Barr needs an ironclad case to win. Shiff is already playing the partisanship card on Barr, and an acquittal would really play into Adam Schiffs hands.The facts of American political life are that
- because of the influence of the wire services - all of them - major journalism is a cartel in violation of Sherman.
- journalism profits from promoting crises continually.
- government profits from the perceived need for more government - and that is what public fear of crisis produces.
- Consequently journalism promotes big government, and big government advocates are simpatico with journalists.
- Consequently conservatives get libeled mercilessly, and liberals dont get libeled. At all.
- The Warren Courts 1964 New York Times Co. v. Sullivan decision prevents Republicans from suing for libel.
- Sullivan stands or falls on the claim that
". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First AmendmentThat claim was completely novel in American jurisprudence in 1964, because a right to murder reputations with dangerous weapons - libel - is no more authorized by the First Amendment than murdering people is authorized by the Second Amendment. The freedom of the press and the RKBA were both existing and limited in 1788 - and the Bill of Rights was crafted to preserve those rights unchanged. The Federalists didnt want to enumerate rights at all, but they had to promise to do so in order to win ratification of the Constitution. The Bill of Rights was ratified as a conservative measure; it touched no rights it did not enumerate.The majority - weak as it is - of conservative SCOTUS Justices must be given a case to overturn Sullivan. And - preferably in the same case - to find the wire services in violation of Sherman - and abolish them. After all, they are collusive on their face - and the rationale for allowing them anyway no longer exists (who thinks telegraph bandwidth is expensive enough to justify unifying and homogenizing journalism now?).
Conservative commentators are averse to the abolition of Sullivan for fear that they will be hit with lawfare libel suits. To the extent that that is a danger, SCOTUS could simply override Sullivan only for the members/subscribers of the wire services.
Justice Thomas favors overturning Sullivan, and Justice Scalia favored it as well. Justice Kavanaugh has every reason to favor it also, and presumably Alito would agree. That leaves Gorsuch - whom Scalia approved of - and Roberts. But by the time a case launched now reached SCOTUS, Ginzburg might have retired or something . . .
We need at least one, possibly two, more Supreme Court appointments before we have a conservative court.