9
under Nauru law and of violating international law by interfering with the
internal affairs of the Marshall Islands. He filed a libel action in an
American court and asked for $7.5 million in damages. He sought a ruling
from the court that the site of the tort was Nauru and thus Nauru’s English
common law of libel should apply. The Daily News argued that Guam law,
with its incorporation of First Amendment protections, should apply. Those
protections include a requirement that the story was published with actual
malice.
46
The court held that Nauru law would apply except where it
conflicted with the First Amendment. It said:
It is the policy of the forum state (Hawaii) and Guam that critics of
public officials and public figures receive the protection afforded by
the First Amendment . . . The English common law of Nauru contains
no such safeguards; except for this similarity, however, the policies
underlying laws of defamation in Hawaii, Guam and Nauru do not, at
this time, appear to conflict. The libel laws of the respective states
represent a common commitment to protecting the reputations of their
citizenries. Hence, application of the libel law of Nauru together with
the First Amendment safeguards of New York Times v. Sullivan and
its progeny provide a satisfactory accommodation of the relevant
policies of this forum.
47
In The Price of Power: Henry Kissinger in the Nixon White House,
the investigative journalist Seymour Hersh wrote that Morarji Desai, one of
Mahatma Gandhi’s key lieutenants in the Indian independence movement,
was a Central Intelligence Agency source. Hersh claimed Desai, later prime
minister of India, received $20,000 annually during the administrations of
Presidents Lyndon B. Johnson and Richard M. Nixon. Hersh asserted Desai
informed the United States of India’s plans to invade East Pakistan (now
Bangladesh) during the 1971 India-Pakistan war.
48
The book was banned in
India, but the allegations were widely circulated.
49
Whether the allegations
were true was not established. Kissinger ambiguously testified that he had
no reason to believe Desai was a CIA asset.
50
The jury found that Hersh had
not committed actual malice and returned a verdict in his favor.
46
DeRoburt v. Gannett Co., 83 F.R.D. 574 (D.Haw. 1979).
47
Id at 579-580
48
Desai v. Hersh, 719 F.Supp. 670 (N.D.Ill. 1989), aff’d 954 F.2d 1408 (7
th
Cir. 1992).
49
“Desai Obtains Ban On Hersh Book In India,” New York Times, July 14, 1983.
50
Larry Green, “Kissinger Says To Best Of His Knowledge Indian Leader Desai Was Not CIA Agent,” Los
Angeles Times, Oct. 3, 1989. Desai was not the only Indian leader to be charged with taking money from
foreign intelligence agencies. Paul Quinn-Judge, then Moscow correspondent of the Boston Globe, wrote
Convention