Opinion | The Supreme Court Faces a Huge Test on Libel Law

If Sullivan is reversed, defamation defendants will lose constitutional protection they now have, and the United States could revert to a defamation regime similar to that of England.

England is the motherland of the United States, a democracy America has learned a lot from. But his Libel Law is at war with the principles of the First Amendment. English law does not come close to protecting the Sullivan decision. Inaccurate statements about even the most powerful personalities in society are hardly protected by law in England; a defendant could be held liable for a false testimony even if he did not know that it was false. In addition, the burden of proof lies with the defendant; the defendant must prove that what he said is true. In the United States, the plaintiff has to prove it was wrong.

A return by the Supreme Court to something like the English approach could put the most important type of speech off significantly. This has happened worryingly often in England. In 2014, Cambridge University Press declined to publish a book on the links between Russian President Vladimir Putin and organized crime because of England’s strict libel laws. In a letter to the author, Karen Dawisha, an executive at the publishing company, wrote: “The decision has nothing to do with the quality of your research or your scientific credibility. It’s just a matter of risk tolerance given our limited resources. ”The book was eventually published in the United States. No defamation lawsuit was filed.

A current example of the potentially deterrent effect of English libel law is the libel suits brought before courts in London by supporters of Mr Putin this year against journalist Catherine Belton and her publisher HarperCollins for her highly acclaimed book Putin’s People: How the KGB Recaptured Russia and then conquered the west. “

The “ruinous” lawsuit, according to Toomas Hendrik Ilves, a former Estonian president and previously a journalist, “is not only intended to destroy them, but to deter anyone who dares to investigate the link between intelligence, corporations and organized investigations.” Crime and state power that produced and supported Russia’s ruling elite. “

That, of course, is exactly the kind of threat that the Sullivan Decision is designed to protect against.

The stark difference in approach between the US and UK libel laws led Congress to unanimously pass a law, which was signed by President Barack Obama in 2010, preventing state or federal courts from enforcing foreign libel sentences against US defendants who fail are compatible with the protection of the First Amendment in the Sullivan decision.