This is the 18th extract from Evan Whitton’s Our Corrupt Legal System, available free at netk.net.au/whittonhome.asp. Whitton is a legal historian, an occupation almost as rare as the pig-footed bandicoot.
The story so far.
Justice Russell Fox said justice means fairness; fairness and morality require a search for the truth, otherwise the wrong side may win; truth means reality, what actually happened.
The common law in England (and later its colonies) has always concealed the truth. It began as an extortion racket in 1166, and went downhill from there. Extorting judges and their lawyer-bagmen formed a cartel to increase profits. Judges formally rejected a truth-seeking system in 1219.
Lawyer-politicians have been able to block change to a truth-seeking system since they formed an oligarchy in Parliament about 1350. (Vote 1: Anyone except a lawyer.)
Trial lawyers have been called serial liars because they are adept at sophistry, a technique of lying by false arguments, trick questions etc. Judges have never been trained as judges; they are lawyers one day and judges the next. A US lawyer, Alan Dershowitz, said: ‘… lying, distortion, and other forms of intellectual dishonesty are endemic among judges.’
The adversary system is said to be the Rolls Royce of legal systems; Yale law professor Fred Rodell said it is a racket. Perhaps the Rolls Royce of rackets. It is a taxpayer-funded racket in which trial lawyers control evidence, confuse witnesses with sophistry, spin the process out, and extract more money from clients.
The civil adversary system dates from 1460; the criminal version from the 18th century. Since then, judges have invented a number of truth-defeating devices which make it relatively easy for rich criminals to escape justice.
Major planks of the racket are interminable, and largely useless, pleadings and discovery. Negligence law is designed to get lawyers money from doctors, people in business, industry etc.
Legal academics joined the cartel after a serial liar, Billy Blackstone, began the first law school at Oxford in 1758.
Corrupt libel law
Criminal law has a presumption of innocence for defendants and judges conceal the truth about them.
Libel law has a presumption of guilt for defendants and judges conceal the truth about plaintiffs. Witnesses for defendants can say they believe the plaintiff’s reputation is not good, but they can’t say why.
Libel law has thus protected rogues, including organised criminals, some powerful and respectable, for seven centuries. It began in 1275 when Edward I’s Statute of Westminster invented the crime of Scandalum Magnatum, slandering the magnates, most of whom were robber barons. Truth, at least nominally, was a defence. The legislation was re-enacted in 1378 to include judges, prelates, and certain officials.
The printing press, introduced to England by William Caxton in 1477, threatened the reputations of the powerful. The Licensing Act of 1538 forbade books to be printed without a licence, thus enforcing pre-publication censorship. Scandalum Magnatum was re-enacted in 1554 and 1559 with new clauses on ‘seditious words’ which might cause disaffection against authority. The punishment fitted the crime: ears were cut off for a spoken slur; the right hand for a written slur.
The Star Chamber dealt with some libel cases. Professor Theodore Plucknett said in A Concise History of the Common Law that by the time the chamber was abolished in 1641, ‘it was settled that truth was not a defence’, and that this ‘was a break with Roman authority’.
The corrupt Whig oligarchs were tricked into letting the Licensing Act lapse in 1695. Modern journalism, with its intrinsic threat to the power and corruption of politicians and judges, was thus able to begin on 19 February 1704, when Daniel Defoe’s The Review appeared.
Face prevented the reimposition of the Licensing Act, but otherwise all the apparatus of a corrupt trade of authority were immediately deployed to silence the Press: secrecy – always the bottom line on corruption – taxation, bribery, and libel law. Reporting what was said in Parliament became a crime, and the Review and other journals, including Addison and Steele’s The Spectator, were taxed out of existence in 1712.
Many proprietors were bribed for the rest of the century. Francis Williams, the historian of the British Press, says in Dangerous Estate (Longmans Green 1957): ‘There was hardly a newspaper in those years [the 18th century] that was not in receipt of secret subsidies of one kind or another.
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Prime Minister (1721-42) Robert Walpole used the secret police to pay more than £50,000 (about £5 million at today’s rates) to newspapers and pamphleteers between 1732 and 1742. Agents for Pitt the Younger (1759-1806), the Tory Prime Minister 1783-1801 and 1804-06, paid bribes of at least £5000 [£500,000 today] a year to newspapers at the time of the French Revolution. Nine newspapers got an annual bribe; The Times got £300 (c. £30,000)
Libel law, however, has proved the most effective and enduring method of silencing the Press. Professor Theodore Plucknett says that in 1704 (the year modern journalism began) Chief Justice (1689-1710) Sir John Holt (1642-1710) said ‘it is very necessary for all governments that people should have a good opinion of it’.
