Defamation Reform:
Orders to publish declarations of falsity are compatible with freedom of speech

Professor Michael Chesterman responds to Press Council arguments against the proposed declaration of falsity provisions of the Defamation Act NSW 1996.

[Since the NSW Law Reform Commission published its Report on Defamation last October, a number of objections have been raised to one specific recommendation in it. This is the recommendation that defamed plaintiffs who can prove that what was published about them was both defamatory and false should be able to obtain, alongside a judicial declaration to this effect, an order by the court that the declaration be published by the defendant in much the same way as was the original defamatory statement. It has been argued, notably in the Australian Press Council's Submission to the NSW Attorney-General Responding to the Report (29 April 1996), that a court order of this nature would infringe accepted principles of freedom of speech, and also that evidence might later emerge to show that the defamatory statement was after all true, thereby undermining the legitimacy of the procedure of judicial declaration. In this article, Professor Michael Chesterman, Professor of Law at the University of New South Wales, who was one of the NSW Law Reform Commissioners responsible for the Defamation Report, argues that different but well-accepted conceptions of free speech, and of the role and function of judges, lead to quite different conclusions about orders to publish declarations of falsity.]

Freedom of speech is a very important and very precious attribute of a democratic society. At its core is the proposition that the state should never have the power to punish or restrain the dissemination of ideas that are or might be critical or subversive of the established order. In the words of the United States Supreme Court in the famous case of New York Times v Sullivan 376 US 254 (1964), the guarantee of freedom of speech and the press in the First Amendment to the U.S. Constitution requires that debate on issues of public interest or importance must be "uninhibited, robust and wide-open". Often the metaphor of a "marketplace of ideas" is invoked to describe how public debate should take place. In such a marketplace, false or wrongheaded statements are met not by state censorship or punishment but by competing statements which come closer to the truth, so that ultimately truth drives our falsity.

Does this inevitably mean that any order by a court (or other state agency) that a newspaper, broadcasting station or other contributor to public debate must publish a specified statement unequivocally infringes free speech in an unacceptable way? This is certainly a common view. As the Press Council Submission points out, the U.S. Supreme Court endorsed it in striking fashion in Miami Herald v Tornillo, 418 US 241, decided ten years after Sullivan. A Florida statute required, on pain of criminal penalties, that any newspaper which published criticism of a candidate for political office must, if the candidate so required, provide equal space for him or her to publish a reply. The Miami Herald refused to comply with a candidate's demand for a right of reply, arguing that the statute infringed its First Amendment rights. The Supreme Court agreed, declaring that governmental intrusion into editorial autonomy, into the right of editors to exercise their independent judgment as to what they should publish, was incompatible with the concept of free speech and free press.

This ruling seems at first sight to be straightforward and to resolve the issue as far as the proposed NSW regime of compulsory publication of declarations of falsity is concerned. An editor or producer whose newspaper or program has been compelled by a court to give much the same space to the text of a declaration of falsity as he or she gave to the defamatory statement which the court has found to be false has suffered a significant impairment of editorial autonomy, constituting an infringement of freedom of speech.

There is however a different way of looking at this issue, one which, drawing on points argued in the Tornillo case itself, leads to another conception of freedom of speech.

The Supreme Court's opinion in Tornillo contains a number of phrases which usefully encapsulate this alternative approach:

The appellee [i.e. the political candidate who had been criticised] and supporting advocates of an enforceable right of access to the press vigorously argue that government has an obligation to ensure that a wide variety of views reach the public ... . In the past half century a communications revolution has seen the introduction of radio and television into our lives, the promise of a global community through the use of communications satellites, and the spectre of a "wired" nation by means of an expanding cable television network with two-way capabilities ... . Newspapers have become big business and there are far fewer of them to serve a larger literate population ... . Much of the editorial opinion and commentary that is printed is that of syndicated columnists distributed nationwide and, as a result, we are told, on national issues there tends to be a homogeneity of editorial opinion, commentary and interpretive analysis ... . In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues ... . The First Amendment interest of the public in being informed is said to be in peril because the "marketplace of ideas" is today a monopoly controlled by the owners of the market.

