Cui bono?
Glen Newey · Unterberg v. Carter
Does the right to free speech entail a right to lie? On Wednesday, lawyers acting for five New York consumers filed a five-million-dollar lawsuit against ex-President Jimmy Carter. Litigants in Unterberg et al. v. Jimmy Carter et al. allege that Carter’s 2006 book Palestine: Peace Not Apartheid contains defamatory falsehoods about the state of Israel. The plaintiffs, who each bought a copy of the book for $27, maintain not that Carter was not entitled to make ‘malicious and false’ statements in the book, but that under New York General Business Law section 349 the plaintiffs’ rights were violated because they assumed they were buying a factual account of Israeli-Palestinian politics. Hence, they contend, Carter and his publisher (and now co-defendant) Simon & Schuster would have been within their rights had bookshops shelved the book with fiction rather than non-fiction.
The action compresses a number of oddities, which will prove fatal to it. First, it’s not clear that Israel has corporate personality for the purposes of proving defamation. Since most factual books contain inaccuracies, presumably the plaintiffs will have to prove that the defendants did so with intent. In the light of New York Times Co. v. Sullivan (1964), Simon & Schuster won’t even have to demonstrate fair comment, only a lack of actual malice. To circumvent the First Amendment, the plaintiffs’ lawyers would need to show that the author and publisher not only knowingly made false claims, but did so attempting to secure an unfair commercial advantage. They are after all competing with such scrupulous works of historical record as Joan Peters’s 1984 bestseller From Time Immemorial. The book, described by the Likud-supporting Israeli historian Yehoshua Porath as ‘sheer forgery’, sought to explode as myth the notion that extensive Palestinian settlement in the Bible lands had long predated expropriation in 1948; though utterly discredited, From Time Immemorial is a major source for Alan Dershowitz’s 2003 book The Case for Israel. The Peters and Dershowitz volumes remain available from all good fiction booksellers.
This is not the first time that US litigants have sought to use anti-deception provisions of consumer protection law to circumvent the First Amendment. In 1998 the activist Marc Kasky sued the Nike corporation in California for deliberately misrepresenting its contract suppliers’ labour practices in Vietnamese and Chinese factories, the main accusation being that Nike had lied about their use of child labour and insanitary working conditions, as documented by Vietnam Labor Watch and the Hong Kong Christian Industrial Committee. Kasky’s lawyers argued that Nike’s claims, made in a Nike-commissioned report by Andrew Young, a former US ambassador to the UN, should be construed as commercial speech and therefore subject to more a stringent legal regime than political speech. Winningly, Nike didn’t deny that its publicity regarding its east Asian operations was mendacious, but claimed First Amendment protection for it. Kasky’s suit was thrown out, but was upheld on appeal to the California Court of Appeal. Nike’s lawyers then lodged an appeal in turn with the US Supreme Court; civil rights bodies, notably the American Civil Liberties Union, filed amicus briefs on Nike’s behalf.
The legal issue remains undecided. In 2003 the US Supreme Court fudged it by dismissing the Nike case on a technicality. If Unterberg gets that far it may at least resolve the issue. One way to do so would be by recognising that the commercial exemptions to the robust free speech protections of the First Amendment are sustainable when, but only when, witting falsehood foreseeably procures dishonest advantage, as with hair-restorer or snake-oil puffs. Lawyers for Carter and Simon & Schuster could do worse than argue that in the US the idea of deriving commercial benefit from criticising Israel is as fanciful as the thesis of Peters’s and Dershowitz’s books.
Comments
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4 February 2011
at
9:47pm
DavidI
says:
I'd like to respond to a part of your very well-written piece on the Carter lawsuit. I disagree with much of the substance; but am glad to have the opportunity to address a part of what you have written.
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5 February 2011
at
4:13am
weaver
says:
@
DavidI
What a remarkably silly response. By definition, if you force Carter to publish his views under the label "FICTION" you have taken away his right "to advocate, to write or say whatever he wishes". How can someone advocate if they are compelled by law to state their advocacy is merely a work of fiction? This is like saying "everyone is entitled to state their opinion, but people whose opinions differ from mine must add 'and my opinion is false.'"
