Our system "isn’t working” precisely because of the New York Times Co. v. Sullivan decision and its interpretation. The 1964 Sullivan decision asserted that it would be a violation of the First Amendment for a judge or political official to be allowed to sue for libel.That Warren Court decision was unanimous, with enthusiastic concurrences. But then, absent the vote of then-freshman Justice Scalia, Morrison v. Olson would’ve been unanimous, too - and nobody now thinks Morrison would be upheld if tested. Because Scalia’s dissent was promptly vindicated by history.
Fundamentally, there are at least two flaws in the use of Sullivan as precedent. Not the least of which is that it cannot be correct as a legal principle. Stay with me here:
The entire Bill of Rights was crafted to ensure that - aside from the explicit changes explicit in the text of the Constitution - there would be no change in the rights of the people or of the states. The Ninth and Tenth Amendments make that explicit:Another reason that Sullivan is not generally applicable is that the history of “the media” since 1964 has made it painfully obvious that national “MSM” journalism is a cartel. “People of the same trade seldom meet together", Adam Smith asserted, "even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” And the wire services, especially the Associated Press, have been continuous virtual meetings of all major journalism which have been ongoing since before the Civil War. To assume that the members/subscribers of the wire services do not “conspire again the public” is therefore a manifestation of naiveté.
- Amendment 9
- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment 10
- The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Second Amendment echoes that by explicitly referring to “the right of the people” independent of the Constitution - and so, in its way, does the First Amendment. Because 1A does not simply refer to “freedom . . . of the press - it refers to the freedom . . . of the press - freedom as it existed before the Constitution itself was ratified. Ever wonder why the First Amendment didn’t eliminate libel and slander laws, and didn’t eliminate pornography laws? There’s your answer.
The right to sue for libel or slander preexisted the Constitution, and neither the Constitution nor the Bill of Rights touched that right. In reality, an appeal to the First Amendment is no different from an appeal to the Ninth Amendment - it can only be adjudicated by reference to American common law. Not by simply saying, “freedom of the press.” The above analysis was articulated by Antonin Scalia.
The “conspiracy against the public” by the journalism cartel is the propaganda campaign to the effect that journalists are objective - and that journalists express the public interest. Journalists are not objective, journalists are biased in favor of reporting bad news - that is not a matter of dispute. Journalism is negative towards society, and thus systematically suggests the need for more government. And actually trying to be objective is hard work - and no guarantee of getting along with the cartel. What guarantees getting along with the journalism cartel? Why, going along with the rest of the cartel, of course.
Nothing in the Sullivan case raised any inkling of the existence of that cartel. Let alone the fact that it politically homogenizes journalism. In the Sullivan case the plaintiff was not a Republican, but a Southern Democrat in bad odor in liberal circles. But de facto, the journalism cartel defines “liberalism” as “going along and getting along with the journalism cartel” - and defines “objective” the same way. Of course, the cartel insists on difference usages for the two “synonyms” - “liberal” is never to be applied to any journalist - and “objective" always is.
The upshot is that Democrats - who go along assiduously with the journalism cartel - get along perfectly with it, and are never libeled. And that Democrats’ opponents are routinely libeled. A decision that politicians cannot sue for libel is therefore a decision that Republicans cannot sue for libel. A decision that Republicans cannot sue for libel is a decision that Democrats are entitled not only to their own opinions but to their own facts.
And we wonder where “political correctness” comes from!
Scalia argued his view on “textualism” was the ultimate defense of the First Amendment. In March 2012, an Associated Press report said he told an audience at Wesleyan University that the Court’s early justices would be “astonished that the notion of the Constitution changes to mean whatever each successive generation would like it to mean. … In fact, it would be not much use to have a First Amendment, for example, if the freedom of speech included only what some future generation wanted it to include. That would guarantee nothing at all.”“you can libel public figures without liability so long as you are relying on some statement from a reliable source, whether it’s true or not.” There is something to be said for that approach, assuming that an inadvertent libel originating in excessive trust of a “reliable” source can ordinarily be apologized for amicably. But the rub comes in when the source you rely on is the journalism cartel. The journalism cartel’s faux probative value would have to be litigated away to make that dispensation valid.That opinion didn’t prevent Scalia from harsh criticism of what is widely viewed as one of the essential court rulings protecting free speech and a free press — the 1964 decision in New York Times Co. v. Sullivan.
At the Newseum in the Aspen Institute 2011 Washington Ideas Forum, Scalia said the landmark ruling meant “you can libel public figures without liability so long as you are relying on some statement from a reliable source, whether it’s true or not.
“Now the old libel law used to be (that) you’re responsible, you say something false that harms somebody’s reputation, we don’t care if it was told to you by nine bishops, you are liable,” Scalia said. “New York Times v. Sullivan just cast that aside because the Court thought in modern society, it’d be a good idea if the press could say a lot of stuff about public figures without having to worry. And that may be correct, that may be right, but if it was right it should have been adopted by the people. It should have been debated in the New York Legislature and the New York Legislature could have said, ‘Yes, we’re going to change our libel law.’”
But in Times v. Sullivan, Scalia said 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.’”
JUSTICE SCALIA: THE 45 WORDS — AND ORIGINAL MEANING — OF THE FIRST AMENDMENT
And the rub comes in when you rely on someone’s “recovered” (read, synthesized by a psychoanalyst) memory. No court should ever hear a “recovered” memory; recovered memories are synthesized by a process which would be inadmissible in court but which is shielded from an opposing lawyer’s challenge by HIPPA. Understand, a “recovered” memory is a memory - in the sense that the “rememberer” sincerely cannot distinguish the memory from a valid, probative memory. Which simply makes the “rememberer” a devastatingly effective “witness" of something that person never actually experienced.