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 AmendmentWe 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 didnt change anyones common law rights. When forced to insert a bill of rights into the Constitution by amendment, the Federalists did two things:
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.
- 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.
- 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.
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.
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 Alzheimers, 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 AmendmentThat position is simultaneously both impossible to argue with, and indefensible.Who doesnt love himself some freedom of the press???Think what would happen to the media if Sullivan were overturned!
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
. . . which says that if the Constitution doesnt 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.
- Amendment 9
- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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 dont think thats a good idea anymore.
Republican politicians (and Justice Kavanaugh, BTW), would positively own them.And
Thou shalt not bear false witness against thy neighbour. Exodus 20:16rightly so.