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5 February 2011
at
7:13pm
keith100
says:
@
DavidI
" It is a shame a former President would demean the office he held by engaging in such conduct, but his right to do so is not at issue in this case. It is about the false marketing and the law’s protection of the consumer from such trickery." Yes indeed. Going after Bush next?
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6 February 2011
at
1:26pm
Glen Newey
says:
@
DavidI
I don't usually reply to posts that appear in response to my blogs but I will make a few remarks here. It is certain, to repeat, that this lawsuit will fail.
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6 February 2011
at
7:58pm
A.J.P. Crown
says:
@
Glen Newey
I don’t usually reply to posts that appear in response to my blogs but I will make a few remarks here.
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5 February 2011
at
11:51am
movint
says:
Cui bono? Caveat emptor, more like
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6 February 2011
at
1:44pm
outofdate
says:
@
movint
Pecunia non olet, as it happens, all else is eyewash.
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7 February 2011
at
4:26am
DavidI
says:
With all due respect, I'd like to offer the following in reply to two posts:
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7 February 2011
at
5:14pm
cigar
says:
@
DavidI
"Perhaps you have a suggestion as to what the agenda was for all of them en masse, from different backgrounds personally and professionally, resigned from any further association with Carter and his Center and completely disavowed his book expressly writing that it was because of the falsehoods and misrepresentations, which they found especially shocking coming from a former President of the United States, from whom readers reasonably would have expected the truth."
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7 February 2011
at
6:36pm
requiemapache
says:
I successfully gave up my 20 a day habit after reading a book bought from the "Self Help" section of my local book store. My friend who bought and read the same book, is still puffing away several years later however. Should he demand the book be reclassified as fiction and get a refund? Wouldn't that also mean I have to start smoking again as I wasn't actually helped but instead enjoying a novel? It's all very confusing perhaps the clever DavidI can help clarify.
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7 February 2011
at
7:20pm
princeludwigtheindestructible
says:
So when nurse and facebook activist Euan Booth disputed Blair's version of the truth, he set up a peaceful, non criminal, non violent method of collective protest and encouraged people to move copies of "A Journey" from Memoir to "Murder Mystery", "Fiction" or even "Science Fiction".
Read moreWith all due respect, the "fatal" oddities you indicate are "compress(ed)" in the case simply are not at all relevant to the action. You question, for example, whether "Israel" has a "corporate personality" sufficient to maintain a "defamation" action. This case is in no way a "defamation" action and Israel is neither an actual nor interested party. Further, as I thought you understood from your very fair earlier note - that the case is not about whether Carter was entitled to write what he wrote - there is no issue whatsoever in the case about whether Carter hurt someone or something with his portrayal of the events or "facts."
The case has nothing at all to do with the First Amendment and, I am afraid, you have fallen for this canard, offered self-righteously by Simon & Schuster, where it has no place. Perhaps because writing is relevant to the matter, your journalistic instinct trumped reason and you reacted in knee jerk fashion in this one instance, rather than carefully analyzing the nature of the matter.
I must tell you that I am a First Amendment absolutist. In my practice, I defend the First Amendment (and other Amendment) of all who come to me, including the KKK in a prominent march case successfully challenging and anti-masking law. It is for that reason that I took the extraordinary step in the Complaint in this lawsuit of writing an introduction which explained what the case was not, as much as what it is. As I wrote in the Complaint itself, the case is not in any way a challenge to Carter's right to write or S and S's right to publish whatever Carter wishes to spew, however anti-Israel or pro anything else his speech or writing might be. He has the right to lie, to advocate, to write or say whatever he wishes so far as I am concerned and the lawsuit expressly notes that.
What the lawsuit asserts is that neither he nor Simon and Schuster has the right to entice people to part with their hard earned money by hawking a product to them which is not at all what it was advertised to be when targeting the audience they targeted.
