There’s an old saying I heard with regularity while in law school: “There are two things the public should never see being made: one is sausage, and the other is the law.” The origin of this statement is clouded in historical fog, but it has been attributed to, among others, Otto von Bismarck, the Prussian statesman who dominated German and European affairs in the late 1800s, and Benjamin Disraeli, the learned British Conservative politician, writer, and aristocrat of the same period, who served twice as Britain’s Prime Minister. We may never know who actually uttered these descriptive words, but their meaning is clear: certain things are simply better left forever unseen.
On September 27, 2013, I wrote “What price justice?” about Michael Jackson’s family’s claims against entertainment behemoth AEG Live for both non-economic damages ($290 million) and economic damages ($1.6 billion) arising out of MJ’s death.
The Jackson family attorney argued in closing that the lure of riches turned AEG Live and Dr. Conrad Murray into mercenaries. AEG Live, for its part, argued the angle of personal choice: Michael Jackson had made bad choices and bad decisions, about the drugs he used and the physician who provided them, and was, in effect, the architect of his own early demise.
The five-month trial finally ended when the jury came back after three days of deliberations with its verdict, and a surprising message: The jury found AEG Live not liable in the wrongful death suit brought by MJ’s family, and did not believe cardiologist Dr. Conrad Murray was unfit or incompetent. After the verdict was read, the jury foreman was quick to point out that the jury followed the verdict form language and instructions, but said that that “doesn’t mean we felt he [Dr. Murray] was ethical.”
There were five questions the jury had to respond to in the affirmative in order to find AEG liable. They agreed that AEG had hired Dr. Murray — but on the next question, asking whether Dr. Murray was incompetent or unfit, the jury decided in the negative, making the remaining three questions legally irrelevant. (This civil decision does not alter Dr. Murray’s criminal case — he was convicted of involuntary manslaughter and sentenced in 2011 to four years for his involvement in MJ’s death, but because of prison overcrowding, will be released later this month.)
In this case, saner heads prevailed, forcing issues of personal responsibility and accountability squarely to the forefront where they belonged. The net result was a verdict that, while it no doubt made MJ’s family very unhappy, was nevertheless a sound one. This long-drawn-out final chapter of a sad and tragic book is finally closed.
On the other side of the country, late last year, Jonathan Schanzer, an American author, scholar in Middle-Eastern studies, and president of the Washington-based Foundation for Defense of Democracy, had written an online opinion for the magazine Foreign Policy concerning the two sons of Palestinian Authority President Mahmoud Abbas, Yasser and Tarek.
A few months later, Yasser filed a libel suit in federal court in Washington, D.C. against Schanzer and the magazine. Last week, a U.S. district judge threw the case out, concluding that Schanzer’s statements in Foreign Policy were either not capable of defamatory meaning or were protected opinion statements under the First Amendment, thus applying D.C.’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. These types of statutes are intended to guard against suits aimed at quashing the court of public opinion. This enormous victory will act as a strong deterrent to influential foreigners who seek to stamp out critics and commentators.
In tossing the case, the judge noted that the Abbas brothers had filed defamation suits or threatened libel actions three times previously against an Israeli television channel, Reuters, and Al-Jazeera. In this case, the focus was limited: Were Schanzer’s questions concerning the source of Yasser’s wealth libelous? The court answered in the negative, holding that the case involved claims about a public figure and touched on a public-interest issue — “the relationship between the United States and the Palestinian Authority.” Hence this case squarely fit within D.C’s “strategic lawsuit” definition. The court noted that while the questions concerning the Abbas family’s wealth raised by Schanzer may have been “embarrassing or unpleasant,” they were simply questions. Continuing, the judge made clear that even if those questions rose to the level of assertions, Schanzer’s questions were opinions protected by the Constitution.
It was a good week for the First Amendment and the court of public opinion — and, no doubt, also a very good week for Mr. Schanzer. And in an overly entitled world, it was also a good week for the confirmation of personal accountability and responsibility. So while Bismarck, Disraeli, and their learned brethren may often turn in their respective graves with increasing regularity as the wheels of justice inch forward, this may also be a week when they may rest comfortably and in peace. And one where the making of law, and perhaps even sausage, can indeed be viewed by the public without too much stomach or other upset.
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