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Public Person Libel Standards in the British Commonwealth Caribbean Versus the United States

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Public Person Libel Standards in the British Commonwealth Caribbean Versus the United States PUBLIC PERSON LIBEL STANDARDS IN THE BRITISH COMMONWEALTH CARIBBEAN VERSUS THE UNITED STATES By ROXANNE SABRINA WATSON A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2006 Copyright 2006 by Roxanne Sabrina Watson To my parents, Sybil and Earle Watson, with gratitude for your love and support ACKNOWLEDGMENTS I would like to thank my supervisory committee chair, Dr. Bill Chamberlin, for his support and guidance over the past four years and also for his patience in working with me in what has turned out to be a very large and involved dissertation. I also want to thank my other supervisory committee members—professors Laurence Alexander, Lisa Duke, David Geggus, and John Wright. I know that without the efforts of each in his or her specific area of expertise, this dissertation would not be possible. I want to thank my parents, Sybil and Earle Watson, for emotional and spiritual encouragement throughout the dissertation process, and for listening to my desperate outbursts and frustrations on a daily basis and keeping me focused on God. Thanks also go to my sister, Kerry Hendricks, for her spiritual encouragement and for her presence when I most needed someone to drive four hours with me to Georgia and back. Thanks also go to my brother, Huntley Watson, for moral support and encouragement. I would also like to acknowledge Eyun-Jung Ki, my dissertation friend with whom I shared many frustrations and triumphs as we waded through the process together. I want also to thank Winston Spaulding Q.C., the legal counsel for Anthony Abrahams, who directed me to several sources and gave me access to material that has been critical to my dissertation. I want to acknowledge the assistance of my cousin, Pearl Morgan, who directed me to and helped me access important historical materials. I also thank Debbie Muga of the College of Journalism and Communications for her assistance in first edits of the paper. I acknowledge the assistance of the Jamaican legal firm Watson iv and Watson in recovering several cases, statutes and texts that have been important for my research. Thanks also go to Daphne Adams for her assistance in interpreting the Spanish case and to the Language Training Centre in Jamaica for assisting in the translation of a Costa Rican Code. v TABLE OF CONTENTS page ACKNOWLEDGMENTS ................................................................................................. iv LIST OF TABLES............................................................................................................. xi LIST OF FIGURES .......................................................................................................... xii ABSTRACT..................................................................................................................... xiii CHAPTER 1 PURPOSE, METHODOLOGY, LITERATURE REVIEW AND DEFINITIONS.........................................................................................................1 1.1 Introduction..................................................................................................1 1.2 Research Questions....................................................................................11 1.3 Definition of Libel and the Defenses in Jurisdictions................................18 1.4 Basis and Provision for Freedom of Speech in the Jurisdictions...............26 1.5 Significance of Membership in an International Human Rights Organization...............................................................................................33 1.6 Methodology..............................................................................................36 1.7 Structure of Judicial Systems in Caribbean and United States..................49 1.8 Key Legal Terms........................................................................................51 1.9 Literature Review.......................................................................................56 1.10 Outline for Dissertation..............................................................................78 2 THE BRITISH CASES..........................................................................................82 2.1 Introduction................................................................................................82 2.2 Political History of England.......................................................................83 2.3 Court System in England and Wales .........................................................91 2.4 Provisions for Freedom of Speech in the United Kingdom.......................95 2.5 Theories of Freedom of Speech in Britain.................................................99 2.6 English Press............................................................................................106 2.7 Early Cases: Nineteenth Century to 1919................................................113 2.8 The 1920s to the 1960s ............................................................................126 2.9 Cassell v. Broome and its Progeny: 1970s to 1990s ................................141 2.10 Conclusion ...............................................................................................192 vi 3 THE HOUSE OF LORDS’ DECISION IN REYNOLDS ....................................198 3.1 Introduction..............................................................................................198 3.2 Facts in the Reynold’s Case .....................................................................200 3.3 Arguments and Defenses .........................................................................206 3.4 Lord Nicholls of Birkenhead’s Majority Opinion ...................................207 Privilege ...................................................................................................209 Issue of a New “Generic” Privilege.........................................................214 Circumstantial Test ..................................................................................220 Lord Nicholls’ Decision...........................................................................222 3.5 Concurrences............................................................................................224 Lord Cooke of Thorndon’s Concurrence.................................................224 Lord Hobhouse of Woodborough’s Concurrence....................................236 3.6 Dissenting Opinions.................................................................................240 Lord Steyn’s Dissent................................................................................240 Lord Hope of Craighead’s Dissent ..........................................................253 3.7 Conclusion ...............................................................................................266 4 NEW YORK TIMES V. SULLIVAN AND ITS PROGENY .................................269 4.1 Introduction..............................................................................................269 4.2 Political History and Political Culture in the United States.....................272 4.3 Federal Court System in the United States ..............................................277 4.4 Provisions for Freedom of Speech in the United States ..........................279 4.5 Freedom of Speech Theory in the United States .....................................282 Thomas Emerson and His Four Defenses for Freedom of Speech ..........283 Meiklejohn and Self Government............................................................291 Vincent Blasi and the Emergence of the Fourth Estate in the 1960s and 1970s............................................................................................296 Rodney Smolla’s Rationale for Freedom of Speech................................304 4.6 United States Press...................................................................................312 4.7 Facts in New York Times v. Sullivan........................................................315 Events in Montgomery, Alabama in 1960 ...............................................316 New York Times......................................................................................319 Advertisement..........................................................................................319 Lower Court’s Decision...........................................................................323 Alabama Supreme Court’s Decision........................................................327 4.8 United States Supreme Court’s Decision in New York Times v. Sullivan332 4.9 New York Times’ Progeny........................................................................344 Curtis Publishing Co. v. Butts and Associated Press v. Walker ..............344 Gertz v. Robert Welch, Inc.......................................................................355 Hutchinson v. Proxmire ...........................................................................370 4.10 Damages in Libel Actions........................................................................378 4.11 Conclusion ...............................................................................................398 vii 5 A HISTORICAL AND CULTURAL LOOK AT THE BRITISH CARIBBEAN ......................................................................................................401 5.1 Introduction..............................................................................................401
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