By: V SUNDARAM
Friday, 06 June, 2008 , 03:29 PM
‘There is no surer sign of a feeble and fumbling law than timidity in penetrating the form to the substance’.—Justice Learned Hand in Loubriel vs. United States, 9F(1926)
Kornstein Veisz Wexler & Pollard, LP, New York, Attorneys for Narain Kataria and Arish Sahani who are defendants in a defamation case filed by Indian National Overseas Congress (INOC) Inc. in the Supreme Court of New York in their affidavit have stated that INOC’s leader who filed the amended complaint on 23-5-2008, has himself admitted that this case has been brought up not to defend INOC’s reputation but the reputation of Sonia Gandhi. I have been given to understand that the INOC leader in question has himself stated somewhere in his complaint petition that he wanted to defend the honour of his ‘Boss’ and in this case it should be clear to all concerned (excepting to the impotent, mentally deranged, or mentally retarded slavish buffoons of the Congress Party in India!), that he is referring only to Sonia Gandhi and not Mahatma Gandhi. This also becomes clear from an article of April 8, 2008 entitled ‘Forum Faces Rs 400 Cr Lawsuit for Defaming Sonia’ in Rediff India Abroad.
Dr Surinder Malhotra, President of the INOC told rediff.com: ‘These kind of personal attacks were actually tantamount to hitting someone below the belt; totally unnecessary… I could not keep quiet; I am morally responsible to save the honour of our party President’. This admission by INOC’s president belies any argument that INOC is suing for harm to its own reputation. Thus, according to the Affidavit of Kornstein Veisz Wexler & Pollard, LP, New York, INOC is an improper plaintiff, and their amended complaint should be dismissed on that basis alone. But that is only first of the fatal flaws in its suit.
I am quoting below the relevant extracts from the Affidavit of Kornstein Veisz Wexler & Pollard, LP , New York.
1.‘Since the statements are core political speech based on official documents and previously published accounts and plaintiff has failed to allege ‘actual malice’, the complaint (of INOC) should be dismissed’.
2.‘Insurmountable constitutional hurdles also bar plaintiff’s claim. The allegedly libelous statements — criticism of government and political leaders — are classic core political speech protected by the First Amendment. They are, moreover, drawn from official documents and previously published reports the truth of which the ad’s authors had no reason to seriously doubt. As a matter of constitutional law, the statements cannot form the basis, of a libel action. This conclusion inescapably follows from the Supreme Court’s landmark decision in New York Times Co. v. Sullivan, 376 U.S. 254 (1964)’.
The case law relating to New York Times Co. v. Sullivan (1964) cited above by the Attorneys for Narain Kataria and Arish Sahani is wholly applicable, in letter and spirit, to this INOC case in question. Here are more extracts from the Affidavit filed on behalf of Narain Kataria and Arish Sahani.
3. The Sullivan Rule
‘The allegations in the amended complaint resemble, to an astonishing degree, those in Sullivan. Like our case, Sullivan involved a political advertisement in the New York Times (about, in that instance, the opposition to the civil rights movement in the South, a movement of civil disobedience inspired by Mahatma Gandhi). As in our case, person criticized in Sullivan was a public official (albeit only a local police chief, not the leader of a country of over a billion people). And also as in our case, the complaint in Sullivan alleged libel, claiming that the ad made false and defamatory statements about the plaintiff’s official conduct. With so many factual similarities, Sullivan casts a long, dark shadow over plaintiff’s allegations. The Sullivan Court rejected, on First Amendment grounds, the libel claim there, just as this Court should here. In one of the most important and celebrated decisions of the twentieth century, the Supreme Court held in Sullivan that a public official defamed in connection with the conduct of his or her office may not recover for libel unless the official proves, by clear and convincing evidence, that the defendant acted with ‘actual malice’ in the constitutional sense, that is, either with knowledge that the statement was false or with ‘reckless disregard’ of its truth or falsity. Put another way, the Sullivan rule means that false, inaccurate or erroneous statements about public officials cannot, without ‘actual malice’, be the basis of a libel claim’.
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| The above advertisement appeared on 6 October 2007 in New York imes.Courtesy: Dr. Subramanian Swamy (visiting Professor, Harvard University) |
The Supreme Court in the Sullivan case, declared for all time when it ruled, ‘erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive. To impose liability for critical, albeit erroneous or even malicious, comments on official conduct would effectively resurrect the obsolete doctrine that the governed must not criticize their governors’.
