Media Will Never Understand The Country So Long As They Keep Hating Trump Voters

The Federalist ^ | 02/14/2020 | John Daniel Davidson

[jmacusa]

F**k Carville, aka “Gollum’’. He helped to create this atmosphere.

[TBP]

They don’t think they need to understand us. They’re our “betters,” after all.

They need to be broken up.

[SoConPubbie]

:)

[conservatism_IS_compassion]

They don’t think they need to understand us. They’re our “betters,” after all.

They need to be broken up.

The fundamental fallacy they push is the same fallacy that the Warren Court promoted in its infamous New York Times Co. v. Sullivan holding.

That fallacy is that the First Amendment changed the rights/responsibilities of the press. Justice Brennan, writing for a unanimous Warren Court in Sullivan, asserted that

". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment”

We all grew up agreeing with the First Amendment, and we accordingly incline to shout, “Amen!” But Antonin Scalia pointed out the fallacy in that line of thought. As we all know, the Bill of Rights is the fulfillment of a promise made by the Federalists in order (narrowly) to obtain ratification of the Constitution. The Ninth Amendment

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

actually defines the sum total of the intent of the Federalists at the convention. The first eight amendments, OTOH, enumerate only the rights which had historically been violated by tyrants. The intent of enumerating them, obviously, was

1. to assure the public that they would indeed be respected by the federal government, and
2. to get them successfully ratified without controversy.

That second, crucial objective, illuminates the point that the Federalists weren’t trying to push the envelope on those rights. And that means that the First Amendment refers not to (absolute) "freedom of the press” but to “the freedom of the press” - existing freedom, limited in exactly the same way by libel (and other) restrictions. Reducing rights such as the right to sue for slander or libel would have risked controversy, and the Federalists had no incentive or expressed desire to risk that.

In short, libel law is covered by the Ninth Amendment and was not touched at all by the First Amendment. And SCOTUS understood that, all the way from the ratification of the Bill of Rights until 1964.