A little over a year ago, as readers of this series know, Richard N. Perle vowed to sue New Yorker staff writer Seymour M. Hersh in England for Hersh's investigative feature, "Lunch With the Chairman." I predicted at the time and in 11 subsequent installments that Perle had no case and for that reason would never sue in England—or Antarctica or Mars, for that matter.
Vindication came at the end of last week when the New York Sun, which reported Perle's original threat, published a short item ("Perle Declines To Sue Journalist Hersh") about Perle's decision not to file. The Sunreported that Perle's lawyers advised him not to sue because "the standard for libel cases required him to prove that Mr. Hersh knowingly used errors and wrong information in his article. …" The piece goes on to quote Perle saying, "Lies and distortions do not constitute libel unless one can demonstrate the errors, lies and distortions are willful."
The standard for libel Perle describes here sounds more American than English. But in every previous news account, Perle threatened suit in an English court, where the libel laws give plaintiffs a comparative advantage over defendants. For instance, English libel law would not automatically require Perle to prove that Hersh and The New Yorker had published errors, lies, and distortions willfully. Any defamatory statement—true or not—can be grounds for a libel suit in England. So why didn't Perle sue over there? Was it because he feared the defendants would beat him by running a "defense of justification," or invoke "fair comment" or "privilege" defenses? (For a map of the swamp that is English libel law, see this page.)
Or should we turn to the simplest explanation: that he's a gasbag who never intended to sue and just wanted to throw a scare at the journalists following Hersh's story? Just last month, Perle's attorney gave this view credence when he said his client was resigning from the Defense Policy Board to make it easier for him to sue news organizations that "falsely accused him of conflicts of interest."
Perle also told the Sunof his plan to publish on the Web or distribute at a news conference "80 to 90 pages of transcripts from his lawyer's interviews with individuals interviewed by Mr. Hersh that he said 'make it absolutely clear that his reporting in his article is false,' Mr. Perle said. 'With the benefit of that information I would expect The New Yorker to make a correction.' " As John Wayne said in The Searchers, "That'll be the day."
I suppose I should be grateful to Richard Perle for making his empty libel threat. After all, I got a dozen "Press Box" columns out of it. That said, I still think it was skeezy of the New York Sun to make such a big deal about Perle's intention to file suit—as it did last year. You could fill a newspaper five times over daily with people who are mad enough to sue over a news story but never do. What's so special about Richard Perle that his legal bluffs should be news?
Give the Sun credit for marking the expiration of the one-year statute of limitations with a story. But after a year of legal suspense, you'd think the newspaper could have come up with something stronger than a news short to explain Perle's decision not to sue.
Dear Mr. Perle: When you've assembled your 80- to 90-page document attacking Sy Hersh, please send it to firstname.lastname@example.org. (E-mail may be quoted by name unless the writer stipulates otherwise.)