Take the consumer's part for a moment. You have $27 you want to invest to learn the truth about the Middle East, the "peace process" and other related historical events. You want the real facts so that you can decide who is right, who is reasonable, who did and said what and so on. You see an advertisement for the book on this exact subject that the publisher touts as being the definitive such piece, written by none other than the former President of the United States who was at the heart of it all, and it is represented as "completely accurate" in every regard - a reporting of the very historical events you want to study. You give your $27 to S and S (Carter gets his share) and you have your book.
But now, you read that Carter's closest confidantes and aids, experts in this field, and the very people involved in the events depicted in your book, who knew the facts about who said what in these meetings, who drew up which maps, who offered what, have all written that your book is not true at all - that it is filled with lies and false depictions of the events, that it reflects things that never happened, misrepresents historical events, omits much of the truth, and so on. Indeed, you read from each of them that what Carter has done is complete anathema to them, such that they feel compelled ethically and otherwise to completely disassociate themselves from Carter in every way, to denounce what he has done, to acknowledge that he did it to foster his agenda which requires misleading to advance the position of those enemies of Israel who fund his Center and his work. You realize you have been had, swindled, taken, by an advertising campaign that was not true.
You also come to find out that Simon and Schuster were presented with the truth from these experts and former Carter confidantes who decried the lies, misrepresentations, and half-truths and the danger those posed; but that S and S refused to correct a thing and that Carter went on a speaking tour reiterating that everything in the book was "completely accurate" well knowing that was not so.
Putting aside that the publisher should be mortified and should offer all a refund, you want your money back. You had $27 to spend to buy the book that would give you the facts, you relied on the claim by Carter and S and S that this is what their product did and that was a lie. You want your money back, so you can buy a book that will teach you or to do with what you please. You also would like a judge to say what they did to con you and others into buying something that was not what it was claimed to be was wrong, and you would like them to be punished and deterred from trying to trick other people.
That is all that this case is about. And that is what the conusmer protection laws are all about.
Although the idea of "one more lawsuit" is anathema to most reasonable people, one would think you would support that kind of effort by the little guy consumer just to demand the right and honest thing.
The First Amendment gives Jimmy Carter the right to spew whatever he likes on any subject, true or false and our consumer would agree and does not in any way challenge his right to write this book. Sell it as a novel though, not as the truth concerning the events depicted.
As Dennis Ross and Ken Stein wrote, the errors are not matters of opinion or interpretation - they were plainly and simply falsehoods concerning historical events. It is a shame a former President would demean the office he held by engaging in such conduct, but his right to do so is not at issue in this case. It is about the false marketing and the law's protection of the consumer from such trickery.
And this is before we contemplate the absurdity of arguing that because a few of Carter's aides, in pursuit of their own agenda, have ventured alternative interpretations of events, this somehow settles unequivocally who is spouting fiction and who non-fiction.
Presumably the plaintiffs will have to prove not merely substantive falsehood, but deceptive intent - which will be the more difficult, ironically, the more delusional one takes Carter's views about Israel to be. There is the further point, well made in the response above, that exiling some factual books to the Fiction shelves would create a two-tier regime of free speech, and that would be wide open to equal protection challenge.
Since the suit alleges that Carter and S & S sought to enrich themselves by peddling lies about Israel, it will I assume have to show that this was what they intended. As the US commercial success of the Peters and Dershowitz books suggests, anyone who thought smearing Israel was a recipe for commercial publishing success in the US might reasonably be regarded as misguided.
Since the merits of the suit turn on alleged misrepresentation, it would presumably make the bookstore a party to the alleged injury and therefore potentially liable. We may expect either the annexation of the Nonfiction shelves by Fiction, or legal action by Barnes & Noble and others to safeguard themselves.
The most obvious reason why it will fail, however, is because it would make the First Amendment a dead letter. If plaintiffs can claim punitive damages under consumer protection law by representing that their interests as consumers have been harmed by publications airing political or other opinions they regard as false, courts will either have to find for the plaintiffs or rule on the substance, i.e. the truth-value of the contentions at issue. The floodgates would also open to any amount of vexatious politically motivated litigation. On these grounds alone, the courts will rule against the plaintiffs, who one assumes have deep pockets.
What, this is a policy?
