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Monday, February 25, 2013

Political Participation and Libel Law

The news today is that Sheldon Adelson is suing the Wall Street Journal for libel.  So here's my question.  If Adelson is deemed a public figure because of his very public involvement in electoral politics, then does imposition of the actual malice standard constitute a burden on that political participation, in violation of the First Amendment?  My intuition is that that can't be right: the whole question of whether someone is a public figure turns largely on whether the person has injected himself into the public discourse.  Since presumably you do that by engaging in speech, it can't be an unconstitutional burden on free speech to impose a higher liability standard: if it were then much of the "public figure/higher fault standard" structure is suspect.

But then what about Davis v. FEC, the "Millionaire's Amendment" case?  If Davis stands for the proposition that a person's spending of his own money to influence the outcome of an election can't trigger burdens on that person or his speech (or, rather, that such burdens have to satisfy a high standard), then isn't that what's going on here?  Adelson participates in politics -- that leads to his becoming a public figure -- which in turn leads to his having to satisfy the actual malice standard -- that leads to any alleged libel likely going uncorrected.

Or is the answer that libel is different because the plaintiff, by being a public figure, can vindicate the reputational interest that libel is designed to protect to begin with?  So in that case Adelson doesn't lose anything by virtue of his having a tougher time in court -- he can protect his reputation through self-help, and that's all that libel law ultimately cares about.  If that's the right analysis then I'd be tempted to ask by Davis himself couldn't just spend his own money and get his message out: that's his self-help, which remains in competition with the opposing (or in this case, libelous) speech that stays out there in the market.  And in both cases, the end result is more speech.  But that's a more detailed argument, that gets to the merits (or lack thereof) of Davis itself.

Any thoughts?

Posted by Bill Araiza on February 25, 2013 at 05:31 PM in Constitutional thoughts, First Amendment | Permalink


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The questions are interesting, but since the complaint was filed in Hong Kong inapplicable to the actual case. Even assuming that US law applied, Adelson's participation in electoral politics has not been limited to contributing money. He has been a frequent and vocal spokesman for his views, and would presumably qualify as a public figure on speech alone. To bootstrap his having made large contributions as a way to immunize him from public figure status based on his speech seems an odd argument.

Posted by: Ray Campbell | Feb 25, 2013 9:49:16 PM

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