Are the Courts Moving to Require a More Responsible Press?

Associate Justice Clarence Thomas poses for the official group photo at the Supreme Court in Washington on Nov. 30, 2018. (Mandel Ngan/AFP via Getty Images)

Commentary

In 1964, the U.S. Supreme Court issued its decision in the case of Sullivan v. the New York Times, a landmark opinion regarding libel law and a gift to irresponsible and inaccurate journalists across the land. Issued during the civil-rights era—a time when many constitutional protections were unthinkingly tossed aside in the name of a higher good—Sullivan essentially gave carte blanche for media companies to attack public figures with legal impunity.

The case began in 1960 when the Times ran an ad from supporters of Martin Luther King, Jr. requesting donations to help the civil-rights leader. The ad, “Heed Their Rising Voices,” was the brainchild of King’s close advisor Bayard Rustin (a former Communist and early gay-rights activist), and sharply criticized the Montgomery, Ala., police, charging the cops with “an unprecedented wave of terror.”

While the ad named no names, it came to the attention of the Montgomery police commissioner, L.B. Sullivan, via a local libel lawyer, who convinced Sullivan and the city fathers they should bring a defamation action against the Times, especially since the ad had implied police complicity in the bombing of King’s Montgomery home in 1956.

Hitherto, libel law had been fairly straightforward. Opinion was protected by the First Amendment but factual accuracy was required; the burden of proof regarding a contentious statement lay with the defendant and to that end, the Times and other responsible journalistic organizations employed fact-checkers, not only in the news columns but the in ads as well.

In this case, the ad copy had apparently sailed through owing to the prestige of Rustin and the others behind it, including the black civil-rights leader A. Phillip Randolph, and Harry Emerson Fosdick, the white former pastor of the Riverside Church in Manhattan.

It was an open and shut case, especially under the strict Alabama libel laws: after a three-day trial the jury found in favor of the plaintiff, Sullivan, and awarded him half a million dollars. The Times appealed.

Writing for the Warren Court, liberal Justice William Brennan, brushed aside the ad’s factual inaccuracies and even prior Supreme Court precedent, choosing to view the case instead as an opportunity “to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct,” wrote Brennan. Debate, he said, should be “uninhibited, robust, and wide-open.”

To that end, the court constructed a new libel law for “public figures”: the statement in question had to be false; the maker of the statement had to have known, or should have known, it was false and communicated it to a third party; and the statement had to be made with either “actual malice” or “reckless disregard” for the truth.

The vote was 9-0, with several radical justices—former Ku Klux Klansman Hugo Black, William O. Douglas, and Arthur Goldberg—pushing for absolute immunity for government critics, even if they were acting maliciously.

Re-evaluation

The decision, while liberating for the press, has been problematic for our democracy ever since. As the media has become more and more partisan—institutions such as the Times and the Washington Post are today indistinguishable in their policy positions from the Democrat Party—and take a frankly activist attitude both in their news and opinion columns on all current “social-justice” issues.

Since both malice and reckless disregard go to state of mind, they’re hard to prove in court—but does anybody really doubt that today’s media is fully capable of “actual malice”?

In fact, no less a figure than Justice Clarence Thomas has called for Sullivan to be re-evaluated on constitutional grounds. Writing in early 2019, in a case involving one of Bill Cosby’s accusers in which “malice” lay at the heart of the case, Thomas noted that the “actual malice” standard/get-out-of-jeopardy-free card was “almost impossible” to legally satisfy.

“If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we,” he said, calling the “malice” test “a judge-made rule of law.”

Now another distinguished jurist has entered the fray: Laurence Silberman, senior judge of the D.C. Circuit Court of Appeals. In a dissent earlier this month in a libel case, he echoed Justice Thomas: “After observing my colleagues’ efforts to stretch the actual malice rule like a rubber band, I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that ‘New York Times’ was a policy-driven decision masquerading as constitutional law… As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. ‘New York Times’ should be overruled on these grounds alone.”

But Silberman went further, with the media in his crosshairs: “The increased power of the press is so dangerous today because we are very close to one-party control of these institutions…. It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news.

“It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness—if not eagerness—to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.”

Veritas Victory

In short, the dam may be breaking. James O’Keefe’s gadfly Project Veritas won a small but significant victory against the Times the other day when a New York State Supreme Court judge ruled against a Times motion to dismiss a defamation suit against a report that called a Veritas video of possible election chicanery in Rep. Ilhan Omar’s congressional district in Minnesota “deceptive… with no verifiable evidence… probably part of a coordinated disinformation effort” and attempted to link the video to the Trump campaign, of course.

“Stating that the video is ‘deceptive’ and stating ‘without verifiable evidence’ in a factual way in a news article certainly presents the statement as fact, not opinion,” wrote Justice Charles Wood. He said the Times may have been motivated by “actual malice” and had acted with “reckless disregard.”

Good for him. Freedom of the press is a wonderful thing—especially now, when the “progressive” left has all but called for its abolition of the first amendment in its quest for a one-party socialist state.

For more than half a century, the mainstream media has abused its powers under the protective shield of the Sullivan decision. At this point, however, with the national media now weaponized against traditional American law and values, the ruling is no longer a shield, but a sword.

Michael Walsh is the editor of The-Pipeline.org and the author of “The Devil’s Pleasure Palace” and “The Fiery Angel,” both published by Encounter Books. His latest book, “Last Stands,” a cultural study of military history from the Greeks to the Korean War, was recently published.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.