To state the blindingly obvious, if wire service journalism were a tenth as interested in pursuing wrongdoing by Democrats as they are pursuing wrongdoing by Republicans . . .The First Amendment was composed and ratified to assuage fears that the people’s access to political opinions would be compromised by the new federal government. The famous New York Times Co. v. Sullivan 1964 SCOTUS decision vindicated that protection of journalism from unification by government. The decision was unanimous and - given the facts before the court - could not have been different.
But application of Sullivan as an exemplar of all cases where politicians are criticized by newspapers (or broadcasters) is very wide of the mark. Mr. Sullivan, the plaintiff, was a Southern Democrat - in 1964, a very unpopular thing to be. Republicans weren’t going to be sympathetic to him, and the national Democrat Party was moving away as well (recall the Dixiecrat split in 1948). So if anything, the judges in his case had a bias against the plaintiff. The case was weak in the sense that the Times printing an advertisement - in which the plaintiff was not criticized by name. The principle that people have a right to print opinions which are not provable and perhaps are wrong is however unexceptionable. Who could evade censorship on FR - how could FR evade censorship - without that principle?
The trouble with Sullivan is that it takes no account of the possibility of (as Adam Smith would put it) “a conspiracy against the pubic” among all major journalistic institutions. And that condition prevails. It prevails when, although there are two major political parties, of roughly comparable strength in America, major journalism institutions are essentially unanimous in proclaiming evils real and imaginary of one particular party and scarcely at all of the other. Applying Sullivan to that situation is as tyrannical as any evil which would have sprung from a contrary result in Sullivan.
The First Amendment is right, and the attempt to vindicate it in Sullivan was also right. The trouble is that a conspiracy of private parties has arisen with the clout to accomplish what the First Amendment exists to prevent the government from doing. Worse, that conspiracy is powerfully influential in government. The result is that although the government doesn’t censor the access of the people to varied opinions, the government is controlled by people who do.
The conspiracy against the public which has achieved that position must be brought to heel. The Associated Press, its membership, and all other wire services have produced this conspiracy, and they should be subjected to ruinous damages under antitrust law.