The Supreme Court and Libel
Judges legislating from the bench is almost always a bad idea with unforeseen consequences.
At Princeton’s commencement this week, their president’s speech was basically a paean to this decision, and a call to all graduating students to defend it. They must be getting worried…
Thanks for the heads up. I will certainly buy and read, though I know I will find the entire topic beyond depressing. Sullivan was the first of many blows to journalism and the beginning of the end to democracy in America. By allowing moneyed and state -interests unfettered access to lying with impunity, the stage was set for Hoax Inc. (otherwise known as the Democrat party platform). Kavanaugh pulling the train hoax. The Trump Russia hoax. Valerie Plame gate. Hoax after hoax after hoax. Sullivan meant the fabulists gained an upper hand in every newsroom, and the honest journalists were ejected from the public square.
I used to charitably put Sullivan in the camp of good cases make bad law. Apparently, this was also a very bad case.
Since I was in law school decades ago, I've thought that judges betray their oaths when they enact their own policy preferences by overruling the choices made by the elected branches of government where the Constitution does not clearly so require. For that reason, although I personally favor allowing abortion on demand in the early stages of pregnancy, and while I would vote to recognize same-sex marriage, I regard Roe v Wade and Obergefell v Hodges as among the worst decisions ever handed down by the Supreme Court.
Given that outlook, I have some sympathy with the criticism that Times v Sullivan simply made up new law out of whole cloth. But in that instance, I think the Court's (unanimous) interpretation was necessary to effectuate a basic purpose of the First Amendment -- to allow sufficient breathing space for press criticism of government. The Court might have reached the same result, perhaps less controversially, by ruling that the First Amendment would not allow the imposition of civil liability for, essentially, criticizing a government agency by allowing a public official unnamed in the report to sue.
But applying the "actual malice" standard to "public figures" went too far in revising the law of defamation for the entire country. So I agree with Glenn that the Court might well reconsider the rulings that did this.
Interesting since I am a businessperson and not a lawyer. I wonder if you backtested this new precedent made from the bench if it would affect the outcome of prior cases? Would perhaps Jefferson or Hamilton have acted differently during their feud in the Adams election? Your conclusion about the strengthening of the establishment media is also interesting, and as you say no one could have seen that coming. During the Trump Era, we saw how that decision shaped coverage.
Dear VoiceGPT AI: Make me a recording of [FAMOUS_REPORTER] promising to destroy my reputation regardless of the truth.
I’ve been seeing the “Sullivan” decision alluded to many times over the past decade.
Having you (Glenn) clearly explain what it is and what it means is worth the price of my Substack subscription!
So now we have Deep State, DNC, MSM coordinate and lie about their political opponents. Without consequence. At great harm to our country. Great job Brennan.
It took a long time for it to bite them in the behind, but them insisting that news media don't need to tell the truth has turned them into no more a source of real news than the National Enquirer (I'm so old I remember when they broke the story about Gary Hart, wasn't it?). They're romance novels for political junkies.
The Sullivan case is just one more example of the Elites (Brennan) legislating their views from the bench. As noted in Glenn's essay this decision has broadened First Amendment protections beyond the original intent of the framers allowing judges to legislate their ideas of what constitutes "fairness' and make it part of the "living" constitution. Thank God for Scalia, Thomas and Alito!