Defamation Laws Balance Liberty with Individuals' Dignity

By Sara Feuerstein, Washington File

In Democracy Dialogues webchat, U.S. scholar examines defamation

In democratic societies, the laws on defamation must deal with the tension between freedom of speech and an individual's right to personal dignity, says a U.S. scholar who has compared how various societies address this complicated issue.

What constitutes defamation is "a subject that goes to the heart of any system of democracy," said professor Donald Kommers during a March 1 live webchat. Kommers is a professor of comparative constitutional law at the University of Notre Dame in Indiana.

Defamation is the act of making false public statements that are likely to harm another person's name, standing or repute in the eyes of society at large, he said. "In a democracy, there is an obvious tension between a person's liberty interest in speaking publicly about an event or activity or a politician ... and the individual's right to personality and dignity."

Kommers said defamation can occur not only in the mainstream news media such as radio, television, newspapers and magazines, but also in newsletters of private organizations, corporations and even church bulletins.

"The Internet is also a medium of public discussion, and to the extent that a defamatory message on the Internet reaches third parties - whatever their number - you have a potential cause of action and can sue for defamation," said Kommers. He said he believes blogs (weblogs or online journals) have the same protections and responsibilities as other forms of media.

When asked about the controversy over satirical cartoons of the Prophet Muhammad, Kommers said offensive speech is protected in the United States and that "most European constitutional democracies tolerate, legally, [these] kind of cartoons." But he added, "the press does have a moral responsibility, I think, not to be gratuitously offensive."

Kommers said the courts are the main mechanism for determining what is protected free speech and what constitutes defamation. Judicial review is "the ability of a court of law to determine whether a state law or action limiting what you can say violates the free speech provisions of the constitution," he said.

"The United States tolerates more speech than probably any other country on the globe," said Kommers. He cited a 1964 U.S. Supreme Court decision that found that reporters or news media can be prosecuted for making false statement about a public official "only if the statements were made with 'actual malice' or with reckless disregard for the truth, a standard that is extremely difficult or impossible to meet."

In contrast, democracies such as Canada, Australia, South Africa and Germany do not follow the American policy, so that frequently "a claim to dignity or to personality will trump a claim to freedom of speech, whereas the reverse is often the case in the United States," he said.

In Germany, for example, "the burden is on newspapers to verify the truth of their statements," he said. German Basic Law states that freedom of speech "shall find its limits ... in provisions for the protection of young persons, and in the right to personal honor," he said.

Kommers has reached the conclusion that "liberty, for good or ill, is the master value of the U.S. Constitution, whereas personality, honor, and human dignity are of equal or more value in other constitutional democracies."

This webchat is part of the Democracy Dialogues initiative, which seeks to spark global conversation about various issues in democratic governance through interactive webchats, discussion boards, essays and photos. The next Democracy Dialogues webchat, entitled "Desecration of State Symbols," will feature Robert Justin Goldstein, a research associate at the University of Michigan. It will take place on March 6, at 9 a.m. EST (1400 GMT). To ask a question or make a comment before or during the webchat, please register at iipchat@state.gov. Participants in previous chats need not re-register; use the same username and password.

A transcript of the Kommers webchat on defamation is available on the Webchat Station site, along with announcements of upcoming webchats and transcripts of past events.

   _   _