Professor Plucknett said it seemed to follow that: ‘ … any publication which reflected upon the Government was criminal … Until 1792 the strict legal theory has been accurately summed up in these words: “A seditious libel means written censure upon any public man whatever for any conduct whatever, or upon any law or institution whatever”.’
Judges had thus made it a crime to write the truth about corrupt politicians and judges, about bad laws, and about institutions run as criminal enterprises, e.g. Parliament and the courts. To ensure conviction, judges gave the verdict in libel cases; jurors’ only role was to decide whether the accused had published the slur.
The Zenger case helped make the US the only English-speaking country in which freedom of speech and information are not legal fictions.
John Peter Zenger, proprietor of The New York Weekly Journal, criticised the colonial Governor, William Cosby, and was tried on a charge of seditious libel on 4 August 1735. Zenger’s Philadelphia lawyer, Andrew Hamilton, admitted that he had published the slurs, but argued that citizens should have a right to tell the truth about public officials, and offered to prove the slurs were true. The jurors insisted on finding Zenger not guilty.
The verdict did not change the law, but it did diminish prosecutions for seditious libel, and it did help to establish the notion that, at least in libel, truth is so important that it should be an absolute defence, and that jurors should give the verdict.
Lord Mansfield (1705-93, 7th in The Legal 100) was Leader of the House when the oligarchy’s bagman, the Duke of Newcastle, was Prime Minister 1754-56. Mansfieled was ineffably obtuse on policy towards American colonists. As Lord Chief Justice (1756-88), he invented a brilliant lie: the greater the truth the greater the libel. That is, the more corrupt a politician or judge is, the greater the penalty for exposing him.
The first academic, Billy Blackstone, supported that lie, but public outrage resulted in Charles James Fox’s Libel Act (1792), which gave libel verdicts to jurors. Professor Theodore Plucknett said the Act ‘was passed in spite of the unanimous opinion given by the judges at the demand of the House of Lords’. The judges apparently feared that jurors would refuse to convict journalists who exposed corrupt politicians and judges.
James Madison’s First Amendment (1791) to the US Constitution stated: ‘Congress shall make no law … abridging the freedom of speech, or of the press …’ but for 173 years the onus of proof in US libel cases, as in other common law countries, lay on the defendant rather than the complainant.
Anthony Lewis (b. 1927) notes in Freedom for the Thought that We Hate – A Biography of the First Amendment (Basic Books 2008) that libel law in several US States had what lawyers called the ‘three galloping presumptions’:
1. … any publication that was challenged in a libel action was presumed to be false; the burden was on the publisher to prove it was true.
2. … damage was presumed. The person suing did not have to prove actual damage, say to his career, as he or she would have to prove in other civil damage cases, e.g. medical malpractice.
3. … the publisher’s fault was presumed.
In New York Times v Sullivan (1964), the Supreme Court voted 9-0 to repudiate those plainly false presumptions, and to rule that the First Amendment implied freedom of information. For the court, Justice (1956-90) William Brennan (1906-97) said public officials could only win a libel case if they could show that the slur derived from ‘actual malice’, i.e. ‘knowledge that the [material] was false’, or from a ‘reckless disregard of whether it was false or not’.
Actual malice was later extended to cover public ‘figures’. Most significantly, NYT v Sullivan shifted the onus of proof from the defendant to the complainant. In other common law countries, the onus remains on the defendant.
Law professor Ray Watterson, of the University of Newcastle (Australia), noted in Media Law in Australia (Oxford, second edition, 1988) that Lord Atkin ‘conceded in Sim v Stretch (1936) that judges and textbook writers alike have found difficulty in defining with precision the word “defamatory”.’ Professor Watterson explained how libel law works:
The mere publication of words defamatory of the plaintiff gives rise to a prima facie cause of action … a plaintiff has the benefit of the presumptions of falsity and of damage. He is not required to prove that the words are false; the law presumes in his favour that they are. The law also presumes that defamatory words cause harm. Thus it is not necessary for the plaintiff to … to prove that he suffered material or financial loss … Furthermore, a plaintiff is not required to establish that the defendant intended to harm his reputation …
Libel law thus oppresses defendants (and the community) outside the US because seven obviously false presumptions unfairly bias the system in favour of plaintiffs. Thus:
Appearance (reputation) is preferred to reality (character). The private right to reputation is preferred to the public right to information. A slur is always false. The author of a slur is always guilty. The subject of a slur is always innocent. A slur is always intentional. A slur always causes damage.
