Nancy Hamilton's Notes

Nancy Hamilton's Notes Conrad Black — An Absence of Actual Malice

An American's point of view: Sitting in Canada looking out over Lake Huron, without the benefit or hindrance of TV, it has been interesting to observe the fallout from the Conrad Black trial in Chicago in the Canadian papers.

The Canadians seem to be of two minds about the case: One, that Lord Black was a victim of the American press and of an overzealous prosecutor who was trophy hunting for the next tycoon's head to place on his wall (a bizarre David and Goliath twist) and, conversely, that while the Canadian and UK press had been cowed by his offensive litigious tactic of filing libel suits against anyone who had the temerity to probe the underbelly of the beast, only the American press and a relentless U.S. prosecutor had the audacity to pursue him and bring him to justice. Some cheered the Americans' moxie, while others lamented that it was cruel and unusual punishment to potentially sentence a Lord to prison for fraud involving merely dollars.

One thing I came away with, however, is that the dilemma faced by the Canadian and UK press in investigating and writing stories about Lord Black (prior to his indictment and trial) was most likely the result of an absence of the element of actual malice in their libel laws that is such an integral element of our Constitutional jurisprudence. No doubt actual malice is much maligned and hated in many circles — indeed, many are calling for its demise or at least its dilution — but the tale of Conrad Black, the fallen media mogul, is a present-day example of its value and necessity.

— Nancy Hamilton is a partner at Jackson Walker. She can be reached at nhamilton@jw.com.