"American Defamation Law: A Twisted Subject."
Richard Riley, “Economic and Intellectual influences in the Debate over the Ratification of the U.S. Constitution.” [PPT]
Shane Stinemetz, “The War in Afghanistan: Counterinsurgency Operations in Kunar and Nuristan” [PPTX]
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“Some of their fellow-citizens acquired a power over the rest which might truly have been called aristocratic, if it had been capable of invariable transmission from father to son.”PUBLIC OFFICIALS
—Alexis de Toqueville (1840, 4)
Gained interest because their occupation affects the public at the national, state, and/or local levelPUBLIC FIGURES
Recognized for knowledge, leadership skills, and charisma
Gained interest because their occupation interests the publicWhat is Defamation?
“The glamorous impersonates the ordinary.” — Laura Mulvey (1975, 205)
False & derogatory statements that injure reputationThe Twists
Slander & libel
Tortus = twisted
The First Amendment vs. English common lawEnglish Common Law Tradition
Private Individuals v. Public Figures/Officials
1275 statute outlawing slander between King & peopleDefamation in the United States
Penance vs. temporal grievance
Court of Star Chamber & birth of libel law
Importance of reputation in English society
“Congress shall make no law. . . abridging the freedom of speech, or of the press.”Officials Become Public
The Sedition Act of 1798
Common law remained intact
Prior to 1896—no press space in White HousePres. Kennedy as a Public Official
Appearance of mass-circulation press
Theodore Roosevelt holds press conferences
After Watergate—shift in public interest
The masquerade of Camelot in the 1960’sEmergence of Public Figures
Post-Watergate—reality of Kennedy’s private life
The Hollywood Studio MachineNew York Times v. Sullivan (1964)
The growth of tabloids
The facts of the caseTime, Inc. v. Hill (1967)
Common law v.s. the First Amendment
Public officials & actual malice
A new American standard
Facts of the caseCurtis Publishing Co. v. Butts (1967)
Not a libel suit
A matter of public interest
Hill as a public figure
Facts of the caseGertz v. Robert Welch, Inc. (1974)
Butts as a public figure
Application of actual malice standard
Facts of the casePhiladelphia Newspapers, Inc. v. Hepps (1987)
Gertz as a private citizen
Actual malice standard inapplicable
Treatment decided by the states
Facts of the caseAmerican Defamation Law and the Federal System
Common law and the burden of proof
The most constitutionally protected entity
Private citizens bear the burden
Milkovich v. Lorain Journal Co. (1990) — a frameworkThe Internet
Carol Burnett v. National Enquirer (1981) — kinds of malice
The categories of public officials and public figures
Differences in degree of fault
Internet intermediariesRemedies & Damages
Communications Decency Act (1996)
Widespread anonymity; 55% of bloggers use pseudonyms.
An advanced version of a classical forum
Monetary awardsFive Key Issues
First Amendment vs. common lawProposed Solution to Issue One: The First Amendment vs. Common Law
Public vs. private citizens
Differences between states
Defamation and the internet
Insufficiency of remedies
Support New York Times interpretation of First Amendment & common lawProposed Solution to Issue Two: Public vs. Private Distinction
No actual malice requirement in declaratory relief claims
Categories neededThoughts on Issue Three: Differences Between States
Recommend the courts redefine the major categories based on today’s social constructs
Importance of enabling each state to craft its own defamation lawProposed Solution to Issue Four: Defamation & the Internet
The national framework holds the law in place
Support Solove’s proposal for exhausting informal mechanisms when the defendant is not a repeat offender or part of a broadcast or print-media publicationProposed Solutions to Issue Five: Insufficiency of Remedies
Support a loser-pay-all systemFinal Thoughts
Believe declaratory relief issued in the same publication the defamatory statement was released as the most sufficient remedy
The twist in defamation law cannot be fully straightened because of its very nature, but perhaps, it can be slightly untwisted with new revision of the old law.Major Sources
Collins, Matthew. 2005. The Law of Defamation and the Internet. New York, N.Y.: Oxford University Press, INC.Major Sources
Curtis Publishing Company v Butts, 388 US 130 (1967) <http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=US&vol=388&invol=13> (accessed 20 September 2009).
Gertz v. Robert Welch, INC., 418 US 323 (1974) < http://caselaw.lp.findlaw.com/cgi- bin/getcase.pl?court=US&vol=418&invol=323> (accessed 19 September 2009).
Kupferman, Theodore R. ed. 1990. Defamation: Libel and Slander: Readings from Communication and the Law, I. Westport, Connecticut: Meckler Corporation.
Milo, Dario. 2008. Defamation and Freedom of Speech. New York, N.Y.: Oxford University Press.
