I am told that Clarence Thomas has joined me in criticizing the 1964 New York Times v Sullivan ruling that the Warren Court used to pretty much give permission to the media to lie about public figures with impunity, burdening those lied about with the next to impossible task of proving that the lies were told with "actual malice" when in the world of legalistic make believe, even obvious malice wouldn't suffice to get relief.
The piece from NBC says:
Thomas called the ruling and similar ones in follow-on cases "policy-driven decisions masquerading as constitutional law" and said the court should reconsider.
"If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we."
President Donald Trump has repeatedly criticized the legal rules for libel actions, calling them a sham and a disgrace.
"We are going to take a strong look at our country’s libel laws, so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts," he said a year ago.
I will point out that the effect of overturning the ruling would certainly not have the effect that just about any of these guys, Thomas, Trump, the other side, the alleged liberal side would expect it to. To start with, imagine a United States in which FOX and other Murdoch properties, the other cabloids and tabloids, Sinclair, the goddamned New York Times could be sued by Hillary Clinton or John Kerry or Al Gore or Walter Mondale or any of the other Democratic candidates since 1964.
Imagine if they hadn't been able to lie about Hubert Humphrey in the way that was rampant in the 1968 election. I've given the chronology before 1960, Nixon loses, 1964 Supreme Court issues Sullivan Decision 1968 Nixon wins, setting off the spiral that we have lived under down the drain with Trump, today. Imagine if they had not been able to slander Anita Hill. Imagine if those who Trump had lied about could sue him into the flames of hell. He would have gone under and never have been heard from, again.
That the effect of the legal impunity the Warren Court granted would not be favorable to the rich and powerful and their servants on the right is indicated by the case which gave Thomas his excuse to criticize the ruling that he, I suppose, imagines would rehabilitate his character in history (when a lot more than the accusations of sexual harassment did that to him).
Thomas' comments came in an opinion on Tuesday concurring with the court's refusal to hear an appeal from Katherine McKee, who claimed she was raped by Bill Cosby. She said Cosby's lawyer leaked a letter that distorted her background and damaged her reputation.
Lower courts dismissed her case, citing the 1964 Times v. Sullivan precedent. They said by disclosing her accusation against Cosby to a reporter she "thrust herself to the forefront of a public controversy" and therefore had to meet the more demanding libel standard applying to public figures.
She appealed those rulings, and the Supreme Court declined to take the case by an apparently unanimous vote. Thomas said he agreed the New York Times precedent required that outcome, but he said the 1964 case was wrongly decided.
Before the Times ruling, Thomas said, a person claiming defamation needed to prove only that a statement was false and resulted in ridicule, hatred, or contempt. Libels against public figures were considered more serious than ordinary defamations, he said.
First, the idea that someone who may be a victim of a crime talking about that to reporters turns them into a "public figure" who can be lied about with impunity is outrageous. The people with the most to lose in such a scenario includes exactly victims of crime who cannot get police or prosecutors to take their accusations seriously. Women, children, LGBT people Black People, Latinos, the poor etc. The effect of such a rule would fall disproportionately on exactly the classes of people who are more likely to not be taken seriously by law enforcement.
Second, the burden that they prove they were defamed falsely was done by "actual malice" is something which is next to impossible to prove, it was, in reality a carte blanche for everything from the most piddling local rag to international media corporations to destroy people without risking much of anything and it has had a seriously dangerous effect on our politics and on public life in general.
The United States got along for almost two hundred years without the media having the freedom that that ruling gave it, though it had plenty that were used maliciously. The progress made under that previous regime of somewhat inhibited lying was what the freedom to lie has been used to attack. The Warren Court could have easily recommended that the NYT be ordered to print a retraction and to pay for the court costs, which they could well have afforded to do and which might have had the effect of making them slightly less likely to publish lies, such as the ones they told about such people as Hillary Clinton. If they had been more careful about facts it would have been less of a sleazy rag than it has been under the ruling it got from the Court. In fact, the entire media, knowing they had better be able to back up what they said would have been better and we wouldn't be living in so much of that "post-truth" world we live in. That "post-truth" is really an age of lies, the kind of lies that the ruling permitted. To pretend there is no relationship between the time line of that spiral into the sewer of lies we live in and that ruling is willful blindness. It is another lie, the fundamental narrative of that lie, the one promoted by the "civil liberties" industry which was as much a funded industry of the media corporations as Matthew Whitaker's sleazy operation exposed in the House last week was for the casino industry. And it has been even more corrupting.
With or without NYT v Sullivan, the dirty little secret of libel law is that you can only recover actual damages, not inchoate ones. You have to tie the libel to actual loss of money, not just damaged reputation (unless it's per se, and even then the only damages you're likely to recover are de minimus).
ReplyDeleteThomas is probably dreaming of suing people who write unkind things about him, not to get money, but just to have the satisfaction of shutting them up. He can afford the lawsuits, his targets (largely) can't. Something sort of undemocratic about that.
I've concentrated on the effect of the media being able to lie or spread lies about liberals, what the major public effect of that 1964 case seems to be. I certainly don't think libel laws here are all that good, though certainly better than the ones in Britain. If I had the time I'd try to research them in other places to see if maybe some other ones have features that make more sense.
DeleteI think the timing of the ruling and the rise of the results of lying in the media are no coincidence, it certainly isn't any accident that two of the most damaging figures of that period were and are the creation of the same media which were freed to lie with impunity. The "free press" as extended into electronic mass media have been the foremost tool of attack on egalitarian democracy, by billionaires and multimillionaires, now, thanks to the extension of that line of laws and the importation of Rupert Murdoch, foreign as well as domestic.