Geoffrey Robertson QC wrote in The Justice Game: ‘London is the libel capital of the world because English law heavily favours plaintiffs … So there have been celebrated cases where newspapers have published the truth, yet lost.’ Sydney cannot be far behind. John Wicklein, reported in the Columbia Journalism Review (November/December 1991):
By a recent count, 142 defamation actions against newspapers, most of them filed by politicians and businessmen, were pending in Sydney, which has been called the libel capital of the world. This is nearly twice the libel suits filed in the entire United States in any one year.
The bias against defendants encourages ‘libel terrorism’ and/or blackmail as practised by Robert Maxwell (1923-91), an organised criminal, asset stripper, newspaper proprietor, and megalomaniac. Libel lawyer David Hooper wrote in Reputations Under Fire: Winners and Losers in the Libel Business (Little, Brown, 2000):
Robert Maxwell learned early in his career that English libel law was an extremely useful device for concealing the truth about his reputation and his business methods. Defendants had to prove the truth of what he had striven successfully to cover up, and that was both costly and difficult … Over a period of 30 years Maxwell developed a policy of using the law of libel to terrorise his opponents. His libel actions covered every aspect of his career: publishing, politics, newspapers and football. As his business empire collapsed, so he fired out his last bevy of writs to muzzle the press.
Maxwell won only one libel action, but he was able to use libel terrorism to rob the public of their right to information for three decades before he jumped, or was pushed, or fell off his boat and drowned in 1991.
SLAPP suits (strategic lawsuits against public participation) can amount to libel terrorism. Julian Petley noted in Free Press 108 (Jan/Feb 1999) that professors Penelope Canan and George Pring, of the University of Denver, invented the acronym when they noticed ‘that corporations were increasingly threatening individuals in the environment movement with actions for defamation, conspiracy, invasion of privacy, interference with business, etc’.
Liars who got libel money
The unfair bias against defendants also means that liars and their lawyers get money from honest soldiers for truth. A short list:
Pianist Wladziu Valentino Liberace, who falsely swore he was heterosexual.
British politicians Aneurin Bevan, Dick Crossman and Morgan Phillips, who falsely denied they were ‘pissed as newts’ at a conference of Italian Socialists in Venice.
Lord (Bob) Boothby, who falsely denied he had a sexual relationship with an organised criminal, Ronnie Kray.
Dr John Bodkin Adams, who falsely denied he was a serial killer of Eastbourne widows who changed their wills in his favour.
Jeffrey Archer, who falsely denied he had sex with a prostitute.
Juni Morosi, a secretary, who falsely denied she had sex with the Deputy Prime Minister of Australia, Dr Jim Cairns.
Fred Hanson, Police Commissioner of New South Wales, who falsely denied he was corrupt.
Murray Farquhar, chief Stipendiary Magistrate of New South Wales, who falsely denied he was corrupt.
Sir Les Thiess, a Queensland developer, who falsely denied he bribed the Premier of Queensland, Sir Johannes Bjelke-Petersen.
Sir Bob Askin (1907-81, NSW Premier 1965-75, falsely denied he was an organised criminal and would probably have got money from an honest politician, John Hatton, but died before the case got on.
In 2005, Australia’s first law officer, Philip Ruddock, announced a plan to allow people to sue from the grave. I reminded him in Justinian that Voltaire observed in 1785: ‘We owe respect to the living; to the dead we owe only truth’, and that his legislation would inevitably be dubbed the Askin/Murphy clause in honour of Askin and High Court Justice Lionel Murphy, who was also a criminal. Ruddock eventually dropped the plan.
‘Libel tourism’ is the practice of suing US authors and publishers in London because in the US the complainant has to prove the slur is false, but in England the defendant has to prove the slur is true. However, US judges have taken the view that libel defendants cannot get justice in Britain. US courts usually enforce orders made by overseas courts but not when the orders are based on laws ‘repugnant’ to US law.
In 1997, a Maryland court refused to enforce a British libel verdict because, on fundamental issues of free speech and a free Press, British law ‘is totally different’ from First Amendment principles ‘in virtually every significant respect’. But if publishers have assets in England, they have to pay.
