Richard Vedder is an economist, historian, author, and columnist. He is a professor emeritus of economics at Ohio University and senior fellow at The Independent Institute. Who have just published his latest book called Restoring the Promise: Higher Education in America.
In our discussion, I mentioned the fact that the number of hours of minimum-wage working required to fund a year at university has skyrocketed since the 1960s:
There was an interesting little aside in an episode of South Park a few years back, but if you live in the UK, you may not have caught it, because that episode of South Park, the cartoon with eight-year-old Colorado boys who seem to know too much and too little about life was never shown in the UK. The episode had a poorly-drawn caricature of the actor Tom Cruise, who improbably shows up at the house of one of the boys, gets offended, hides in the boy’s wardrobe and won’t come out.
You get the impression that the writers are trying to make a point.
But don’t make that point in England.
American libel laws started out very similar to the ones in England, but they have diverged radically, and that change has become such a part of the culture in the US that it’s hard for many people grasp the difference. The main change came about from a case in the US called New York Times v O’Sullivan. I don’t want to go deep into the legality, but basically, in 1964, the New York Times published a piece on policing civil rights demonstrations in Alabama which contained some inaccuracies, and the Montgomery police commissioner LB Sullivan considered that constituted a libel against him.
He sued for libel. In the UK that would be a slam-dunk. You accuse someone of something you can’t prove in court. Ka-ching, they get a big payout, supposedly to compensate them for the loss of their good name.
But the New York Times fought the case to the Supreme Court arguing that the First Amendment meant that they needed some latitude. If they publish millions of words a day, they are going to make some honest mistakes and if that could put them out of business, that would effectively restrain their free expression.
The court agreed, and changed the standard to take a libel case. Someone suing now doesn’t just have to show that what was written was wrong; they have to show that the publisher was malicious or reckless in writing it. It’s no good to just prove the facts support you; you have to prove the journalist knew, or should have known the truth but wrote something false anyway.
That sounds reasonable, but it puts a burden on the person taking the case to effectively prove what was going on in the mind of the journalist when they wrote it, and the only way to do that is to ask them, and it’s pretty unlikely that they will voluntarily admit to malice or recklessness.
In the UK, the old standard still applies; in fact it has got much stricter. All along, if you could afford an expensive lawyer, and if you got wind that some journalist was going to publish a story about you that you didn’t like, and if you could take them to court in time, you could get an injunction, an order not to publish. The only way to fight this was to prove every detail of the story in court, an impossible burden for most publications.
But journalists developed a couple of strategies to fight this. One was to keep the stories top secret until publication, but that meant you couldn’t ask the subject for a comment and risked missing out some aspect of the story, increasing the risk of a libel case. Another was, if you got injuncted, not to report the story, but report on the injunction.
So the courts started issuing what are called superinjunctions. That’s a court order not only not to publish a story, but also not to publish the injunction, or report that the injunction exists, or report anything about the case whatsoever, and it applies to anyone who knows anything about it, so by definition no journalist can report it.
There have been a few high profile cases, including one taken by the chairman of the Conservative party. In the 1980s he won half a million pounds sterling, a gigantic fortune at the time, from a newspaper that reported that he had paid a prostitute for sex. Decades later, he was convicted of perjury, the story was entirely true. The newspaper was from a big media group, but other smaller publications have been totally put out of business by libel awards.
But that was the 1980s, before the internet took hold. That brings me back to South Park and Tom Cruise. Now anything that is published anywhere is, give or take the odd great firewall, published everywhere. Including England.
That gives us what is called libel tourism. People with no connection to the UK at all, going to the UK to sue other people with no connection to the UK for what they wrote in publications with no connection to the UK. That path has been somewhat narrowed, following a change in the law in 2014, but it’s still there, and that’s why the episode from South Park that I’ve taken that clip from has never been shown on British TV.
South Park hit back with another episode where a whole host so stars lock themselves in the boy’s wardrobe, and when they come out you hear this exchange.
I’ll sue you in England seems to be the ultimate threat that a celeb can make to a publisher, because it’s basically impossible to sue in the US.
Whatever about the international impact, this affects British politics profoundly. If you want to know how profoundly, try to find out how many children the UK prime minister, Boris Johnson has. British reporters, if they mention the topic at all, usually say that he has ‘at least’ five children. His Wikipedia entry, at the time of recording, in the quick facts box says ‘Children: 5 or 6’. He has four children with his second wife, another with a woman he had an affair with while he was married to his second wife – that information came out in a court case – and there are persistent rumors of at least one more child with another woman, but nobody’s publishing.
The British libel laws are said to allow politicians to sleep soundly in other people’s beds, but I’m much more concerned about them being used to prevent information vital to the public good being published. One oil company, called Trafigura used a superinjunction to prevent the publication of a report that they had been illegally dumping toxic waste on beaches in West Africa. We found out about that because of a concerted action including a member of the British parliament who managed to mention it in a speech, under parliamentary privilege.
For the rest – we don’t know, because we don’t know. That’s the problem with libel laws being too strict. But what about the almost – almost – non-existent libel laws in the US – more next week.
But my point about the British laws is not so much about the scandals that people try to suppress, but break through, not even about the stories that are successfully stymied by legal action, but about the much larger number of stories that never get that far, because journalists are too afraid to write them, or just don’t even start on the research because they know that there is a good chance that they will never be able to publish.
That is a cancer on public life.