Taking Carter to Court
A class action suit on behalf of buyers of former President Jimmy Carter's book Palestine:Peace, Not Apartheid (hereinafter "The Book") claims that Carter and his publisher, Simon and Schuster, deliberately defrauded the buyers by including numerous false statements in the book. (1) The plaintiffs, who seek both compensatory and punitive damages, are represented by the Israel Law Center of Tel Aviv and Atty. David Schoen of Montgomery, Alabama.
Since I read The Book at the Chicago Public Library, and would not have paid a nickel for it, I am not eligible to join the class of cheated buyers. I have not been able to get list of alleged lies in the book, but there may be plenty. Most of the controversial statements in the Book are opinions and conclusions by the author, who contends that Israel wants to "colonize" the West Bank and has not been negotiating in good faith. However, there may also be provable false claims in The Book as well. But even so, can the plaintiffs win this case? Should they?
First. does the First Amendment to the US Constitution, which guarantees "freedom of the press" preclude this type of suit? The publisher has the unquestioned right to print anything the firm sees fit to publish, and this suit does not infringe on that right. If The Book were given away free, as propaganda pamphlets often are, there would be no basis for the suit at all. But when a book is offered for sale, it becomes a product, like a TV or box of cereal, and is subject to consumer protection laws, such as New York General Business Law 349, which prohibits deceptive acts in marketing products. This may be the first time such a law has been invoked against a book or any other form of expression.
For example, when the publisher of a book about Howard Hughes by Clifford Irving learned that the book falsely claimed to be based on personal interviews with the subject, the book was withdrawn and all printed copies were trashed. Had that book been sold, the publisher could have been sued for false advertising and forced to refund all proceeds of sale received. (Even in this outrageous case of false advertising, I doubt that punitive damages were warranted, let alone in the Carter case.)
But is Carter's book in the same category? Unless the plaintiffs' attorneys can convince a jury that Carter and the publisher set out to deceive the buyers, a very steep hill to climb, I do not believe that any damages will be awarded. First, the buyers could have easily learned that Jimmy Carter was not an objective scholar on Middle East matters, but an advocate of the Palestinian cause for decades. Any book by him on this question would likely be strongly biased in favor of the Arab side. Moreover, the incendiary word "apartheid" in the title, which recalls the "Zionism is Racism" UN resolution of 1975, was a clear signal that the book would castigate Israel. I say that the buyers were not cheated; they got exactly what they paid for.
A verdict in favor of the plaintiffs would have a "chilling effect" on the freedom of the press in this country. Major corporate publishers would hesitate to publish any controversial non-fiction for fear of a lawsuit. Courts would be placed in the untenable position of determining the truth of controversial claims about all kinds of issues such as evolution, global warming, abortion and so on. Accordingly, I contend that even if the plaintiffs win in the US District Court, the verdict will be overturned on appeal.
I was in the position of the plaintiffs myself recently, but reacted differently. I paid $ .25 for a copy of Betrayal by Robert Morrow at the Menomonee Falls Library used book sale last year. The cover claimed the book presented new facts about the JFK assassination, but when I read it, I concluded the book was mainly fiction. So did I return Betrayal to the Falls Library and demand my quarter back, or threaten to sue for fraud? No way! I brought the book to the January 31 book swap at Marquette University and eschanged it for a collection of old columns by Chicago journalist Mike Royko. "Let freedom reign!"
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(1) Unterberg et al vs Jimmy Carter et al., (11 ev 0720), filed in the Southern District of New York.
Since I read The Book at the Chicago Public Library, and would not have paid a nickel for it, I am not eligible to join the class of cheated buyers. I have not been able to get list of alleged lies in the book, but there may be plenty. Most of the controversial statements in the Book are opinions and conclusions by the author, who contends that Israel wants to "colonize" the West Bank and has not been negotiating in good faith. However, there may also be provable false claims in The Book as well. But even so, can the plaintiffs win this case? Should they?
First. does the First Amendment to the US Constitution, which guarantees "freedom of the press" preclude this type of suit? The publisher has the unquestioned right to print anything the firm sees fit to publish, and this suit does not infringe on that right. If The Book were given away free, as propaganda pamphlets often are, there would be no basis for the suit at all. But when a book is offered for sale, it becomes a product, like a TV or box of cereal, and is subject to consumer protection laws, such as New York General Business Law 349, which prohibits deceptive acts in marketing products. This may be the first time such a law has been invoked against a book or any other form of expression.
For example, when the publisher of a book about Howard Hughes by Clifford Irving learned that the book falsely claimed to be based on personal interviews with the subject, the book was withdrawn and all printed copies were trashed. Had that book been sold, the publisher could have been sued for false advertising and forced to refund all proceeds of sale received. (Even in this outrageous case of false advertising, I doubt that punitive damages were warranted, let alone in the Carter case.)
But is Carter's book in the same category? Unless the plaintiffs' attorneys can convince a jury that Carter and the publisher set out to deceive the buyers, a very steep hill to climb, I do not believe that any damages will be awarded. First, the buyers could have easily learned that Jimmy Carter was not an objective scholar on Middle East matters, but an advocate of the Palestinian cause for decades. Any book by him on this question would likely be strongly biased in favor of the Arab side. Moreover, the incendiary word "apartheid" in the title, which recalls the "Zionism is Racism" UN resolution of 1975, was a clear signal that the book would castigate Israel. I say that the buyers were not cheated; they got exactly what they paid for.
A verdict in favor of the plaintiffs would have a "chilling effect" on the freedom of the press in this country. Major corporate publishers would hesitate to publish any controversial non-fiction for fear of a lawsuit. Courts would be placed in the untenable position of determining the truth of controversial claims about all kinds of issues such as evolution, global warming, abortion and so on. Accordingly, I contend that even if the plaintiffs win in the US District Court, the verdict will be overturned on appeal.
I was in the position of the plaintiffs myself recently, but reacted differently. I paid $ .25 for a copy of Betrayal by Robert Morrow at the Menomonee Falls Library used book sale last year. The cover claimed the book presented new facts about the JFK assassination, but when I read it, I concluded the book was mainly fiction. So did I return Betrayal to the Falls Library and demand my quarter back, or threaten to sue for fraud? No way! I brought the book to the January 31 book swap at Marquette University and eschanged it for a collection of old columns by Chicago journalist Mike Royko. "Let freedom reign!"
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(1) Unterberg et al vs Jimmy Carter et al., (11 ev 0720), filed in the Southern District of New York.
posted by Gerald S Glazer at 7:09 AM
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