Mulvey, Laura. 1975. “Visual Pleasure and Narrative Cinema.” In The Routledge Critical and Cultural Theory Reader. 2008. Eds. Neil Badmington and Julia Thomas. New York, N.Y.: Routledge. 202-212.
New York Times Company v. Sullivan, 376 US 254 (1964) <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=376&invol=254> (accessed 20 September 2009).
Philadelphia Newspapers, INC v. Hepps, 475 US 767 (1987) <http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case =/us/475/767.html> (accessed 19 September 2009).
Schwartz, Victor E., Kathryn Kelly, and David F. Partlett. 2005. Prosser, Wade, and Schwartz’s Torts: Eleventh Edition. New York, N.Y.: Foundation Press.Base Image Sources
Siegel, Paul. 2008. Communication Law in America: Second Edition. New York, N.Y.: Rowman & Littlefield Publishers, INC.
Smolla, Rodney A. 1986. Suing the Press. New York, N.Y.: Oxford University Press, INC.
Solove, Daniel J. 2007. The Future of Reputation. New Haven, C.T.: Yale University Press.
Time, Inc. v. Hill, 385 U.S. 374 (1967) <http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=US&vol=385&invol=374> (accessed 19 September 2009).
Tocqueville, Alexis de. 1840. “Equality of Condition.” In Classic Readings in American Politics: 3rd Edition. 1999. Eds. Pietro S. Nivola and David H. Rosenbloom. New York, N.Y.: Worth Publishers INC. 3-8.
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The Competing Schools of Thought on Constitutional
Charles A. Beard, Jackson T. MainIntellectual Model
Constitution was designed to benefit Founders economically
Anti-Federalists and Federalists divided along class lines
Forrest McDonaldMcDonald V.S. Beard State by State
Constitution had ideological roots
Anti-Federalists had localist tendencies
Federalists were Nationalists
New Jersey, Delaware, GeorgiaSouthern Opposition States
All ratified unanimously
Beard: Farming interest not given enough time to organize, security holders dominated.
McDonald: large number of farmer delegates
Small number of Personality Interests
Virginia and North CarolinaAgrarian Dominated States
Large number of farmers
Holders of Confiscated British Wealth in Virginia
Public Security holders support Constitution
Debtors divided in North Carolina
Connecticut, Maryland, South Carolina, New HampshirePersonality States
Beard: Personality Groups dominated conventions
McDonald: over half of Delegates were farmers in all states
Majority of Debtors vote for ratification
Massachusetts, New York, Pennsylvania, Rhode IslandJackson T. Main’s Class Model
Eastern Regions: Strong Federalist cities
Western Regions: Majority Anti-Federalist
Few members of realty interest, yet, strong opposition
Federalists were in high leadership positionsMcDonald’s Economic Groups
Anti-Federalists in lower class
Disproven in many states
Beard’s economic interests too rigidIntellectual Influences
Economic interest were complex
Four primary interest groups
-Farmers, Manufacturers, Merchants, professionals
-all from isolated areas
-Slave holding: Divided, depending on situation
-Tied to customer’s interests
-Nothing at stake
-Heavily Federalist for economic reasons
Foreign trade agents
-Constitution Elevates them
-some with political careers
Public Office Holders
-Support based on stability of situation
McDonald’s Two forms of RepublicanismViews of History
Influenced by Ancient Republics and Great Awakening
Prominent in New England
Private Behavior important to public virtue
Community before the Individual
Virtues: Industry, Frugality, Work Ethic
Prominent Founders: John Adams (Federalist, MA.), Richard Henry Lee (Anti-Federalist, VA)
Influences: 17th and18th Century theorists and The Anglo Saxon Myth.
Prominent in the South
Property ownership and Right to Bear Arms.
Rights of the Individual over community
Vigilance and jealousy of power
Prominent Founders: John Taylor of Caroline (VA, Anti-Federalist), Patrick Henry (Va, Anti-Federalist)
FederalistsConclusion“New Science of Politics”Anti-Federalists
Hamilton, “Federalist No.9,”
“The science of politics, like most other sciences, has received great improvement.”Historical patterns of Human Nature.Interpretations of Montesquieu
Robert Yates, “Brutus”
“It is a truth confirmed by the unerring ages that every man, and every body of men, invested with power, are ever deposed to increase it, and to acquire superiority over every thing that stands in their way.”FederalistsProtection from insurrection
Madison, “Federalist No. 51”Hamilton, “Federalist No.9”Level of Contact with Outside World
“Moderate Governments” and States Rights
George Clinton, “Cato’s Letter III”Federalists Lived in areas were contact with outside world was common
Anti-Federalists tended to be from Isolated Areas
This divide consistent in most cases
Multiple and diverse influencesBibliography
Economic Models of Beard, Main discredited by fact, but not in all cases
Diversity of Influences
Beard, Charles A. 1960. An Economic Interpretation of the Constitution of the United States of America. New York. MacMillan
Epstein, David, F. 1984. The Political Theory of the Federalist. Chicago: The University of Chicago Press
Frohen, Bruce. 1999. The Anti-Federalists: Selected Writings and Speeches. Washington, D.C.:Regnery Publishing.
