The conflict between freedom of speech and the right of reputation, is a typical example of compromise, the balance between public interests and private rights. Recently patiently read some books and case, understanding America legal understanding of the two kinds of interests and balance, how to define the concept of balance, responsibility, let me have a deeper understanding of "justice" is a word. The following is the experience summary and some experience. (write very long, only for those interested in the legal details of people read)

USA law of libelVs.Freedom of speech, for different object, a total of four sets of standards, according to the time order, respectively:

The common law standard, the first amendment to the constitution, New York Times rules, Gertz rules.

 

The common law standard

Malicious level American law (Mens rea) into5Grade: deliberate, intentional, reckless, negligence, fault.           

From Shanghai to Beijing, all the way to hit, this is called deliberate.

Occasionally see an enemy, the spur of the moment to hit, this call to.

Drunk driving, hurricane70Code hit people, this is called a reckless.

See the beauty of a distracted hit people, this is called negligence.

Observant of the traffic rules also hit, this is called the no fault.

The most common civil case is the fault liability, who is who is responsible for the mistake. This fault is refers to "negligence" malicious level or higher.

The common law of defamation adopts strict liability, also known as the no fault liability. That is to say, as long as someone that you really spread about his defamatory statement, regardless of whether you are wrong, you have established your defamation, malicious level will only affect your level of responsibility.

 

The burden of proof:

Confirm that you "spread the relevant comments" the burden of proof the plaintiff, is also spread the person of speech.

For proving the "word does not accord with the facts," the defendant -- also spread the speech person -- the burden more, because the basic principle of civil law is the "no punishment in doubt case", "defamatory statement" pre assumed to be false, unless there is evidence to prove the opposite conclusion.

The plaintiff need not prove substantial damage (e.g.1909Years ofPeck v. Tribune CoCase), and can get beyond their actual damage compensation (this is the deterrent punishment).

 

Avoid defamation reason:

Comments: real American constitutional "real talk" to privilege protection, as long as you can give clear evidence of the truth of what you said, you can exempt defamation (but still may be privacy violation responsibility). And the evidence must be in before your speech.

Absolutely/Condition: certain privilege positions in particular occasion or from having its positions within the privilege to slander responsibility. For example, the Council on legislation, all speech, members of the court, all speech lawyer, supervisory officials in its supervisory powers of speech, from defamation, regardless of whether the malicious. This is in order to avoid these people in the fight for the public interest of any menace from the "rear".

 

The core principles of common law is "private rights", the actual meaning of common law libel standard is: as personal rights, reputation rights prior to the right of expression, personal expression not to harm others. Let us try to talk less about other people's private affairs, even to talk about also should be very careful. Freedom of speech is a kind of safeguarding the public interest of power, rather than meet the boring gossip power of desire.

 

The common law is applicable to the private sector does not involve the public interest. The landmark case1985Years of "Dunn and Brad Streeter Co. v. Green Moss construction company".

 

In this case, a staff of the defendant company falsely issued a construction company with the bankruptcy of the report. The majority of judges, the degree of credibility construction company only related to the interests of its clients, not the question of public interest (Note: the construction company customers for the Real Estate Company, and Mengniu this to sell their products directly to consumers is different.) This case established at the same time: non media also applicable media defamation law standard. Therefore, in the network era that "since the media" can be treated as media.

 

 

The first amendment to the Constitution

 

The legal source of free speech America is the first amendment to the Constitution (also known as the "bill of rights" first):

"Congress shall make noOn the following mattersLaw: establishment of religion, or prohibiting the free exercise thereof;Abridging the freedom of speech and freedom of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

 

America Supreme Court judicial interpretation is highly flexible, it can not rigidly adhere to the legal provisions of the literal meaning, through "grasp the spirit", to expand the scope of application of law. For example, in the original "Congress," can be interpreted as all levels of government. "Freedom of speech" is often interpreted as prior limit some speech content (such as setting sensitive word, sensitive topic, no thoughts, theory etc.).

 

Of note, the bill is used to bind the government, rather than the media and personal, for example@Old Shen Envy you look handsome, put your micro-blog titles, the individual behavior is not against the freedom of speech. Freedom of speech just protect your speech is not subject to mandatory constraint, but does not guarantee that you say, the media refused to part of a speech is the freedom of speech. You will not be allowed to speak, you can own to do a media (newspapers in no country).

