Justice Scalia: reflections on New York Times v. Sullivan

Sorry to be late to the party, but I somehow missed it back in early ’16. I became interested in Scalia’s take on the Sullivan decision, and recently found (and posted) JUSTICE SCALIA: THE 45 WORDS — AND ORIGINAL MEANING — OF THE FIRST AMENDMENT - another article covering very similar ground which also dates to February, 2016.
I found this thread while searching for a video I saw in which Scalia explained why the First Amendment does not, and was intended not to, touch libel law. Scalia’s point was that the Constitution was ratified on the condition that a bill of rights would be added by amendment. And states might have very easily have withdrawn their ratification (i.e., seceded) while the word “Constitution” wasn’t being capitalized because it was not a tradition.
So there the Federalists were, having a tenuous grip on their political desire - a strong federal government - and all they had to do was not mess up the Bill of Rights in order to keep it. In that situation, what you want to do is to find the least controversial way of expressing the rights of the people. You do not have an agenda to reduce anyone’s rights, you want everyone to agree that preservation of the status quo is being assured.
But the Federalists had left out any bill of rights in the text of the constitution for a valid reason - the rights of the people were basically common law, nowhere codified in any one place, or even a few places. Forced to create a Bill of Rights nevertheless, they included in it the

Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
. . . and that wasn’t the first amendment in the BoR, it was almost the last - meaning, that in no sense can the First Amendment be argued to override the Ninth Amendment.
As to the language of the First Amendment, Scalia noted that it refers not simply to “freedom of the press” but to “the freedom of the press.” Point being, that freedom of the press as traditionally limited already existed. And it was that freedom - not unlimited freedom, but freedom constrained by pornography and libel restrictions - to which 1A refers. ". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment” is therefore poppycock. Well, it would be - it was written by Justice William Brennan, and included in the New York Times Co. v. Sullivan decision. The First Amendment actually has no import WRT libel law. It is studiously silent about it. Therefore 9A prevails.
Brennan’s argument that 1A constrains libel law WRT libel suits by “public figures” begs the question as to why it permits a libel action if Joe Blow is libeled. Sullivan isn’t interpretation of the Constitution, it is judge-made law.
So there’s that. But there is another issue with “the media:”
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
Here’s the problem: just exactly who is "a reliable source?” In practical terms that has been considered to be the journalistic consensus - The New York Times and the wire services. But now that “the media” has blown its cover, how can an honest judge take “but I saw it in The New York Times” seriously?
The wire services are virtual meetings of all major journalism institutions - and Adam Smith was right to assert that “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.”
The “conspiracy against the public,” I submit, is centered on the self-serving propaganda campaign to the effect that “journalists are objective.” Good events are, in general, long in planning and execution - and thus do not qualify as “news.” Journalism would make more fuss over a house burning down than a hundred houses being constructed. Journalism is therefore systematically negative towards society and naive towards its corrective institution, government.
This means that the claim that “journalists are objective” is not only fallacious but cynical - the suggestion being that negativity (what actually describes journalism) is “objectivity.” Journalists know that actually trying to be objective is a difficult discipline, and no fun. They also know that if they go along ideologically with other journalists, no journalists will complain that they are not objective - and if they do compete ideologically with other journalists, they may be condemned as “not a journalist, not objective.” The effect is herd behavior by journalists - and redefinition of the term “objective” to mean, “in accord with journalism’s ideological consensus.”
And “objective” is far from the only word which journalists have redefined. Other words which have virtuous implications - “liberal,” “progressive,” “moderate,” and “centrist” have been redefined to mean what journalists have distorted “objective” into meaning. The only difference being in acceptable - to journalists - usage: “objective” is to be applied only to journalists, and never to non-journalists. And no other adjectives are ever to be applied to a journalist.
The redefinition of words is thus another, related, “conspiracy against the public” just as “journalists are objective” propaganda is. But since nobody gets labeled “liberal” by journalism unless they are in full go-along-and-get-along mode with journalism, “liberals” never get libeled.
The Sullivan decision comes from the position that “the press” is weak and beleaguered. The reality is that, because it functionally is a cartel, “the press” is the Establishment. As such, “the press” has exploited Sullivan to prevent the truth from prevailing over lies. The press reaction to the Kavanaugh hearing certainly should have told SCOTUS that.
Because wire services have inherent anticompetitiveness built in, and because the only “justifiable" rationale of the wire service is to conserve expensive telegraphy bandwidth - wire services are an unacceptable violation of antitrust law. The “expensive” telegraphy bandwidth is, and long has been, dirt cheap. And nobody is “a reliable source” except a jury verdict. We wouldn’t need trials if we could read the truth in the paper - and know it was the truth.

Trump’s threat to change libel laws and ramp up “law fare” (using aggressive litigation to silence dissent) further serves the interests of the tyrannical left. The inevitable result is that only the officially government approved spin will be allowed, regardless of the facts.

First, let me remark that your post dates back to before Trump won the nomination - and that I myself favored a different candidate myself back in Feb ’16.
But on the substance, "Trump’s threat to change libel laws and ramp up “law fare” (using aggressive litigation to silence dissent) further serves the interests of the tyrannical left” is imho incorrect. There was, and is, no real prospect of a legislative change in libel law. I agree with Scalia that the Warren Court was wrong in ’64, and that Sullivan should and must be overturned. But legislatively? Bupkis is coming that way.
And “law fare” is precisely what is called for IMHO. The journalism cartel is the Establishment, and it needs to be sued into oblivion.

Thanks for the ping;.posts. Fascinating discussion. Just don’t let loved ones find you with a pillow/penumbra over your face. America’s robed mullahs have 600 ways to Sunday.