Rat-Catchers: The True Function of a Free Press

Granted, the application of constitutional principles to new facts can take on the appearance of legislation imposed from the bench, but the Sullivan decision is defensible based on the original meaning of the First Amendment.

Consider the Supreme Court's decision in McIntyre v. Ohio Elections Commission, 514 U.S. 334, which held that a long-standing Ohio statute that prohibits anonymous political or campaign literature was unconstitutional. The majority opinion and Justice Thomas's concurrence are powerful expositions of the original intent behind the First Amendment and favoring an expansive reading of its principles. I heard Justice Scalia publicly say that he later thought he had gotten it wrong in disagreeing then with Thomas and the majority, which was my impression when I first read the case.

More generally, if one reads the political writings of the Revolution and Founding era, it becomes hard to imagine that the First Amendment can be fairly thought of as intending to permit public officials to sue for defamation when they are criticized. That few public officials attempted to do so was because such a course is rarely if ever well-advised. I think that the Supreme Court ruled correctly in Sullivan. And I say that as the son of a public official who at times suffered unfair media and public criticism.

hard to imagine that the First Amendment can be fairly thought of as intending to permit public officials to sue for defamation when they are criticized.

Scalia’s point on 1A was that it was never intended to break new ground, it was crafted simply to declare that “the” freedom of the press - already existing freedom of the press - would be respected. But already existing freedom of the press was already limited by libel and pornography laws.
Thus, 1A did not touch libel law. And that is why libel law survives at all. But Sullivan didn’t consider that there was such a thing as a journalism cartel which has to be blown up with antitrust law and, IMHO, libel law.

The First Amendment expressly constrains only Congress, which in the early decades had not enacted federal laws on libel or pornography because those were considered state issues.

The closest that early Congresses ever came to violating the First Amendment was the Sedition Act, which is believed to have been aimed at the muck-raking Aurora newspaper. No case on the Sedition Act ever reached the Supreme Court, but in recent decades the Court has indicated in dicta in various opinions that the Sedition Act was unconstitutional.

So how does the First Amendment now apply to the states? Based on the Reconstruction era 14th and 15th Amendments, the Supreme Court adopted the doctrine of incorporation and has gradually applied most of the Bill of Rights to the states.

The problem with Scalia's reasoning about original intent is that it moves the gravamen of constitutional analysis from the text to the limited and obscure historical records of the early federal era. This criticism was sufficiently potent that Scalia himself took to referring to his judicial philosophy as textualism. Original intent still matters, but subordinate to the text of the Constitution.

On the whole, we are better off if constitutional analysis revolves around the words of the Constitution and good reason instead of conjecture about intent. And, as now applied, the First Amendment applies even to libel law. For that, we can thank Reconstruction era.

The problem with Scalia's reasoning about original intent is that it moves the gravamen of constitutional analysis from the text to the limited and obscure historical records of the early federal era.

It is obvious that Common Law (which I take to be the term for what we’re talking about) is a discipline of study rather than something cut-and-dried. But IMHO that is what the study of law is supposed to be.
When the Antifederalists extracted a promise of a bill of rights by amendment, that was potentially a poison pill. Because no such explicit and comprehensive list of rights existed - or, I submit, could exist. Is it not the case that SCOTUS is still working that out, case by case, unto this very day?
The Bill of Rights consists of eight amendments which (sort of explicitly) list rights which had historically been abused by tyrants.

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.

are a different breed of cat. The Ninth Amendment, if taken seriously, obviously throws you right into the “thicket” which you obviously consider Common Law to be. And, per Scalia, where the First Amendment says “the freedom” or, I suspect, where the Second Amendment says "the right," the wording of the amendment throws you directly into the self-same thicket.
The problem of the thicket, according to Scalia, is worse, not better, if you don’t stick to the meanings of words as understood when they were ratified in the Constitution. The thicket is worse in the sense that if you are willing to make “black” mean “grey” and “grey” mean “white,” pretty soon “black” is “white.” You can decide every case according to your own wishes. The only person who has no problem with that is the swing justice on SCOTUS - everyone else is more or less tyrannized by him or her.

This criticism was sufficiently potent that Scalia himself took to referring to his judicial philosophy as textualism. Original intent still matters, but subordinate to the text of the Constitution.

JUSTICE SCALIA: THE 45 WORDS — AND ORIGINAL MEANING — OF THE FIRST AMENDMENT

We agree, for the most part. Legal and historical analysis are different disciplines. Making lawyers and judges try to be historians for purposes of constitutional law risks mischief on several levels and does not provide the firm foundation that is often supposed.

On disputed issues, history rarely offers clear original intent, and sometimes, as with the Fourteenth and Fifteenth Amendments, the record of their drafting and enactment by Congress show an intent in tension with their wording. How can those Amendments be construed to bar segregation when the same Congress itself signified approval of segregation in its appropriations and in comments on the floor by the advocates for the Amendments? And how can segregation be permitted when it is so at odds with the country's founding principles?

The Ninth and Tenth Amendments were meant to address concerns that a Bill or Rights might be construed to limit rights that were beyond its terms and that the grants of power to the new federal government might prove too expansive. Recently, the Tenth Amendment has had a revival of sorts in federal law as preempting a large category of civil rights suits against states.

Do not get me wrong. I agree with the constitutional thinking advanced by Scalia and Thomas. It is just that I -- and them, more importantly -- recognize its flaws and limitations.

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