 

In public affairs, freedom of speech is not only to protect the right of speech, but also protect the wrong words, especially for the government's critical or defamatory remarks. This is because no one has the qualification and ability, to determine which one is slander, in order to pursue the "correct", discusses the process of the "wrong" must be tolerated and even encouraged. But this tolerance is limited, the court has a "special balance" principle, namely when the freedom of speech, serious damage to the other public interests (such as national security, justice, freedom of Religion), court may on balance, inclined to the more important public interests.

 

For example, I published a book "conspiracy" America government in America, speak American government planned the World War II, planning911The world financial crisis, planning. The government can make statements, produce evidence, refute my argument, let the government spokesman and our public debate. But you can't forbid me to book publishing, more can't grab me up, this is unconstitutional, I can go to the Supreme Court against the federal government (there have been similar cases).

 

That is to say, when the object of my speech is the public power, especially the government, I basically is exempt from any liability, whether I said is true, for what purpose. Because, you -- the government, have a duty to let everyone know clearly what you do, why to do so, if I to your behavior produced a misunderstanding, it is your responsibility.

 

New York Times rules

 

With the establishment of the rule1964Years of "New York Times v. sullivan". It is a kind of "de vest" tactical officials present: on behalf of the government of the time, the provisions of the Constitution and I can't get you in trouble, but I put the government's Vest off, as individuals, can according to the common law standard sued you for libel. (Is it right? Little deja vu? This is not double up you. So, no matter which country, official's minds are more or less the same, the so-called good officer, are forced out of the system.) As we all know, news reports are difficult to 100 percent accurate, while the common law of defamation is a strict liability, officials just prove false news, basically a report of a quasi. Then the media was a tragedy, there are several well-known newspaper for libel ridden to fail.

 

New York Times is such a miserable media, to its official name is Sullivan. A civil rights organization in the newspaper ad, criticism of government behavior inconsistent with the facts, which referred to a "South offenders" is thought to refer to Sullivan. In state court ruling in the case, New York Times, was sentenced to compensation50Million dollars.

 

New York Times appealed to the Supreme Court, the lawyer is a master of the school constitution, one at the state ruled unconstitutional: the core idea of the first amendment of the constitution is, so we can rest assured to criticize the government, since you have to wear the vest, propose that is inevitable, if you don't wear ah. State courts don't we hit wear vests, essentially makes us not to criticize the government, it is unconstitutional.

 

1964Years3Month, the Supreme Court9Justices to9:0Rejected state court decisions, but decided not to use the "common law" public affairs, and replaced by the "New York Times rules":

 

Media reports of public behaviour of public officials, unless the government officials can clearly demonstrate the essence of "malicious" (MediaActual malice), and their actual benefit so hurt, otherwise it shall not require the media compensation.

 

"There are three important factors New York Times rules": objects, the burden of proof, substantial malicious.

 

Applicable objects:

 

Applicable objects for initial public behaviour of public officials (excluding those who had nothing to do with the public interest private behaviors, such as religion, sexual orientation, if the report private behaviors, according to the common law of defamation standard).

1966Years, in caseRosenblatt v. BaerIn the concept of public officials, are extended, in addition to elected officials, including a former government employee, officer candidate, as long as the representative, or control a part of government authority on their surface to ability.

1967Years, in caseCurtis Publishing Co. v. ButtsIn the Supreme Court, to5:4The range of application will be "New York Times rules" extended to public figures(Public figure). And established the judgment of legal procedure "is a public figure" to go through the (usually adopts the questionnaire as a reference). Xiao Han said "suspected public figure" is a legal cautious statement, as all the criminals in the pre sentence is suspect.

1971Years, caseRosenbloom v. Metromedia, IncFurther expansion of the "New York Times rules", will be the first substantial malicious standardFor an ordinary person, the plaintiffRosenbloomThis is neither government officials, but also non celebrity, but a case the defendant (later acquitted). Extended concept actually "public figures" to public attention event (Event of public or general interestParty. One example is Wu Ying, Wu Ying case involves Chinese judicial and financial reform, so it is widely concerned.

 

Public figures category adjust in the later case, divided into "public officials", "political public figures" as everyone knows, "public figure", "limited purpose public figure", "non voluntary public figures" and the echelon, to limit the media abuse their constitutional privileges.

 

The burden of proof:

 

The plaintiff shall bear the burden of proof more, not only to prove that there are other substantial malicious and is clearly demonstrated (common law requires the media since the card without malice), but also clearly demonstrates (common law only requires the preponderance of the evidence).