1. Weaver:
It is not a matter of labeling anything "Fiction" or in any way, be definition or otherwise, stopping Carter from advocating anything. Again, the lawsuit is readily available to read. It is extraordinary that it expressly alleges that it is not in any way a challenge to Carter's right to say, write, or do anything he would like about Israel or any other subject. Jimmy Carter is free to advocate to the fullest extent of his desire or the desire of those who fund his Center and whose bidding he does. We have consumer protection laws in our country to - be definition, as you write, protect the consumer. The consumer has the right to expect when he buys a book based on an assurance from the writer and publisher that it is a completely accurate account of historical events, that it is just that - not a fabrication about historical events. I hope you would think there is a difference between the two. I am not talking about matters of opinion or characterization.
As for suggesting that the allegations in the lawsuit "settle() unequivocally who is spouting fiction and who non-fiction" - to whom are you attributing that claim. The plaintiffs make the allegation and ask the court and a jury to "settle" the matter. The publisher should welcome the opportunity.
As for anything being "silly" - it is the idea that "a few of Carter’s aides, in pursuit of their own agenda, have ventured alternative interpretations of events" as you put it. These "aides" were as close to Carter as anyone would be, and beyond that independently they are some of the most respected experts around on these very events. Perhaps you have a suggestion as to what the agenda was for all of them en masse, from different backgrounds personally and professionally, resigned from any further association with Carter and his Center and completely disavowed his book expressly writing that it was because of the falsehoods and misrepresentations, which they found especially shocking coming from a former President of the United States, from whom readers reasonably would have expected the truth. Nothing about it is a matter of "version" or intepretation.
2. Mr. Newey:
I am glad you varied from your general rule to respond this time; but I am not sure why you found this reponse necessary. It is virtually a repeat of what you wrote originally. It also is difficult to understand why just about every point you offer in support of your argument is prefaced by what you "presume" or "assume." The facts of the allegations and the elements of what the plaintiffs have to prove are both simple and easily ascertainable. If you are going to the trouble to write so dismissively, one would think you would first bother to find out both what plaintiffs actually allege and what the law provides and requires for proof. You apparently have done neither. I say that to give the benefit of the doubt; for I prefer to "assume" that than that you deliberately would mislead your readers.
For example, you express a concern at the end of your comment about the First Amendment allegations arising from the court having to either rule for the plaintiffs or go into the substance of the speech concerning the "opinions" expressed in the book. There is NOTHING being challenged by the plaintiffs that is a matter of "opinion." Either the maps Carter attributed to one party were prepared by that party as he says or they were not, as Dennis Ross says. Either other events happened historically as Carter claims or they did not as the others who were there allege. Nothing about "opinion" there. The publisher and Carter made the deliberate and affirmative choice to market the book to those who wanted a true and accurate account of these historical facts - not someone who wanted an advocacy peace or an opinion on what is wrong with Israel, right about the Arabs, etc. These people allege that they were tricked and want their money back and they don't want the defendants doing this to other people on this or any other subject.
As for the problem, as you see it, of a court having to go into the substance of a matter about which a consumer complaint of false or deceptive advertising - that, sir, is at the very nature of the law.
Sooner or later the man who tries to give fetid hot air the quality of expensive perfume stumbles when language itself proves less malleable than his contorted thought. And the lack of self awareness of the pompous fool is revealed in his ineptitude as an editor of his own half cooked ramblings.
Here in Latin America, where the law is a pedant's paradise, where the best lawyers are clever sociopaths, we have a name for the likes of Mr. DavidI: "tinterillo", a play on "tinta" (ink), that refers to their tendency to waste gallons of ink on matters of little substance.
So, my dear Sir, would you kindly prove that you don't belong among such distinguished company (I take the liberty of assuming you want to do so), by discussing the merits of a case against Messrs. Peters and Dershowitz based on the same argument as the one that gave rise to the one against His (former) Excellency Mr. Carter? Otherwise I am afraid the fairness of your intentions will always be in question, as, considering that the aforementioned appear on the original post, they can't be said to be made of straw.
DavidI on the other hand...backs the abolition of a free press. The right wing really sucks the fun out of everything, is this why “Half Hour News Hour” utterly bombed as an 'alternative' to The Daily Show?