This archive report was first published on 23 October 2021.
On October 23, 2021, the Supreme Court faced a significant test on libel law, a crucial aspect of free speech in the United States. The Sullivan decision, a landmark ruling in 1964, provides constitutional protections for defendants in libel cases, safeguarding their right to express themselves freely.
England, the mother country of the United States, has a libel law that is at odds with First Amendment principles. Unlike the Sullivan decision, English law does not provide adequate protections for defendants. Inaccurate statements about powerful individuals can lead to liability, even if the defendant was unaware of the statement's falsity. Moreover, the burden of proof lies with the defendant, who must prove the truth of their statement. In contrast, the plaintiff must prove the statement's falsity in the United States.
A return to the English approach could have a chilling effect on speech, as seen in the case of Cambridge University Press, which declined to publish a book about President Vladimir Putin's connections to organized crime in 2014 due to England's strict libel laws. The publisher cited 'risk tolerance' as the reason for the decision, not the book's quality or scholarly credibility.
More recently, supporters of Mr. Putin have brought libel actions against journalist Catherine Belton and her publisher, HarperCollins, for her book 'Putin's People: How the KGB Took Back Russia and Then Took On the West.' This 'ruinous' legal action, according to Toomas Hendrik Ilves, a former president of Estonia and a journalist, is intended to deter anyone from investigating the nexus of intelligence, business, organized crime, and state power that sustains Russia's ruling elite.
The stark difference in approach between American and English libel law led Congress to pass legislation in 2010, signed by President Barack Obama, barring state or federal courts from enforcing foreign libel judgments against U.S. defendants that are not consistent with First Amendment protections as set forth in the Sullivan decision.
