successfully sued.  Even if there is no truth to the allegations made by the media, so long as the defamation is uttered without actual malice there is no cause of action and actual malice is a very hard thing to prove.

[grumbler]

First, Sheilbh said that in the UK there was a common law media defence of Responsible Journalism which the government was considering putting into legislation.  You said "same here".  From that I understood you to mean that the US also has a common law media defence of Responsible Journalism which the US government was considering putting into legislation.

That's not what he said, and I responded to.  He said that the concept of responsible journalism was a common-law concept in the UK, and I said that it was the same in the US. 

To my knowledge the US does not have a common law media defence of Responsible Journalism.

The US has a common-law defenses against defamation suits that include the idea that the journalists were acting responsibly, not maliciously or recklesslly.  It has no statute that determines what that that responsible (hence protected) behavior must be.

"Responsible Journalism" is not the same as "responsible journalism."  The former is a proper name, the latter a term.

I am also wondering why you consider Canadian Charter Rights to be a "different animal" from US Constitutional rights. 

Because the Canadian Charter lists the rights of Canadians, whereas there are no US "Constitutional Rights" (except, where intoduced in the Fourteenth Amendment, and even then depending on how you interpret the status of those issues before the 14th was ratified); there are Constitutionally-protected rights, but these are not explicitly listed like Canadian Charter rights.  Some are listed, some are not.  The ones not listed have equal standing with those that are listed.  In the US, rights exist outside the Constitution, which is a set of rules for the government, not a listing of rights of the people.

I dont understand why you are making the point about Canadian law not applying in the US.  That of course is so but I dont know how if furthers the discussion.

I noted that to make sure that you understood that the Responsible Journalism Test, as a matter of British law, didn't apply to the US, as you had repeatedly questioned.

It now appears that you simply misread what I said about responsible journalism being defined by US common law as somehow having to do with the English common law Responsible Journalism Test.

[crazy canuck]

The US has a common-law defenses against defamation suits that include the idea that the journalists were acting responsibly, not maliciously or recklesslly.

You are mixing things up.  The test of not acting maliciously derives from the Sullivan test which is a different test from the Responsible Journalism concepts found in the common law of both Canada and the UK.  Again I ask if you can link any American decision which applies a common law defence of Responsible Journalism whether you wish to capitalize the words or not.

Because the Canadian Charter lists the rights of Canadians, whereas there are no US "Constitutional Rights" (except, where intoduced in the Fourteenth Amendment, and even then depending on how you interpret the status of those issues before the 14th was ratified); there are Constitutionally-protected rights, but these are not explicitly listed like Canadian Charter rights.  Some are listed, some are not.  The ones not listed have equal standing with those that are listed.  In the US, rights exist outside the Constitution, which is a set of rules for the government, not a listing of rights of the people.

You have taken us significantly off track here.  How does this have anything to do with Freedom of Expression and Freedom of the Press being different under the Charter?

It now appears that you simply misread what I said about responsible journalism being defined by US common law as somehow having to do with the English common law Responsible Journalism Test.

Again, where is the case law in the US that says anything about a responsible journalism test.  If there is such a thing I would like to see it as it would helpful for me to understand that development in US law.  I dont think I misread anything.  You said the US has such a test. To my knowledge there is no such thing in the US.  I would be most appreciative if you could point me to the case or cases you say set out such a test in the US.

[grumbler]

You are mixing things up.  The test of not acting maliciously derives from the Sullivan test which is a different test from the Responsible Journalism concepts found in the common law of both Canada and the UK.  Again I ask if you can link any American decision which applies a common law defence of Responsible Journalism whether you wish to capitalize the words or not.

Why would I even look for such links?  Do you suspect that they exist?  If so, why?

The test of the press not acting maliciously doesn't derive from Sullivan; Sullivan clarified what that test would look like, in the case of public figures.

You have taken us significantly off track here.

If so, it was your question that drew us off-track.  I was responding to your question.

Again, where is the case law in the US that says anything about a responsible journalism test.

