B35-RK1
TOWARD "HIRED-GUN CONTROL"
Copyright by Richard Kostelanetz, 12/8/01    

  Preparing More Crimes of Culture for publication has me thinking about libel. Since the word means "a false statement that damages a person's reputation," no writer respectful of the truth intrinsic in scrupulous documentation should ever worry about libel suits.
  The principal objection to them is that a liberal secular state should not be in the business of establishing truth and falsity; that authority is strictly for theocracies and other dictatorships. In that case, libel should be considered a legal fiction, which is to say that it doesn't exist except within a system of laws conducive to state-based or state-leveraged abuse. Anyone supporting libel cases is probably predisposed to supporting other kinds of unwarranted governmental instrusion.
  Consider as well that "defamation," which means undermining someone's reputation, depends upon people publicly lacking sufficient intelligence or self-respect to reply in kind. Criticism is damaging only if the recipient allows it to be. If someone says something disagreeable about you, you are certainly welcome to reply with equally strong words. Should you refuse to do so, the costs of silence are wholly your responsibility. Externalizing blame is, in psychological terms, psychotic.
On the other hand, should your refutation of "defamation" be right and your critic wrong, your opinion will survive and your critic will be deflated. That fact that someone might have a stronger voice, say because he is an established writer or because the periodical publishing him had a wide circulation, is no excuse for any reluctance to answer in kind. Such circumstantial inequities are just as inevitable in a free society as unequal economic opportunities. Truth will triumph; it usually does, all excuses to the contrary notwithstanding. In my experience, individuals criticized in public print, especially in books (rather than newspapers), knew that they were doing something wrong and that their wrongdoings would eventually be exposed. To suggest otherwise is to imply that they are irredeemably stupid or morally retrograde. I cannot think of any recently alleged "libel" that was not at least somewhat true, regardless of what was decided in court.
  Furthermore, in all cases, the complainants focused upon themselves public attention that was probably more damaging than the initial accusation could have been. When the playwright Lillian Hellman sued Mary McCarthy for calling her a liar, Hellman reminded everyone that she was indeed a fabricator. Remember as well that a court action allows the defendant to subpoena people to testify under oath, which is no problem if the petitioner has nothing to hide but a dangerous obstacle if such testimony might create subsequent predicaments, beginning with other legal actions.
 In a sane world, it would be commonly acknowledged that people initiating libel suits wish by that fact alone to cause more damage to themselves than could putatively be blamed on anyone else. Indeed, to say that such damage is not desired is to deprecate the litigant's character and/or sanity, perhaps justifiably. (Just imagine a loser using such an "insanity" defense to avoid subsequent financial responsibility.)
  Libel suits, don't forget, are strictly for the rich. The fact that defamation suits can be so costly accounts for why, when you write something critical of someone, the first question your publisher asks is not whether the charge can be substantiated but whether the offender is rich, which is to say whether he or she can afford to lose a lot of money in exchange for pretenses of intimidation.
  Since such suits are rarely won, especially nowadays, only rich pricks can afford them, which is another way of saying that anyone, male or female, who initiates a libel or defamation suit, especially of a visible critic, wants ipso facto not only to display greater wealth but to be known as a Rich Prick--to have his or her name forever prefaced, by one and all, as that Rich Prick X.Y.Z., much as prostitutes are called "whores" long after they've done tricks. (Don't discount the advantages of such a moniker in, say, attracting receptacles of both sexes, a certain class of literary groupies, or lone cultural psychotics.)
  The real function of such a suit is wasting a writer's time--to keep him or her away from primary work. Given this truth, consider that the rule of loser pays should be extended to making the litigant responsible not only for court costs and the writer's lawyer but for fair compensation of professional time lost. Assuming a rate of $50.00 per hour for a writer's time, the court could then rule that, if 200 hours of a writer's time were wasted, then the debt would automatically be $10,000. If 2,000 hours, then $100,000. (Consider this rate cheap, as plumbers charge more per hour, at least in New York City.) 
