The New Criterion

Stanley Kurtz responds:

Reynolds defense, yet later acknowledges substantial differences between British and American law. So what looks like a claim that Ehrenfeld will get de facto American treatment in Britain is actually a call for American authors to submit to British law. Even the vaunted Reynolds defense—no true equivalent to American law—is under pressure from Mr. Justice Eady, and cannot be relied upon.

British libel law is a problem, not because of its nineteenth-century sources, but because it challenges the fundamental principle that the burden of proof ought to rest on the accuser, rather than the accused. British libel law can also be exploited to suppress political debate, as it was in the McLibel case. Blackburn fails to address the substance of the “McLibel” point, and, if anything, seems to favor the disturbing British decision in that case. Although Blackburn rejects indigence as a defense, he resorts to it implicitly when juxtaposing “powerful media corporations and their prey.”

So Blackburn, who so clearly dislikes American law, would impose British standards on American authors. Yet he can neither own up to the fact that this is what he is doing, acknowledge the precarious status of the Reynolds defense he so touts, nor speak to the potential abuse of British libel law as a tool to stifle political debate.

Blackburn frames the issue as America versus Britain, yet British libel law has drawn very serious calls for reform in Britain itself. This debate is ongoing both within and between nations, and the internet will force it toward some general resolution, explicit or implicit. I prefer to acknowledge the growing problem and openly make the case for my preferred resolution. Blackburn would hide the internationalist legal ambition implicit in his stance. Yet this is no longer possible. Either wealthy, internet-enabled libel tourists will force plaintiff-friendly British law on the entire world, or the world itself will rebel, then rethink and reform its laws to prevent this.

Stanley Kurtz
Washington, D.C.