 

But the average person easy to neglect, according to the "functional equivalence" principle, the plaintiff has also obtained the proof ability more. Originally, the media has the constitutional prerogative -- testimony immunity, the editing process confidential. In applying the "New York Times rules", according to the1979"Herbert v. Landau", the media are deprived of the privilege, the editing process will be open to the plaintiff, the burden of proof of plaintiff "to facilitate the substantial malicious". Do more than words to Han, Han Han will have the right to read it related computer and network records, asked Fang and I witness about his sources, he how to evaluate the credibility of the information, and who discussed how to choose, how to edit, information, and the intention of trade-off information.

 

Then, the plaintiff must prove actual harm (does not require the common law), and shall take beyond their by actual damage compensation (on others privacy, by the common law restrictions to encourage discussion of public affairs).

The actual damage including reputation, not including the emotional damage. For example, cartoonists can put Kong Qingdong painted a dog, which is pure sarcasm, normal people can't understand as a cartoonist in the rumor that "Kong Qingdong is a dog", so this cartoon only produce the emotional damage, but no real harm.

 

Substantial malicious:

"Substantial malicious" malicious equivalent to the level of "intentional". The Supreme Court's judicial expression is "knowing the controversy in the statement is not real or without taking into account the statements are true and released to the public". "Substantial malicious" is a "subjective" criteria, in fact you can not directly prove others inner intentions, so the need for criteria objective. The Supreme Court cited several can confirm "substantial malicious" behavior:

1. The speech for the nonce or imagining (including cannot explain the source). For example1991Years of "Mason v. New York People magazine case", the reporter mark a paragraph with quotation marks, said this is the plaintiff in the video's words, but in fact has been modified, and distorted the original. Convicted of libel.
2. Based on an anonymous telephone speech failed to confirm the essence (equivalent to a situation. No one from the head0To fans and unclaimed micro-blog account message should also belong to this column.)
3. Intentionally veer away from the truth.1989Years of "Hart-An example of Hanks Communications Co. v. Connaughton case ": in the news release, the plaintiff to the defendant a tape, the contents of this may clarify the facts. Listen to the tape and the defendant in the absence of the content of the case, the news release. The defendants were found guilty of libel was founded. This case as the standard, not check card to release the suspicious information, the malicious levels roughly as "reckless", not enough to constitute "substantial malicious". And refused to see may prove the truth of evidence, it constitutes a "substantial malicious".
4. To prove that the defendant knew relevant statement untrue. In the1979"Herbert v. Landau", the Supreme Court decision: if the inspection of the editing process, can find the key evidence in support of the plaintiff therein, the defendant be discarded or distorted, it can also be proved substantial malicious.

 

Finally, this standard is based Gertz rules, the purpose is to restrict media privilege, urge the media self censorship, the balance between media and public figures of authority, significantly reduces the proof of "substantial malicious" threshold. From the practical point of view, the media due to time or lack of news channels, not found on some closely related with public interest news can be reported (for exampleWLJThe event, because it is difficult to obtain reliable information, no matter how credibility, can first reported.). But should not have enough information, not in accordance with the reliability of information and its sources, but in accordance with strong bias trade-off information.

 

Gertz rules

 

New York Times rules is a great victory for freedom of speech, but its establishment10During the year, the scope has been enlarged, caused widespread concern. Without him, as a "public figure" too easy. involving public interest is called public figures Teaching and educating teachers, doctors to mend his ways to save him, car driver accidentally can kill a lot of people, what occupation do not involve the public interest? visibility high, called public figures This year the famous not too easy Oh, can obtain the success. In any industry, even in the "tea sister", "Xi Li Ge" this one post on the famous also many.

When the media can report "involuntary public figures also exempt" defamation, media to get a license to kill. "". The media to the whole of you, can hype your visibility, or making a public issue related to you, then you for libel, this is a private than public interests of Americans unbearable.

1974Years, just New York Times rule set10Year, in "Gertz v. Welch case", the Supreme Court of public figures is redefined, dividing the echelon, distinction, narrowing the scope of the use of "New York Times rules", take the case of ordinary people who rules involving public events:

 

States can decide to slander, but strict liability are not allowed for libel, and shall not exceed the actual loss to the plaintiff's compensation.

 

That is to say, the public reported the incident in the media when, no matter who is not involved, the application of common law of defamation standard. But for ordinary people, also do not require "New York Times rules" of the "substantial malicious" standard. Between strict liability and substantial malicious, states can according to the specific case, select "reckless" and "negligence" two malicious level as the standard.