The Supreme Court neither accepted nor rejected this description of American media in he 1970s, much of which was drawn from a recently published Report (Twentieth Century Fund Task Force Report, A Free and Responsive Press, 1973).

Two important aspects of free speech are, on this account of things, the right of all members of the public (a) to gain access to the media in order to contribute to public debate and (b) to be informed about matters of public interest from a diversity of sources. These themes are prominent in the High Court of Australia's recent decisions inferring an implied guarantee of freedom of political discussion from the Commonwealth Constitution's implicit foundation in representative democracy. It follows that, to the extent that media concentration and the individual free speech rights of editors and producers to determine what is published jeopardise individual participation in debate and a diversity of participants, speech within society as a whole is less free.

The Tornillo decision has in fact been criticised by some eminent American First Amendment scholars (for example, Lee C Bollinger and Cass R Sunstein, in recent books respectively entitled Images of a Free Press and Democracy and the Problem of Free Speech) for giving undue weight to editorial autonomy at the expense of these competing considerations. The Court's refusal to countenance even a limited impairment of the autonomy of newspaper editors contrasts sharply with its endorsement in other cases of regulatory control over the content of material broadcast by the electronic media.

How does this alternative conception of freedom of speech bear upon the recommendation that a judicial declaration of falsity must be given equivalent prominence by the media organisation which published the false defamatory statement if the defamed person so requires? The answer is that it provides a basis for an argument along these lines:

1. Assuming that the defamatory statement itself was relevant to a matter of public interest (for example, the honesty, credibility or competence of a politician, senior public servant or prominent figure in business), the public has an equivalent interest in being informed of other views on the issues involved, including the findings of a judicial investigation into the truth or falsity of the statement. In this way, the collective public interest in being informed about issues of public interest from a diversity of sources is promoted.
   
   
2. The defamed person, by insisting that publicity be given to the declaration, achieves something in the nature of personal contribution to the public discussion of the relevant issue. To a limited extent, he or she has been permitted to gain access to the media in order to contribute to public debate.
   
   
3. The limited impairment of the individual speech rights of the media publisher of the initial defamatory statement is justified by virtue of the enhancement of other free speech interests achieved by (1) and (2) and because in addition the injury done to the defamed person's private interests is repaired through vindication of his or her reputation.

In conclusion, four more points in reply to arguments raised against the recommended procedure for publicised declarations of falsity:

1. Two US Supreme Court judges in Tornillo stated that in their view the decision in the case "implies no view upon the constitutionality of 'retraction' statutes affording plaintiffs able to prove defamatory falsehoods a statutory action to require publication of a retraction" (Brennan J, with Rehnquist J concurring, at 249-250). (The Press Council Submission's reference to this reservation attributes it to Brennan J only.)
   
   
2. The argument in the Submission that new evidence may prove the declaration of falsity to be wrong, thereby undermining public confidence in the courts, can be countered in two ways. First, the declaration can always by expressly or implicitly framed as the court's finding based only on the evidence brought before it. Secondly, this phenomenon is not at all new: there are already many occasions when the initial findings of a court are overturned on appeal or in a rehearing.
   
   
3. A court order to a losing media defendant to publish a declaration of falsity simply requires it to do what most media organisations do regularly as part of their function of keeping the public informed, i.e., report the outcome of open court proceedings. There is no requirement of retraction or apology: it is a reporting obligation only.
   
   
4. In the United Kingdom, the Code of Practice which is endorsed and administered by the Press Complaints Commission requires, in Clause 1(iv), that newspapers report fairly and accurately the outcome of any defamation proceedings brought against them. The U.K. press has, in effect, agreed that this form of reporting is an obligation inherent in responsible press behaviour and should apply generally, not just when an individual media defendant is prepared to comply with it.

Professor Michael Chesterman

see also
Index of defamation material on the website

Letter to the Editor
Prof Michael Chesterman on contempt laws

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