This whole scam of unprovable scandalous charges against Bret Kavanaugh is an artifact of the fact that judges do not sue for libel. The 1964 New York Times v. Sullivan decision says, in so many words, that judges cannot sue for libel. That decision by the Warren Court was unanimous - IMHO, unanimously wrong.Although the plaintiff Sullivan was a Democrat, that is deceptive because he was a Southern Democrat - a breed of the sort which fought the Republicans in the Civil War, but also in bad odor with Democrat liberals in 1964.
In the 1920s the journalism cartel essentially inverted the meaning of the term “liberal” from “agreeing with Jim Robinson” to its implausibly denied (by journalists) modern connotation: “agreeing with, and going along and getting along perfectly with, the perspective of journalism.” And there are not now any Democrat politicians other than “liberals.”
The upshot is that Democrats don’t get libeled - but conservatives do. Thus, the Sullivan rule that it’s easier for a camel to go thru the eye of a needle than for a politician to get a hearing for his libel complaint doesn’t affect Democrats at all - and is ruinous to the reputations of conservative politicians and their adherents.
In Sullivan, SCOTUS claimed that the First Amendment gave the press freedom from legal constraint on libeling politicians, but that is untrue. The plain fact is that the Bill of Rights - see the plain text of the Ninth Amendment - was strictly conservative in that it gave no one any new right. Think: how would the composers of the Bill of Rights have gone about gaining consensus for the creation of new rights??? They patently did not try - their objective rather was to provide assurance to the AntiFederalists that the Constitution did not change anyone’s rights in any way not explicit in the text of the Constitution.
As Scalia noted, the meaning of the phrase “the freedom . . . of the press” is different from the simple “freedom . . . of the press” would have been. “The” freedom of the press was the freedom which existed before the Constitution was ratified. Freedom, that is, within the constraints of traditional laws against libel and pornography. Thus the right of a plaintiff to sue for libel - unenumerated but plainly implied in 1A - is not changed but protected by the Bill of Rights. The Warren Court claim that the First Amendment reduced the right of a politician or judge to sue for libel is therefore unfounded. To reach their desired conclusion SCOTUS would have to have shown that restriction of politicians’ rights to sue for libel preexisted the Constitution and the First Amendment.
Absent the visionary dissent by freshman Justice Antonin Scalia, the 1988 Morrison v. Olson decision would also have been unanimous. But although it has never been overturned, Morrison is considered to have been delegitimated by history, and worthless as precedent. Why should anyone suppose it impossible that the Warren Court, lacking as it did an Antonin Scalia, could have been unanimously wrong???
IMHONYT v. Sullivan said that 1A denigrated the right of officials to sue for libel. SCALIA said that was WRONG.
What Scalia said was that the Bill of Rights was not enacted to change anything at all.It was created NOT to change any right but to set in concrete the established rights of the people. That is explicitly the burden of Ninth Amendment.
And where 1A refers to “the” freedom . . . of the press it explicitly means that freedom of the press AS IT EXISTED IN 1787 cannot be changed.
BUT EXISTING FREEDOM OF THE PRESS DID NOT INCLUDE FREEDOM TO LIBEL (or to print pornography).So altho the Warren Court asserted that the First Amendment required that officials and judges not be allowed to sue for libel, THAT COULD NOT BE TRUE.
To make the case they asserted, they would have had to refer back to PRECEDENTS PRIOR TO THE CONSTITUTION for their source. And that they did not do.
Other flaws in SULLIVAN include the fact that
- Major journalism is a cartel (the words, “Associated Press” alone should tell anyone that).
- That cartel has redefined the words “liberal” AND “objective” to mean “in perfect accord with the perspective of the journalism cartel.” The USAGE of those words is, per the cartel, strictly that journalists are never to be called “liberal,” and politicians are never called “objective.” Also, per the cartel, the definition and usage I have articulated must be denied. Even if no more plausibly than the claim that a pitcher didn’t intend to hit a batter with a pitch.
- Consequently “liberal” officials never get libeled - and “conservative” ones routinely do. Denigrating the rights of public officials to sue for libel is, in practice, denigrating the rights of CONSERVATIVE officials AND THIER ADHERENTS to vindicate their reputations BY ESTABLISHING FACTS in a court of law.
- This gives “liberals and objective journalists” the right not only to their own opinions, BUT TO THEIR OWN FACTS. And that is Political Correctness. The Warren Court never saw the open politically correct journalism which is now routine, and it is possible to believe that even Earl Warren would have balked at reifying THAT.
No one now disputes that MORRISON V. OLSON was wrongly decided. Yet absent Scalia’s classic dissent, MORRISON would have been unanimous.
In 1964 the SULLIVAN decision was unanimous. But then, the Warren Court didn’t have Antonin Scalia on the bench - and SULLIVAN is just as wrong as MORRISON is.