[conservatism_IS_compassion]

Antonin Scalia pointed out that the (unanimous) Warren Court holding 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”

is bogus. Justice Scalia pointed out that there was no bill of rights in the unamended Constitution because the Ninth and Tenth Amendments

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

and

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.

were implicit in that document. And also because the rights of the people were nowhere comprehensively enumerated (courts are after all still sorting that out 2&frac2; centuries later) and to assay to do so in a noncontroversial way would have been a fool’s errand. Scalia added that the first eight amendments enumerate only those rights which historically had been abused by tyrants.

Scalia’s point was that freedom of speech and of the press already existed before the ratification of the First Amendment - and so did limitations such as laws against pornography. And, crucially, the wording of the First Amendment was crafted not to modify those limitations. That is what “the freedom of speech, or of the press” meant to the people who ratified the First Amendment. And nobody thought that the First Amendment modified libel law, from the Eighteenth Century all the way to the 1964 diktat of the Warren Court in Sullivan.

Sullivan blatantly violates the Ninth Amendment. Mr. Sullivan himself was not a Republican but a “Democrat.” The scare quotes signify that no present-day Democrat would associate with him, because he was a racist southern Democrat. But that nomenclature confusion aside, the reality is that Sullivan only affects conservatives - “liberals” don’t get libeled, for the simple reason that nobody whom the press is inclined to libel would ever be called “liberal” by the journalism cartel.

[conservatism_IS_compassion]

I see two possible solutions:

1. Establish a Senate rule requiring a 55, or even 60, vote supermajority in the Senate to even take under consideration an impeachment from the House which will require a 67 vote majority in the Senate to convict. Anything less is obviously an unserious waste of the time of the Chief Justice and the Senate.

2. Sue into oblivion the arrogant journalism cartel which is the result of the continuous virtual meetings of journalism conducted by the wire services:
   • Since " People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices” - Adam Smith, you have to be naive in the extreme to suppose that such “meetings” could go on for a century and a half without producing "a conspiracy against the public.”

   • The claim by that cartel that “journalists are objective” incentivizes journalists to go along and get along with each other. Even attempting objectivity requires self-examination and serious reflection, which is neither enjoyable nor, under deadline pressure, even possible. Objectivity is a laudable goal but not a state of being.

   • Attempting objectivity is serious business. Going along with each other, and getting along with each other in a mutual admiration society is not.

In its 1964 New York Times Co. v. Sullivan decision, the Warren Court modified (weakened) libel law on the basis that ". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.” But the Bill of Rights was composed to be profoundly conservative. Those who ratified them had no intention to change any existing right. The First Amendment protects the freedom of the press - freedom as it already existed, with already existing limitations for libel (and pornography). This was understood by jurisprudence from the founding all the way to 1964.

Overturning Sullivan (a unanimous decision) would be controversial, but it is both legitimate “original intent” jurisprudence and the right thing to do to tame “the media.” Sullivan inhibits libel suits by “public figures” - but since “liberals” go along and therefore get along with “the media,” ”liberals” never get libeled." Establishing a Senate rule to require a supermajority in the Senate to take up an impeachment would be easy, but also easy to override. Both things should be done.