THIS IS THE THIRD part of my critique of the "free speech-press" orthodoxy as promoted by the ACLU and the Supreme Court, in which several central hypocrisies of that orthodoxy are pointed out, in refuting Stephen Rohde and his target, Bert Neuborne
But Neuborne would change all that. He would replace the Sullivan “actual malice” standard with a much higher duty, requiring that writers, speakers, and the media meet a “reasonable standard of care” in determining whether to utter “harmful speech.” He claims that’s what “good” journalists do. He ignores the devastating impact this would have on journalism and freedom of expression — judges and juries would be empowered to decide whether a speaker had acted “reasonably,” like “good” journalists do, even if there was no proof that the speaker actually knew his or her statement was false. And judges and juries could decide that controversial or unorthodox speech was “harmful.”
Notice what the lawyer Rohde does here, he defines the practice of responsible journalism, being careful NOT TO PUBLISH LIES as some outrageous requirement for the mass media, as being an outrageous burden on "the press." Including mass media which makes enormous profits and has enormous budgets. This inflation of a basic responsibility into a crushing burden seems to me to be quite a typical lawyerly dishonest exaggeration, not that unrelated to the outrages that courts regularly entertain to the discredit of the legal industry and, I hope, the judiciary that collaborates in such dishonesty. It does nothing for the reliability and so repute of the alleged profession of journalism. And in making the assertion that what should be defined as the first responsibility of credible journalism as an outrageous burden, the Court, at the "civil libertarian's" bidding created a truly impossible to meet burden on those it victimizes with intentional lies. In doing so the Warren Court does what that Court so often does, it privileges powerful, wealthy corporations and their owners and robs those wronged by the wealthy and powerful of their rights.
It was the post-freudian demand by the Warren Court that people lied about by the media do what is virtually impossible in almost all cases, establish the mental state of those who lied about them before they can be provided with justice by the court that is an outrageous burden, not the one which, before the trade mark Warren Court bombshell of that decision dropped on American democracy was a possible means of both giving relief to those lied about and to punish the liars so that, perhaps, they wouldn't do it again. Considering the lies the "press" engaged in and got away with back then, often with the help of their lawyers, it was hardly much of a burden to their ability to get away with intentional lying.
In doing so he also does what virtually the entire history of First Amendment babble does, it ignores that "the press" is a human, not divine creation, an invention, invented to magnify the power of what is said in it. The media having the power to magnify the malignity of lies far beyond what any one person exercising a "right" to lie would have should, if anything, force their obligation to not lie to be considered as the prerequisite for them to be given an artificial "right" to publish. There is an important though ignored distinction between the natural rights of individual people and the "rights" granted in the First Amendment to human made entities and institutions, including religions. To pretend that any corporate entity has "rights" which are the same as the natural rights of individuals, endowed with those by God, their "Creator" has proven to be extremely dangerous. It is how judges and "justices" can get away with pretending not to see that crooks and hucksters taking advantage of the gullible is the same thing as one of our local UCC churches that is dedicated to service to the poor, the sick and the addicted and otherwise vulnerable, that the gangster members of the US Catholic Conference of Bishops do the same thing as the Nuns On The Bus or the Medical Missionaries of Mary. But that's a different problem from the one I'm doing this for. "The press" is an artificial entity, it does not have the same kind or level of genuine rights as human beings or, I'd assert in other arguments, animals.
If his assertions that judges and juries are incompetent to judge things such as the difference between lies and the truth, harmful and innocuous behavior THINGS WHICH THEY DO IN OTHER CONTEXTS EVERY DAY AND WHICH DEFINES BOTH THE RESPONSIBILITY OF JUDGES AND MEMBERS OF JURIES, what he's said is that the very courts doing what they do, certainly at the ACLU's and his own insistence, is impossible. I would love to see the cases Rohde has been involved in, that the ACLU has brought to wonder if these things that he asserts are not possible have not, in fact, been things requested or even demanded by them that judges and juries do. If the standard of doing that is the impossible to meet one of perfect fidelity to discerning the truth, of assessing harm which he asserts it is, then he is part of one of the biggest frauds ever perpetrated on the human population. I doubt he or the ACLU would ever hold that in other matters in which its clients and, so, its lawyers interests contradict his assertion.
But as Justice Robert Jackson wisely wrote in 1943, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Without referring to Justice Jackson by name, Neuborne complains that the “modern First Amendment is shaped by an almost pathological mistrust of government’s ability to regulate speech fairly.”
To start with Robert Jackson's statement is clearly a self-contradiction, his statement is to establish a position of orthodoxy. What he describes has certainly become the orthodoxy of the legal profession, issued by a member of the Supreme Court, the Supreme Court probably the source of more statements to be taken as orthodox with the legal and, ultimately, police power to do far more than "confess by word" but to force compliance with their acts by people whether or not they have any faith, therein. What the hell did he think his job on that court was? Supreme Court rulings are exactly the things that he claims to disdain in his statement.