 

America states have enacted the news media industry rules, for example:

1. News release needs to be verified by independent sources more than two.
2. If the source is very reliable, such as government issued a formal message, can not be other channels to verify (if the message is false, the responsibility borne by the government).
3. If the reporter to the field or the parties to the direct investigation of the news at first hand, can think of no fault.
4. On the controversy between two or more parties must listen to the story, not only listen to one side of the story and reports.

 

If the media strictly in accordance with industry rules, that is "no fault", even if there is false in the report, but also from defamation. Conversely, according to the degree of deviation from the rules of the industry, can be judged the malicious level "neglect" or "reckless", according to state law, can be prosecuted for defamation.

 

The Goetz case has greatly improved as a "public figure" threshold (the following excerpt from "mass communication law")

First, only appear in the news value and some reports or reports on newspapers, not make sb the public figure;

Second, social, occupation or industry wide fame itself does not make a public figure, except the very famous so that their names make known to every family;

Third, forced into trial (either civil or criminal) does not of itself make a public figure;

Fourthly, those who slander charges can not make all their victims reputation based on his behavior and the justification of their own;

Fifth, simple application, acceptance or benefit from public research funding can not make a public figure;

The six, to meet the "Gates" case became embroiled in controversy or debate public center of the standard, problems or arguments about the dispute must be real debate dispute, the results must be significantly affected part in public or in the public.

Seventh, to meet the "Gates" case by media rights standards, use of media should be the routine and continuous.

Another effect of TZ case is to establish the The fact that view The separation of rules. All speech is divided into two parts: facts and opinions, clear the "constitution protects only the true speech".

View is judged, subjective feeling, it is not possible to be false, only the facts can be falsified. So the true speech refers to those "Based on the true facts, regardless of" what views "remarks. For example, "I saw an officerXXXIn the door nightclub pictures, I'm sure he prostitutes, he is the son of a bitch". "I think he must be to the" subjective inference, "he is the son of a bitch" is a subjective feeling, "I saw a picture" is the truth, confirmed this fact is to take out the photo. As for this photo isPSI feel, inference, is reasonable, it will not affect the statement is true based on the facts.

 

Summary

To summarize the applicable object of four standard and standard (according to strict liability standard lenient):

The 1 First Amendment to the constitution. Object: the public authority, public affairs,Responsibility: regardless of motivation.

2 New York Times rules.Object: public figures,        Responsibility: substantial malicious.

3 Gertz rules.    Object: ordinary people, public affairs responsibility: fault liability.

Standard 4 common law.  Object: private affairs,        Responsibility: strict liability.

Most of us are most often is met third criteria: we are not official, not a star, not make known to every family, online or in certain circles may be a little fame, published some opinion on public affairs, made "three good" student, young, achievement, participated in the Expo, "etc. activities. The accuracy of media reports have the responsibility to carefully check the message we participate in public activities. If the media accountable, or errors, we also can't blame the media too much. This is for us and for the media both more equitable scale.

 

The differences between China and America

Finally want to talk about the differences between China and America, and the influence of libel standard.

 

1. In American, freedom of speech is a kind of public interest is very important. Many people think that, all other public interests must rely on freedom of speech to maintain. So everyone can enjoy the freedom of speech brought the public interest at the same time, to sacrifice some personal interests for granted. In Chinese, our freedom of speech to us as the public interest? Not allowed to criticize the government and officials, the lack of democratic mechanism makes the lack of actual deterrent force of public opinion, freedom of expression can give us is far lower than it was in the public interest American level. In this case, the "public figures" for freedom of speech to the same level of sacrifice, I see no justification at. And the transfer line of sight generated substantial weakening of public power, the real effect of supervision of public opinion.

 

1. The key difference between public figures and common people is not how much the public interest. A national chain supermarket manager, involving the public interests may be far higher than an entertainment star, but the former unless the make known to every family, otherwise can only be "involuntary public figures", applicable Gertz rules. The key to the ordinary people's public figure difference is that: in the face of defamation "self-help ability". The public figure who has access to the media more opportunities and channels, more say, government officials can publish government endorsement of the statement by the official channels, can eliminate the effect of libel. But this "self-help" rely on freedom of speech in the larger environment, in China, public figures "self-help" is not reliable, even some aspects as ordinary people, so we should not be like USA, let them emerge of itself and perish of itself. Like a group of people fell into the water, the lifeguard of course first save those can't swim, swim to stay for a while in the water. But if there was a shark in the water, can not swim is not so important.