Abolish the Wire Services

Self | Self

[conservatism_IS_compassion]

As court precedent ^{,_primarily the unanimous 1964 New York Times Co. v. Sullivan decision,_} showed prior, there is a different bar between those in the public eye and those who are not. Sandmann's actions made him certainly the opposite of a public official. Donald Trump can't sue the New York Times (in most cases) for what they write about him. Sandmann can sue (and win) over whether or not the Washington Post or CNN send virtual lynch mobs against him.

The Sullivan decision justified itself with the assertion that

". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment”

We all love us some First Amendment - but in reality that claim is poppycock. In fact, prior to 1964 no court had ever asserted that the First Amendment had any effect at all on libel law.

That is true for the same reason that 1A has no effect on pornography restrictions. Namely, the fact that the objective of the Bill of Rights was to guarantee, and reassure the public, that the Constitution did not change the rights of the people in any non-explicit way.

There was no bill of rights in the unamended Constitution for the simple reason that the Federalists assumed, and wanted the public to assume, just that - that the Constitution didn’t change anyone’s common law rights. When forced to insert a bill of rights into the Constitution by amendment, the Federalists did two things:

1. In the first eight amendments they “enumerated” - did not claim to create but merely to articulate - rights, and only those rights, which had historically been denied by tyrants.

2. In the ninth and tenth amendments, they asserted the principle that if the Constitution is silent about a right, the Constitution does not change that right.

Thus, the fact that the Constitution - First Amendment and all - is silent about pornography law and libel law means that common law principles prior to the Constitution apply to them. Nobody thought that laws against pornography or libel were exceptionable in 1788, and to have assayed to weaken those laws by constitutional amendment in that era would have been to invite a firestorm of controversy.

Libel and slander are violations of the Ninth Commandment, "

Thou shalt not bear false witness against thy neighbour

and the weakening of legal strictures against libel or slander would have been opposed from every pulpit in the land. No such furor erupted, because the First Amendment was understood to preserve “the” freedom of the press - freedom as it already existed, and was limited, by libel and pornography restrictions.

Antonin Scalia understood and articulated that argument, and Clarence Thomas does so now.

The New York Times Co. v. Sullivan decision was unanimous, but that was a ruling by the notorious Warren Court. Absent the investiture of Antonin Scalia in the year before the decision, Morrison v. Olson could have been unanimous too - but nobody now would venture to cite it as precedent for anything other than the fact that eight SCOTUS justices can be wrong at the same time. Well, the Sullivan decision proves that nine Warren Court justices could be egregiously wrong simultaneously.

[conservatism_IS_compassion]

I looked forward to my 20th FREEPERversary in February of last year - then when it came, I realized that the congratulations did not belong to me but to Jim Robinson and FR for being the go-to place for sanity in an insane political world.

FR was my lifeline when I was minding my Mother who, fading away with Alzheimer’s, mostly just sat around.

Speaking of insanity, IMHO it always existed in politics but really received license from the government in 1964 when the Warren Court unanimously(!) held in New York Times Co. v. Sullivan that

". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment”

That position is simultaneously both impossible to argue with, and indefensible.

Who doesn’t love himself some freedom of the press???
Mark Steyn is an exemplar of a public figure who would defend Sullivan.
Rush Limbaugh, ditto.

And yet Sullivan is in fact directly in conflict with

Amendment 9

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

. . . which says that if the Constitution doesn’t explicitly "deny or disparage” a right which existed in 1788, all the handwaving in the world cannot suffice to vindicate an argument against that right.

And the right of people - “public figures” or no - to sue for libel certainly did exist in 1788. As Antonin Scalia put it in a 2016 speech,

the Supreme Court, under Justice Earl Warren, “… simply decided,‘Yes, it used to be that … George Washington could sue somebody that libeled him, but we don’t think that’s a good idea anymore.’”

Think what would happen to “the media” if Sullivan were overturned!
Republican politicians (and Justice Kavanaugh, BTW), would positively own them.

And

Thou shalt not bear false witness against thy neighbour. Exodus 20:16

rightly so.

[conservatism_IS_compassion]

MSM can put over hoaxes. E.g. Trump says drink bleach. Trump said Charlottesville skinheads were nice people.

They could report that Biden won the election.

Eventually the 1964 New York Times Co. v. Sullivan decision must be challenged and overturned. Just like pornography law, libel law was never understood to be affected by the First Amendment until 1964. Pornography law is still on the books, and libel law legitimately should be also.

The reason is simple: the Federalists had much bigger fish to fry - getting consensus support for the new constitution - than trying to change libel law or any other right of the people or the states via the Bill of Rights. Deliberately assaying to change a right was the furthest thing from their minds, and no court questioned that until the Warren Court’s Sullivan decision. The First Amendment doesn’t say anything about libel, and it doesn’t legitimately mean anything about libel.

Mark Levin had President Trump on his TV show a few weeks ago, and both of them agreed that Sullivan has to go.