Richard Perle vs. the First Amendment

I don’t actually know whether Seymour Hersh libeled Richard Perle by accusing him of trying to use his official position to enrich himself. [Details here; they seem pretty damning, if correct. It was clearly out of line for someone in Perle’s position to be asking Saudi businessmen with ties to the royal family for investment capital for his homeland-defense firm; the implication that giving him some cash would help shield the Saudis from what they have coming to them is just too blatant.]

I know some people who think Perle completely capable of such behavior, and some people who think Hersh completely capable of utterly misinterpreting what he’s told in order to make a target look bad. The fact that Perle called Hersh “the closest thing American journalism has to a terrorist” doesn’t speak well for his manners or self-restraint, or for the taste of the President in making him, and keeping him on as, the head of the Defense Policy Board, but on the other hand it doesn’t really tell us anything we didn’t already know about Perle. And the fact that Perle made an over-the-top comment [Transcript here: comment about 40% of the way down] doesn’t have much bearing on his financial ethics. However, the fact that he chose to insult Hersh rather than responding to the factual claim that he had asked the Saudis for money doesn’t make him look good.

Since Perle is clearly a “public figure,” under American libel law since NY Times v. Sullivan he would face an uphill struggle if he were to sue Hersh; he’d have to show that what Hersh said was false, that it was damaging to Perle, and that Hersh either knew it was false or published it with reckless disregard for its truth or falsity. I’m not sure I agree with the Sullivan doctrine as a policy matter, but that’s the law.

But the Prince of Darkness, as he’s affectionately known, is not to be stymied by such trivialities as the Constitution. So he’s going to sue Hersh in a British court (which he can do since The New Yorker is distributed in England). British libel law is so grossly pro-plaintiff that damaging facts about important people known to the entire British political elite can be kept out of the public prints.

Eugene Volokh notes that Perle might have trouble collecting a judgment against Hersh unless Hersh has assets in the UK, but my understanding of British libel law is that the publisher is always liable, and The New Yorker would presumably have to pay up or stop being able to sell the magazine in the UK. (For Hersh, the good news is that UK civil suits are under the “loser pays” rule, so if Perle loses he would have to pay Hersh’s costs; fraudulent pro-Nazi historian David Irving went bankrupt and lost his home in his failed attempt suit against Deborah Lipstadt for calling him a fraudulent pro-Nazi historian.) As Eugene says, a US court would probably not enforce a UK libel judgment; I don’t think there’s any reason to think it wouldn’t enforce a judgment for costs against an unsuccessful libel plaintiff.

But the mechanics of civil justice shouldn’t be our main concern here. The point of the Sullivan case was to avoid a situation in which public officials could use the threat of libel actions to shield themselves from criticism, as the Lee Kuan Yew gang that runs the highly successful Singaporean dictatorship-posing-as-a-democracy has so skillfully done.

Perle’s Defense Policy Board appointment is unpaid, but he’s still an important official of the current administration. Unlike most libel victims, he has plenty of access to the media for whatever denials he has to offer. If he wants to use a foreign court system to evade the free-speech protections provided under American law, there’s nothing to prevent him from doing so. But allowing him to keep his official position would be a declaration of war on press freedom. The President should quietly — or perhaps noisily — tell Perle to drop the lawsuit, bring it in an American court, or resign.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: