Robert Maxwell and libel law - 13 December 1991

I've just been busy clearing out my library, a chore which I kid myself is a duty I perform three times a year. Actually I get round to it with sluggish reluctance when an annual crisis threatens what the founding fathers called domestic tranquillity. When my wife tells me that the pantry has surfaces meant for the housing of trays and kitchen gadgets and not for the piling up of several hundred useless books. Her definition of a useless book is a book that is not a novel written by a British or American woman. It's time then to keep the promise I make to a New York library, to give, donate is their word, as many books as I can manage after a regular clearing out.

There are books, there are sets of books, there are the complete works of famous authors that I look over three times, know I will never read again, I then blindfold myself and lift them to the overladen pantry and call the New York Society Library cut. There are books that are not masterpieces, not works of literature that I pick out, look over and thoughtfully, time and again, return to the shelf. Such a book is one entitled, The 91 Before Lindbergh. My secretary was helping me cart off the needless, never to be opened again books and she came on this one. The 91 Before Lindbergh, she said, what does it mean? Exactly, I said quietly, what it says. The 91 men who flew across the Atlantic before Charles Lindbergh did it in, wasn't it May 1927. She's a very gentle sensitive creature but she was well, almost more outraged than surprised, What? If she'd been a much tougher character, more peremptory, I could imagine her snapping, what men, how dare they. It was exactly the sort of book I'm determined to keep, even when the complete works of Sir Walter Scott have gone with the wind or should I say have gone with Gone With The Wind, that lamentable orgy of romantical trash, which has distorted the popular record of the Civil War for now, I suppose, three generations. By the way, I regret to say that the works of Scott went with the wind years and years ago.

Ask any American you run into, who was the first man to fly the Atlantic, I do believe nine in ten, more, would reply. Lindbergh. Well those previous 91 were made up of twos and threes and more from several countries, mostly American. The point about Lindbergh is that he was the first man to fly it alone and non-stop. But I wish there were more books like Peter Allen's 91 Before Lindbergh, not for itself alone but as a type of book, of which there are desperately few. To be blunt, books that challenge the widespread national assumption, in most countries, that whatever it was, we invented it, we did it first and more than anything, that our democratic institutions are unique and more democratic than yours.

Now this is a fault that is not peculiar to the United States, though it is resounding here. It's common to all countries which practice a democratic system and because it's theirs, assume it must be the best. For years I've longed for, urged on various wealthy bodies, the setting up in universities of more schools of studies in comparative democracy. Ever since I first listened to debates in the United States Senate, through all those years, at very regular intervals, say six or eight times a year, some senator or other will refer proudly to the Senate as this, the greatest deliberative body in the world. This is a slogan recited time and again by men who have never been to Sweden, never seen the Lok Sabha in action in New Delhi, not attended Question Time or any time in the House of Commons or even totally unfamiliar with the way they do things over the border in Ottawa.

I was reminded of this chronic gap in our universities, in our published books, when I ran into an English friend this weekend, apropos of I think, some of the ramifications of the Maxwell mess. He said, by the way, do you have a Monopolies Commission? I don't know how long the British Monopolies Commission has been in existence, I don't think since, say, Disraeil – or for that matter, Krueger or Clarence Hatry. Yes indeed, I said, it was President Roosevelt's, President Theodore Roosevelt's big weapon against the detested trusts, against the robber barons who having built or financed one railroad, decided to bag all the railroads or all the steel or oil or copper in the land. To Teddy Roosevelt, the great current villains were the Morgans and Harrimans and Fricks and Rockefellers and he broke them with the weapon invented 101 years ago, 1890, the Sherman Antitrust Act, the first federal effort to curb monopolies. Much could have been learned in England long ago from the Sherman Act, but wasn't.

However, the last week or two has provided us with a rare example of how something is done in one country which could not be done in another because their laws on the same subject are different and we're noticing the different approaches now, at the time it's happening. Well not to tiptoe around the bush, the ailment or the cure, I'm thinking of Mr Maxwell again and the question raised in the United States and this week echoed in England, could he have got away with it in America?

The answer seems to be he could not and this is why. It has to do with the application of the libel laws and with a difference and exactly opposite presumption of where in a libel suit rests the burden of proof. I think it's agreed by knowledgeable commentators in both countries that Mr Maxwell managed to squelch serious criticism of himself, his methods, his finances, in a way that the public must have been only dimly aware of. Once a lively criticism appeared, which came in his view too close to the bone, he slapped it down with a libel suit. At one time, I've read, he had out, pending more than a hundred writs. Talk about a litigious character. But the point to notice is that the libel laws helped him never or rarely have these cases brought to court.

In America most would have come to trial and he would have lost. The difference is simple and, to Mr Maxwell, would have been devastating. In Britain a man claims that he's been libelled, something false has been written about him in a paper, magazine, wherever. In Britain, the prejudice lies with the plaintiff, the man suing. In Britain the law says to the paper, you have slandered or libelled this man and by golly it's up to you to prove it true. In America, the law says to the plaintiff, you're taking a big risk in suing that paper for libel. They say you're a son of a gun and it's up to you, not them, to prove it ain't so. And by the way, Mr Plaintiff, it's not enough for you to prove that their statements about you are false, you must also prove that they deliberately wrote them, knowing them to be lies and they published them while, the law stipulates, they smacked their lips with malice. If Mr Maxwell had sued in the United States, in every case he would have had to prove that the alleged libeller had decided to tell a deliberate lie.

In one of the most notorious of modern cases, only a few years ago, the American commander in chief in the Vietnamese War sued, in his retirement. Columbia Network's famous Sunday evening investigative show, 60 Minutes, charged him with the very serious act of faking the numbers of the enemy's attacking force, diminishing the threat, so to speak, so as to falsify the picture in our favour and, I suppose, to keep up morale. This is a very serious accusation to make against any soldier in command. General Westmoreland was hurt, appalled and in a blazing mood when he sued CBS. It came to trial but halfway through, suddenly and with no explanation given, the general gave up the case and agreed to an out-of-court settlement. He might have proved to the jury's satisfaction that he had not faked any figures and CBS was wrong to say so, but he could not prove that what they had said and filmed and argued was done with deliberate malice.

Whenever the law of libel is debated in a general way in this country, Americans look back in proper reverence to an early, famous New York City editor, one Peter Zenger. We're in the colonial period and to be exact, 1733. The governor, the British governor of New York was offended and he claimed to have been libelled by a piece or pieces, a pretty damning story about frauds in the running of the city elections. Nothing quite like this had happened before and we can safely assume that 40-odd years before the idea of independence took fire, the editor of the local paper would have a rough time in court, up against the royal figure of the British governor. There was a jury. It looked over the piece or pieces and before nightfall on the first day, threw the case out of court, to the huffing discomfiture of the governor and the astonishment of the New Yorkers.

This short famous case was never forgotten. Some lawyers and constitutional scholars plausibly maintain that it was proudly recalled and cited when the Congress, the very first Congress came in 1789, came to write a list of amendments to the Constitution already in effect, amendments that together are called the Bill of Rights. And if the setting free of that editor, Peter Zenger, was the influential factor, it appeared at once in the very first Amendment, which says, among other things, Congress shall make no law abridging the freedom of speech or of the press. That simple sentence is the sanction for investigative reporting, good, bad, splendid and awful.

Looking through some of the things written about Mr Maxwell, I'm sure that over here he could not have proved, in most cases, a conspiracy to practise deliberate lying against him. Put in a more general way, you could say that in a country which puts the burden of proof on the libeller, Mr Maxwell was able to bottle up, suppress, quash, suffocate the craft of investigative reporting, the sort of thing which, in the United States, without a court case, has brought down bigger men than Robert Maxwell. Federal judges, senators, governors, a secretary of the New York stock exchange, not to mention a president of the United States.

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