Roman Polanski, convicted paedophile, fugitive from US justice, and libel tourist, sued New York-based Vanity Fair in London. The organ had reported in 2002 that in 1969, days after Polanski’s actress-wife Sharon Tate was murdered, he tried to seduce a Swedish model in Elaine’s restaurant by promising to get her into films.
At the trial in 2005, the judge, Sir (a knighthood is automatic for High Court judges) David Eady (b. 1943), concealed from the jury the full details of Polanski’s offer to get into Vogue the girl, 13, in the paedophile case.
Polanski gave evidence by video link from Paris. When the jury found in his favour, Eady gave him £50,000; Vanity Fair’s costs were reported to be some £1.5 million.
Khalid bin Mahfouz (1949-2009) owned 20% of the Bank of Credit and Commerce International (BCCI) between 1986 and 1990. BCCI engaged in doubtful practices, including fraud, bribery, money-laundering, arms trafficking, and supporting terror.
Mahfouz, who lived in Ireland and was worth US$3.2 billion, sued or threatened to sue 33 people who accused him of knowingly supporting terrorism. He thus contrived to be at once a libel terrorist, a libel tourist, and a libel lawyer’s dream.
Funding Evil (Bonus Books, 2003), by a New York scholar, Dr. Rachel Ehrenfeld, was not published in England, but 23 books got into the country via online purchases. Mahfouz sued in London.
Dr Ehrenfeld did not waste money on defending the action in 2005. In her absence, the libel judge, Sir David Eady, specifically rejected assertions that Mahfouz was forum shopping; gave him US$230,000; and ordered Dr Ehrenfeld to apologise to him and destroy all existing copies of her book.
Reacting to the Mahfouz-Ehrenfeld case, state legislators in New York unanimously passed a law to protect New York authors and publishers against libel tourism in 2008.
Signing the legislation on 1 May 2008, Governor David Paterson said:
‘The statute combats such “forum shopping” in two ways. First, it bars New York courts from enforcing a foreign libel judgment unless the country where it was decided grants the same or better protection as US standards for freedom of speech.
‘Second, it expands an individual’s ability to have a court declare a foreign libel judgment invalid in New York. Without this statute, an author could be forced to live indefinitely under the pall of a libel judgment, deterring publishers from disseminating that author’s work.’
Rory Lancman, a member of the New York Legislative Assembly said: ‘Today we reaffirm New York’s place as the free speech capital of the world.’
A Free Speech Protection Act was introduced into the US Congress in 2008. If enacted, the legislation would allow US authors and publishers to countersue and gain triple damages if a jury found that a foreign suit is part of a scheme to defeat the constitutional right to free speech.
Blackmail (theft by extortion)
Lawyers and clients get money in cases of alleged negligence and libel by pitching doubtful claims at a sum lower than the cost of litigation. The calculation is that the target company will make a commercial decision to submit to the extortion.
Brett Dawson says a woman who asked a married man to pay her to keep quiet about their adultery could be charged with extortion, but if she went through a lawyer, it would be regarded as a legal settlement.
US workplace disputes: not a fair go all round
It was in a workplace dispute case in 1971 that Gilbert Manuel, a NSW Conciliation Commissioner, enunciated the Manuel Test, ‘a fair go all round’ for employee and employer.
US juries tend to be unfair to defendant employers. Jurist Walter K. Olson says workplace disputes take up roughly half the business of US civil courts.
In 1993, Jerold Mackenzie, who worked at the Miller brewery in Milwaukee, related an incident from Seinfeld, a television comedy of manners, in 1993. The ‘office scold’ complained; Mackenzie was dismissed.
Under the Manuel Test, Mackenzie might have got six months’ wages, perhaps $30,000, or been reinstated on two conditions: that he apologise to the lady, and that she stop making a nuisance of herself.
In Mackenzie v Miller Brewing (1997), Milwaukee jurors gave Mackenzie US$26.6 million. His San Francisco lawyers, Littler, Mendelson, presumably got at least US$8 million. Other verdicts:
An American Airlines manager got $US7 million for ‘discrimination’ when she was not promoted.
A Texaco female employee got $US20 million when she was not promoted.
A sacked employee got $US1.4 million for ‘emotional pain and trauma’ resulting from an unfavourable reference.
A New York man dismissed for engaging in auto-eroticism in his office got $2.1 million when jurors agreed that his employer had negligently failed to protect him from sexually harassing himself.
Next. Larceny by trick: tax evasion