Main, Jackson Turner. 1961 The Anti-Federalist Critics of the Constitution, 1781-1789. ChapelHill, N.C.: University of North Carolina Press
McDonald, Forrest. 1979. E Pluribus Unum, The Formation of the American Republic 1776-1790. Indianapolis: Liberty Press
McDonald, Forrest, 1992. We The People, the Economic Origins of the Constitution. New Brunswick, N.J.: Transaction Publishers
McDonald, Forrest, 1985. Novus Ordo Seclorum, the Intellectual Origins of the Constituion. Lawrence, K.S.: University Press of Kansas
Rakove, Jack, N. 1997. Original Meanings, Politics and Ideas in the Making of the Constitution. New York: A.A. Knopf.
White, Morton, 1987. Philosophy, the Federalist, and the Constitution. New York.: Oxford University Press.
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September 11th terrorist attackThesis
OEF launched October 7, 2001 as a response
Find Osama Bin Laden and all high-ranking Al Qaeda officials, destroy Al Qaeda organization & the Taliban regime in Afghanistan who provides safe-haven for al-Qaeda.
OEF successful but since 2006 al-Qaeda and the Taliban have surged in northeast through insurgent/guerilla warfare
Coalition forces are struggling to implement COIN strategy in the isolated populations and mountainous regions of northeastern provinces
McChrystal calls for 40,000 troops. Waiting on Obama…
Examine the current war-fighting strategies implemented by US forces in the Northeastern provinces of Kunar and Nuristan.Population
Study the military history of Afghanistan (Soviet & British invasions) to conclude a greater modern counterinsurgency strategy in Kunar and Nuristan
Multiple ethnic groups: Pashtun, Tajiks, Hazaras, and UzbeksGeography
Language: Dari, Pashtu, Turkic
Est. Census of 2005: 29,928,987
- 84% Sunni Muslim
- 15% Shiites Muslim
Britain invades in 1838 to keep the Russians from controlling the country.The Soviet Invasion
Unable to win the hearts and minds of the population
Unwilling to make long-term, large-scale, military commitments
Left Afghan’s bitter and hostile towards foreign influence and modernization
Soviet Union invades Afghanistan December 1979US Invasion of Afghanistan
Afghan government becomes pro-soviet and communist.
Radical Islamic fundamentals counter by forming an insurgent force called the Mujahideen
Soviet strategy: depopulate remote villages in the countryside
US finances and arms the Mujahideen’s fighting force
Soivet Regime begins leaving Afghanistan in 1985
The Taliban is born!
US must be weary of the historic strength of Afghan insurgent groups.
September 11th attacksKunar and Nuristan
Osama bin Laden identified
Bush: issues ultimatum but Afghan government refuses to cooperate
US initial attacks (ariel bombing and US Special Forces) are a success!
Battle of Tora Bora serves as major turning pointOverview
Osama bin Laden and al-Qaeda officals retreat across Kunar border into Pakistan
History of violence and unconquerable thus farEnemy Syndicate
Extremely treacherous terrain: rocky and hilly
Share a River Valley system
401, 000 Afghan locals live in the valleys
Korengal Valley considered deadliest place on earth!
River Valley people are strict conservatives and rural
US Forces must earn the trust and support of the locals
Al-Qaeda is ring leader for multiple “syndicate” insurgent groupsCounterinsurgency Strategy
Enemy insurgent force estimated between 7, 000 and 11,000 fighters
Must focus efforts on destroying al-Qaeda
“Taliban” has become a generic description for all insurgent forces
Major flaws in the current strategy “clear, hold, build”Korengal Valley
A. PROVIDE FOR THE POPULATION
B. Limit the flow of insurgents in the region
C. Reduce civilian casualties/destruction of property
D. Expand Afghan Security Force in the region
SOLUTION: Increase the number of US Troops in the region.
Extremely hostile locals – deadliest region in AfghanistanConclusion -Population is Paramount-
Taliban smuggle timber out of Korengal to fund the insurgency
Korengalis don’t support US presence or Afghan government
A. Concentrate on insurgent forces and take the Korengalis out of the fight
B. Eliminate large amounts of indirect fire in the Valley
C. Decrease US casualties in the region
SOLUTION: Remove US troops from the Korengal Valley and shift the focus of the fight to the origins of the trade routes
Protect the people of Kunar and NuristanQUESTIONS?
Stronger military presence in the region
Train the population
Remove troops in extremely hostile (untouchable) regions
SOLUTION: Win the hearts and minds of the people in order to defeat the insurgency in Kunar and Nuristan
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