Sullivan emphasized that politicians must be treated as people with ‘fortitude, able to thrive in a hardy climate’. Id. at 273, quoting Craig v. Harney, 331 U.S. 367, 376 (1947). Sullivan requires politicians to have thick skins because ‘Charges of gross incompetence, disregard of the public interest, communist sympathies, and the like usually have filled the air; and hints of bribery, embezzlement, and other criminal conduct are not infrequent’. Sullivan, 376 U.S. at 273 n.14, quoting Noel, Defamation of Public Officers and Candidates , 49 Col. L. Rev. 875 (1949) . The First /Amendment prohibits political leaders from muzzling critics and chilling free speech with lawsuits, as has been attempted in this case.
In the Sullivan Case, the Supreme Court ruled to the effect that rather than using the weapon of a libel suit to keep opponents quiet, politicians should respond to the charges and give their side of the story. It was held that they are not ‘without defenses against unsubstantiated opinion or deliberate misstatements. . . . The public official certainly has equal if not greater access than most private citizens to media of communication. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy’.
If INOC Inc. wanted to effectively counter the charges/allegations in the New York Times advertisement of 6th October 2007, INOC could have taken out its own political advertisement in the same Newspaper or elsewhere, not only in USA but also in all the countries of the world! Instead of using INOC as a conveniently disposable pawn, Sonia or Rahul Gandhi could have spoken to journalists and the media in all parts of the world. Sonia Gandhi could have sent her surrogate Prime Minister or any number of surrogate and ever willing Union Cabinet Ministers, (the most obliging tenants-in-waiting like Kapil Sibal, Mani Shankar Ayer, Ambika Soni and a large number of non-descript un-employable and un-employed X, Y, Z Ministers!) in interminable succession to hold a press conference in New York (if necessary, even in the main Hall of the United Nations, using the personal clout of Sonia Gandhi!) to heroically defend the massive and rock like dignity, and honour of Sonia Gandhi, apart from her impeccable academic credentials as a mighty intellectual (?!) produced by University of Cambridge in England.
4. No Factual Detail
‘Pleading actual malice demands factual detail, which the amended complaint fails to provide. A public figure is required to ‘allege facts sufficient to show actual malice with convincing clarity’, and if it does not, the complaint should be dismissed for failure to state a cause of action’. [Ref. Jimenez v. United Federation of Teachers, 239 A.D.2d 265, 266, 657 N.Y.S.2d 672, 673 1st Dep’t 1997].
In other words, when a plaintiff fails to allege any facts from which malice could be inferred, his conclusive allegations of malice become insufficient, unsustainable and untenable. Nor can the Plaintiff INOC in this case either alleged or prove that the allegations made by the Defendants in the ad in question were either false or made with reckless disregard of whether they were false or not. Thus I have no doubt that any Court of Law in USA would dismiss the flimsy and frivolous defamation case filed by INOC in a summary fashion, with award of costs.
5. No Actual Malice
‘It is impossible for plaintiff to allege that defendants here acted with ‘actual malice’, because, as the ad itself shows and as the accompanying Kornstein affidavit elaborates, each of the allegedly libelous statements derived from official documents or previously published information’.
6. No Suggestion of actual malice or reckless disregard
‘The ad in question refutes any suggestion of actual malice or reckless disregard. The ad expressly cites to ‘Know Your Sonia’ by Dr.
Subramanian Swamy, visiting Harvard Professor; ‘The State
Within a State’ by Yevgenia Albats; Swiss Magazinece’.
7. Since the statements at issue are either true , not defamatory, opinions, or hyperbole, they are not actionable.
‘In any event, the statements in question all fall into one or more non-actionable categories. They are either substantially true, not susceptible of a defamatory meaning, protected’.
The advertisement of New York Times of October 6, 2007 derives its legal and political sanction from the First Amendment. According to the First Amendment of US Constitution, ‘The Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances’. In my view, nobody in USA can question the political freedom of Narain Kataria and Arish Sahani to sit in judgment on the political credentials of Sonia Gandhi and her family in India.
Applying the letter and spirit of the First Amendment above, I have no doubt that the Supreme Court of New York would throw out the defamation petition of INOC. I believe that when the American Founding Fathers, with their wisdom and patriotism, wrote this amendment, they wanted to ordain that Congress, elected by the people, should not tell the people what religion they should have or what they should believe or say or publish, and that is about it. It says ‘No Law’, and that is what I believe it means. Sonia and her Congress minions may perhaps succeed in abrogating the Indian Constitution. But they can never succeed in moving the Supreme Court of New York (either through the INOC or any other suppliant organization!) to cast aside the Law of the American Constitution set out in the First Amendment described above.
(To be contd…)(The writer is a retired IAS officer)e-mail the writer atvsundaram@newstodaynet.com
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