The Ongoing Smear Campaign against Brett Kavanaugh

Thank you for your reply. Again, I want to reiterate that I stated upfront in response to a post, about holding the press accountable for their lies, that the First Amendment lacks a qualifier on lying and that such is the cost of liberty. Thus, we're a bit far afield, put let's push on, Tenzing.

I don't have access to LEXIS but when I searched for your listed cases online, I could only find one of them (Respublica v. Cobbett, 3 U.S. 467 (1798)) which has more to do with jurisdiction (the defendant was an alien) vs libel, though variations of the word "libel" appears twice in the opinion.

In an odd sort of way, however, the aforementioned case highlights the problem with your assertion. The Alien and Sedition Acts that were signed into law by President Adams in 1798 basically, inter alia, criminalized making false statements that were critical of the federal government. Federalists (who were in power) supported the law while opponents of the Federalists (including Thomas Jefferson) opposed the laws. It is noteworthy that the Sedition and Alien Friends Acts both expired in the early 1800s. It's also noteworthy that they were never tested by SCOTUS but, depending upon who you talk to, they likely wouldn't have held up in court.

Perhaps a better insight into this topic is the Presidential Election of 1800. As we see here, a partisan newspaper editor called President Adams

that strange compound of ignorance and ferocity, of deceit and weakness; without regard to that hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.

I don't find any evidence of President Adams suing the editor, though I suppose as President he could have shut him down if that was the law.

From the founding of the nation until Sullivan, defamation was a civil issue, not a criminal issue. Furthermore, the situation varied from State to State. Thus, from a federal perspective - which was the point of this post - SCOTUS and the government were basically silent on the topic (aside from the Alien and Sedition Acts which was covered earlier).

Frankly, I'd be perfectly happy leaving defamation up to the States. But regarding the Federal Constitution...how many times do we say, regarding abortion, that it's not in the Constitution and SCOTUS just made it up? Similarly, if the Founders wanted a Constitutional limit on free speech vis-à-vis defamation, they'd have put it in there.

My recollection is that to prove defamation a public figure has to show actual malice on the part of the defendant.

And that is the heart of the issue. While one may assume evil intent on the part of the press for running with outright lies even when there is contradictory evidence available, all the press has to do is claim that they believed they were performing a public service by printing the (false) information. Turning up tangible evidence of intent is nearly impossible.

Proving intent should never be a legal requirement. The pertinent facts are that the press ran with a (false) story and reasonably should have been aware that other information was available, whether or not they took steps to verify what they published. If the requirement placed on the slandered party to prove "intent" were to be removed, victims of media slander would have some recourse. Also, the notion that public figures have no legal recourse needs to be ditched.

As things stand now, the media has free reign to print any lie they want. This is why we have been subjected to "Russia, Russia, Russia" for 3 years, even though the inherent logical impossibilities involved make such a claim absurd. And why we are being subject to more slanders on Kavanaugh. Who, ironically, may have only been confirmed because of the attacks and not because of his judicial wisdom; he has not been an ideal Supreme.

While I agree with what you say, I don’t think the Courts are ready to ditch the distinction between a public figure and a private person. In the case of a private person, negligence on the part of the defendant may be enough to prove defamation. (Full disclosure - while I am a lawyer, I am not involved in prosecuting or defending defamation cases). But, a public figure has to expect a certain amount of attacks against him/her by his opponents. If the Courts used a negligence standard, as opposed to actual malice, then public figures would have an easier time in shutting down opponents by claiming libel. While in the case of Justice Kavanaugh, or the President, those who attacked them should be held to account, the overall impact on the First Amendment rights of all of us would suffer and legitimate political dissent would be the first victim if a lesser standard of proof was applied to the case of a public figure. So, while I believe the Justice has been treated horribly by the NYT and other MSM, I am not comfortable with lessening the standard of proof needed by a public person to prevail on a defamation claim.

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