Supreme Court interpretations have made the judicial proof of defamation so hard that public figures like Rush Limbaugh have no real chance of proving the lies of those who would defame them. Defamation, the Supreme Court determined for public figures, cannot be judicially pursued unless actual malice can also be proven by the person who is factually wrong.
The result is that we all can rest assured that almost anyone can say almost anything against almost any public figure with no legal recourse available. Slander, half-truth, factual inaccuracy and a host of other plagues make the forum of public debate pocked with nonsense and error. Why not have an "Action for Truth," which sought only to set the record straight and not damages.
This would mean that Mr. Limbaugh could pick out the seven or eight most egregious liars, file an action in federal court stating that the statements of these individuals were not true, and demanding a specific public retraction of the false statement. The petition for relief should be accompanied by affidavits and other documentary proof that the statement made against the plaintiff was not true.
If that retraction was publicly made within one week and the retraction was announced by a method calculated to reach the largest audience, the case would end. If the liar persisting in lying, then the case would be set for expedited hearing in which a magistrate could issue a preliminary order, based upon available evidence, that determined whether the defendants were lying or not.
At the same time, the defendants would be advised that the only sanction for an innocent lie was public retraction of the false statement, but that the sanction for deliberate and persistent lying could be actual damages and all costs of litigation. This would protect those who merely made mistakes – the only requirement by law of them would be to officially correct their mistake – but it would create very real punishment for those who lied and who then, when called to account, maintained with a straight face that there lie was true.
The damages could even be calibrated by the day based upon liquidated damages. As an example, if MSNBC says something patently false about Sarah Palin, and if she files an action in truth to obtain a public retraction, the automatic damages MSNBC would have to pay could be the greater of the actual damage caused to Sarah or $200,000 per day from the first notification of the action by the plaintiff, whichever was greater. This would create an incentive to correct errors quickly.
This would leave wide range for opinion. Jesse Jackson, for example, could say "I have always thought that Rush Limbaugh is a white racist who wanted black NFL quarterbacks to fail" or for Rush to say "Jesse Jackson is a con man who does not really care about civil rights." But explicit facts, which proved out not to be facts at all, would have to be retracted or, the longer the lie was maintained, the greater the cost to the liar.
Would this make us morbidly cautious about political speech? No, most political speech is expressly opinion. What it would do is draw a bright line – a line that the media has been wretchedly reluctant to draw – between actual facts and political opinions. This right to sue for the truth should be available by anyone against the media, Hollywood, and the pundits and stars who inhabit that powerful world.
But there is no reason why the action could not be made against politicians too. Why do we believe that our elected officials have a "right" to look us in the eye and lie to us? Why should there be no civil sanction for defamation by congressmen, senators, and presidents? Politicians could still operate in their murky arena, but their misleading statements now would have to be couched in terms like "I believe…" or "I understand that…"
Along with this reform, why not allow anyone to "certify" a statement as true? This would consist of taking a statement, filing it with a federal court, declaring under oath that the statement was true, and obligating oneself to pay damages if the statement was not true. If this reform was in place, anyone who wanted to believed could say: "I have certified these facts as true in Federal District Court for the Northern District of Virginia." Those who did not do so could be called out as lacking real conviction in their facts.
Certifying facts as true would have another advantage. Assume that some leftist news outlet comes out, again, with a finding that the rich did not pay their fair share. A conservative pundit could file as a certified "fact" that the top ten percent of American taxpayers paid over seventy percent of the income tax burden. He could challenge the leftist outlet to say that he was wrong, which would open the leftist outlet itself for an action in truth.
Democracy cannot function when truth is routinely ignored and nothing can be believed by the voters. The preservation of rules for determining who is lying deliberately, who is merely sloppy with facts, and who is telling the truth is important – critical, really – to a healthy federal republic. Who could object to demanding honesty in the media or from our elected officials? Only those who profit by lies.