[NOTE: I've received a recent communication that indicates the court proceedings yesterday in Paris may not have gone as negatively as my initial impressions from the information on the subject I had read and/or listened to far. If so, I would be very happy to hear it, and will be updating as soon as I get any further clarification. So until further notice, please take the following post, written earlier today, with a large grain of salt.
In addition, the three interviews at the PJ link, which contained the information about yesterday's trial on which I based this entire post, are no longer there. I don't know whether this has any significance or not, but, as I said, I'll make any corrections as soon as I get new information. I'd be only too happy to learn that things are brighter than I had originally thought.]
Philippe Karsenty’s appeal in the defamation case against him launched by media giant France2 continued in Paris yesterday, with the stalwart Richard Landes reporting on the proceedings.
The issue is freedom of speech, which hardly seems to exist in France. And of course there is also the issue of the veracity of the press in the al Durah affair, since Karsenty had accused the government-controlled France2 and its correspondent Charles Enderlin of presenting falsehoods in their coverage of the story (please see Landes’ website Second Draft and his blog Augean Stables for more about the controversy regarding al Durah, and its significance).
It comes as absolutely no surprise that the Alice in Wonderland quality of the oxymoronic French justice system, with its wacky disregard for what we would consider basic rules of evidence and logic, continues unabated (if you want to look at more of my posts on the earlier trials in Paris, scroll down and click on them here).
Landes, who speaks French fluently, was in the courtroom for many hours yesterday listening to the arguments on both sides. He reports that the final remarks of the Avocat Générale, a court official who has no equivalent in this country but who functions as a supposedly independent quasi-judge who sums up the case and makes recommendations to the court, were not in Karsenty’s favor.
To recap what I learned last year when I visited France and attended an earlier trial on the same subject: the strong presumption of innocence is in favor of the journalist Enderlin and France2 itself. Although Karsenty is the defendant, accused of defaming Enderlin and France2 by saying they presented falsehoods in their coverage of al Durah, he is required to prove his innocence.
That means proving beyond a reasonable doubt that his charges are correct. This is nearly an impossibility, especially when the “narrative” on the subject has already been controlled by that very media coverage he has been attempting to refute.
Defamation law in this country is not only different, it is almost the opposite (details here). Especially when the allegedly defamed person is a public figure, the standard of proof required of the plaintiff (not the defendant, as in France) is almost impossibly high.
According to my observations and to Landes’ report, the French legal system appears to turn on very different principles than ours, and to emphasize such issues as a person’s reputation and standing in the community rather than the details of the case itself—what has been alleged, and whether it can be challenged by facts and evidence. And so the court proceedings are relatively short compared to the lengthier trials in this country, and testimony is not challenged with the depth and detail that would be considered standard in this country.
As Landes reports in his audio interviews at PJ, the France2 lawyer made heavy use of sarcasm and ridicule in his closing arguments, which seemed to be heavily loaded with ad hominem attacks on Karsenty. Although no one had mounted a serious challenge to the substance of what Karsenty had alleged about Enderlin and the al Durah tape, the France2 lawyer nevertheless compared Karsenty to a cross between a Holocaust denier and Thierry Meyssan, the author of the French book debunking the 9/11 attacks.
So the al Durah affair, thanks in no small part to the efforts of Enderlin and France2, has now taken on an aura of truth tantamount to the Holocaust, and any attempt to cast doubt on it makes one a David Irving.
Landes reports that the judge seemed to misunderstand the statements for which Karsenty was on trial, suggesting that Karsenty had alleged a knowing lie and broad conspiracy on the part of Enderlin, France2, and many others. Karsenty actually had never said Enderlin was knowlingly perpetrating a lie in his original coverage, just that he had been duped by his cameraman, who had fudged the tape and misrepresented what he saw (this is why the videotape has been such important evidence, since it vindicated Karsenty). Landes reports that the judge kept erroneously assuming Karsenty had made the absurd accusation that virtually everyone inolved in the al Durah story was in on the conspiracy; for example, the King of Jordan, who visited al Durah’s father in the hospital. Karsenty had never suggested such a thing, but this did not stop the court from thinking he had.
A lie gets more than halfway around the world before the truth has a chance to get its pants on, especially when that lie has been perpetrated by the official press of a major European country. And once that happens, it is canonized as truth, particularly if it is congruent when the politics of the day: poor suffering Palestinians at the hands of vicious racist Israelis.
It would be nice if we could rely on the veracity and integrity of the media. Unfortunately, we sometimes cannot; we must rely on the forum of public opinion to evaluate the truth of such news reports. To do so, it is necessary that they can be challenged by the public, and the arguments heard, without the chilling effect of such lawsuits. The legal system of the United States recognizes these basic facts; that of France does not.
My sense is that this difference reflects a deep cultural divergence that goes back a long way. Is it really any surprise that in France, protection of entrenched institutions such as France2 is considered more important than getting at the truth, or allowing officials of those institutions to be criticized? After all, France has a tradition of aristocracy, snobbery, and class that is quite different from ours.
People came to this country in part to get away from the stuffy rigidity of European society and its respect for those in power; to breathe the fresh air of freedom and to judge each other for what we do—not what we are, or what our ancestors were, or our stations in life. Of course, human nature being what it is, we have not been able to totally escape those things. Our legal system struggles mightily to counter them, however, and to level the playing field by its adherence to strict rules of evidence, and its act-oriented rather than person-oriented approach to justice and procedure.
Yes, there are inequities here, some of them caused by the fact that richer people can hire better lawyers. But the inequities are small compared to those of a country such as France. There, the deck is meant to be stacked in favor of entrenched, traditional, institutional interests rather than the individual, and freedom of speech is jettisoned in favor of protection of reputation.
The big loser is not Karsenty, or any other defendant in his position. It is truth. And when truth loses, we all lose.