Responsible journalists and publishers do not act with "actual malice."  If they do so, they are not protected by the Constitutional guarantees of the freedom of the press.  I don't think you can argue that journalism that publishes an assertion of fact "with knowledge of its falsity or with reckless disregard of whether it was true or false" is "responsible journalism."

If there is such a thing I would like to see it as it would helpful for me to understand that development in US law.  I dont think I misread anything.  You said the US has such a test. To my knowledge there is no such thing in the US.  I would be most appreciative if you could point me to the case or cases you say set out such a test in the US.

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), quoted above.

[crazy canuck]

Why would I even look for such links?  Do you suspect that they exist?  If so, why?

Because you have told me the US has such a common law defence.  Given the rest of your post I see now that the US does not in fact have such a thing.  so when you said "same here" earlier I was correct to question that response since what you really meant was "same here - although what I mean by same is that it is really quite different here"

Responsible journalists and publishers do not act with "actual malice."  If they do so, they are not protected by the Constitutional guarantees of the freedom of the press.  I don't think you can argue that journalism that publishes an assertion of fact "with knowledge of its falsity or with reckless disregard of whether it was true or false" is "responsible journalism."

I understand now.  You dont know the legal test - you are just applying a layman's understanding of what responsible journalism might mean.  You didnt dont know that Reponsible Journalism is a legal term of art and that such a common law defence is not actually part of US law.  The US law is quite different and provides a much more robust defence for media defendants which merely requires that the media does not act with actual malice.

You are quite right that a media outlet the publishes with malice is not acting responsibly but merely acting without malice is also no guarrantee that the media outlet is acting responsibly ie acting without malice is a necessary but not sufficient factor in the responsible journalism defence.

[Josquius]

This is sad.
I'm not a huge wikileaks fan- though, it must be said, I think their going after the west is more a case of more good material from the west being presented to them rather than some sort of anti-US vendetta.
The way banks are cutting off their funding like that....yeah. That's really going after the freedom of the press.

[garbon]

This is sad.
I'm not a huge wikileaks fan- though, it must be said, I think their going after the west is more a case of more good material from the west being presented to them rather than some sort of anti-US vendetta.
The way banks are cutting off their funding like that....yeah. That's really going after the freedom of the press.

You shouldn't hit the bottle so hard.

[grumbler]

Because you have told me the US has such a common law defence. 

No.  Go back and re-read what I whot, and you may find the source of your confusion.  The US laws on what constitutes constitutionally protected press activity is in the common law, not the statute law.

Given the rest of your post I see now that the US does not in fact have such a thing.  so when you said "same here" earlier I was correct to question that response since what you really meant was "same here - although what I mean by same is that it is really quite different here"

He said that what constitutes "responsible journalism" was from the common law (which it is) and I said that the same situation applies in the US, which it does.  This is not rocket science.

I understand now.  You dont know the legal test - you are just applying a layman's understanding of what responsible journalism might mean.

I was responding to what was written.  The term "responsible journalism" has, in fact, an everyday meaning.  Do the google search, and find http://www.google.com/search?q=%22responsible+journalism%22&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a None of the ones on the first page refer to any English common law.

You didnt dont know that Reponsible Journalism is a legal term of art

And you didn't know that, when words are capitalized, they take on a different meaning than when they are not capitalized, and are in fact placed in quotation marks.  Responsible Journalism is not the same as "responsible journalism."  Perhaps capitalization doesn't carry the weight in your native language that it does in English.  Check out http://www.chompchomp.com/terms/propernoun.htm, and I think you will see the source of your confusion.  Responsible Journalism names "a specific [usually a one-of-a-kind] item."  Then go to http://www.chompchomp.com/terms/commonnoun.htm.  There, you will discover common nouns.  "The important thing to remember is that common nouns are general names. Thus, they are not capitalized unless they begin a sentence or are part of a title. Proper nouns, those that name specific things, do require capitalization."

English can be tricky.  When you run across cases that look to differ from how your native tongue works, don't assume that something you read about "legal terms of art" completely address the situation.  Ask.  People here will help.