  If this principle of just recompense for human nuisance is acceptable, it would be wise to establish in advance that an avid litigant can pay such penalties and thus that a reasonable amount of money be put in escrow before any suit can begin, simply because we all know that collecting debts from moneyed deadbeats, such as negligent absentee fathers, is as much of a social problem nowadays as street thuggery (and morally similar in the arrogant contempt for the law). If such debts aren't paid, then his or her lawyer should be held accountable for the debt. If the lawyer doesn't pay promptly, he or she would be automatically disbarred with no allowance for legal persiflage. (This last requirement would make a sane lawyer have his rich client establish in advance of a libel suit a sufficient kitty to meet all possible expenses.)
  These last requirements ought to be acceptable, potential litigants' palaver to the contrary notwithstanding, because nothing is more dubious than a rich person who does not put his or her money where his or her mouth is. Need I suggest that any writer inadvertently chosen to become the test case for these new rules is guaranteed professional immortality. (The baseball player Curt Flood's misfortune was that he challenged archaic practices in a game where, unlike writing, careers necessarily terminate prematurely.)
  Precisely because libel suits can be so expensive, there are, needless to say, semi-scrupulous lawyers who specialize in conning rich people into initiating them. All those favoring the "redistribution of wealth" should applaud such efforts. It is easy to suspect a provocateur behind the most comic recent libel case, where the British arm of McDonald's sued two impoverished environmental activists for saying in a six-page leaflet that the multinational destroyed rail forests, abused workers, and caused health problems.
  This London trial, begun in early 1994, went well into 1995, with the writers acting as their own lawyers. Because the trial became a farce attractive to journalists, McDonald's suffered bad publicity, protests at its stores, and legal expenses of nearly ten thousand dollars per day. According to the Wall Street Journal, "Acknowledging that Mr. Morris and Ms. Steele are broke, McDonald's isn't seeking damages or even court costs. It only wants the judge to say the leaflet's statements are false." McDonald's has reportedly offered to "settle" the case if only the writers (no one else) would admit the charges as false, without success. The defendants "say they will go away only if McDonald's promises never to pursue such a case again--against anybody." That last stipulation would, of course, be particularly unacceptable to canny lawyers whose livelihoods depend upon initiating, or at least threatening, and then sustaining such legal actions. Hung on its own arrogance, along with its susceptability to "aggressive" con men, McDonald's was left to dangle embarrassingly in the wind, its purported representatives snickering no doubt on their way to their banks.
  Consider that nothing more surely measures the idiocy of a plaintiff than a susceptibility to self-defeating and self-defaming legal actions. On further thought, consider that so-called defamation suits simply represent bullies' wishing to accomplish with "hired guns" something, usually a silencing, that could not be done without them--no more, no less. It is obvious that anyone initiating a libel suit, that anyone so desperately desiring assault weaponry, is courting the ignominy that is generally accorded bullies.
  Those wishing to leverage state power over free thought become incidentally the best arguments for, let's be frank, hired-gun control.

RICHARD KOSTELANETZ has published many books of criticism--art, literary, and cultural. P.O. Box 444, Prince St., New York, NY 10012-0008,  rkostelanetz@bigfoot.com  website: www.richardkostelanetz.com 

[Dan responds: This really cores into 1 of the big problems in American thought- that is the privatization of censorship. The ACLU will not touch libel cases so the odd thing is you can basically rip a government figure with impunity but any private prick with $ has more immunity than the President! We need an ACLU for civil cases to even things out. Most writers- save for a Grisham or King, et al.- simply cannot even get into the financial batter's box to defend, much less vindicate, themselves. Failing that, there should be a civil arbitration function that tosses out all but the most likely claims of libel, defamation, etc.- that is, 99.5% of libel cases brought. & in the cases where writers sue other writers it is almost a law of nature that the suer is a far less competent, &/or frustrated, writer manifesting their envy toward the better, sued, party/writer. Until then I guess content will have to lay with time & truth willing out- even Tommy Jefferson- millionaire & President- could not keep his shit down forever. The only thing I would add to this piece which really tells it straight is- not only do the poor not sue, but the dead cannot be libeled either. Think about that- you who know!!!!]

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