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.