The Sullivan and post-Sullivan rulings are such orthodoxy that when I started my critique of them online in 2006, people were furious that I even raised the issues of what they were leading us to. That the experience of and witness to the anti-truth, post-truth Trump regime and its continuation in the Republican-fascist attempt to destroy equality and democracy, THROUGH THE SUPREME COURT IF NOT THROUGH THE ELECTED BRANCHES only proves how totally wrong this whole bunch of Jackson brand baloney has been.
“Pathological”? Between Neuborne and Justice Jackson, who also served as attorney general of the United States and chief US prosecutor at the Nuremberg trials, Justice Jackson makes the far better case that the whole point of the First Amendment is not to trust the “government’s ability to regulate speech fairly.” Or better yet, as James Madison himself put it: “The truth is that all men having power ought to be mistrusted.”
It is kind of amusing how, even as he just denigrated "orthodoxy" and those with power, he cites Jackson's positions within the orthodox power structure to add weight to his use of a statement he made. Typical of the hypocrisy of the "civil liberties" style of advocacy.
It is especially ridiculous for Madison, a man who was in politics his entire professional life, whose power in not only the presidency BUT AS ONE OF THE MAIN AUTHORS OF THE MOST POWERFUL DOCUMENT IN AMERICAN POLITICS AND LIFE to make that statement about mistrusting "all men having power." It is ridiculous for Rohde and others who hold up those two century old words, by rich, white men, most of whom held people in slavery and maintained laws depriving those people of all of their rights, who were engaged in a continuing campaign of genocidal theft of land from the previous inhabitants of it and who held all adult women in subjugation, as rightly determining our laws and government today, despite what the history of struggle against all of those things I just listed and more have taught us. Madison, Jefferson, Washington, etc. exercised some of the greatest ongoing power there has been in the United States and it is the demand of the ACLU and others in the "civil liberties" industry that it is the thinking of those 18th century white, male aristocrats that must limit the actions and thinking and, yes, expression which we are allowed today.
I will note in passing that the "civil libertarians" are far, far more tolerant of the expression of white supremacists, the continually indigenous form of American fascism, many of the fabled "founders" shared in than they are my reasoning on why we should prevent the fascists, the import of neo-Nazism and the domestic variety as expressed in white supremacists and segregationists from the possibility of repeating a history that they have proven themselves to be all too capable of gaining power, gaining control and doing the most terrible things, up to and including terror campaigns of lynching and murder. I doubt the ACLU would really think I should be saying what I am saying here and would, at least privately, welcome its suppression.
It is convenient to Rohde's, the ACLU's and Jackson's claims to pretend that all power and all such danger resides in the government and that the government is not vulnerable to the manipulations of those with much money and, so, much power when such power and its use is the subtext of practically all of human history, certainly including that of the United States, the writing of the Constitution, the Bill of Rights and all of the rest of the amendments and revisions to it as vulnerable to that as anything else.* And the Court, addicted and addled by such lofty free-speech-pressyness has made things infinitely worse by first making money=speech and then unleashing that money=speech to corrupt government, using the First Amendement to kill the rescue of democracy in the campaign finance reforms passed by both parties in the wake of the Nixon crime spree being exposed. The Court, the ACLU, the "civil liberties" lawsters in the pay of the media, pornographers, etc. have done more damage to democracy than any idiot haranguing a crowd on a street corner as the Court may have imagined in 1919 or even 1951. Pretending that the power of mass media didn't change things entirely from the day of page-at-a-time hand printing known to the First Congress is insanely delusional. I would note the refusal of William Clinton to take out the radio tower that was broadcasting the location of potential victims to their killers during the Rwandan genocide on the principle of "freedom of the press" as an extreme but all too real result of this civil libertarian position. The revelation of that, making my own country complicit in that atrocity by omission certainly had a profound influence on my thinking about these issues.
They also choose to ignore that when it is a person or a group who sues someone for lying about them, it is a much different thing from the government going after someone for "unorthodox" speech. Many of the worst of the lies told about individuals and groups of people are entirely "orthodox," the orthodoxies of racisim, sexism, etc. are deeply embedded in not only our society and, so, our government and within the law. Many lies are entirely orthodox in that sense of the word and if the courts are not to refute them then they are a party to that orthodoxy of lies.
Neuborne apparently missed the poetic force of Madison’s warning. Instead, he urges that First Amendment limits imposed on governmental restrictions on speech “be loosened to give the regulators some breathing room.” Ironically, whereas Madison and modern First Amendment law seek to give free speech the “breathing room” it needs, in Neuborne’s hands it’s the government that needs “breathing room” to regulate speech.
Back to friggin' Jemmy Madison, I'd like to get shut of him, myself but I am following Rohde's quite orthodox slamming of Neuborne's orthodox claims of fidelity to that slave-owner's corpse, the better for its hands to strangle us today.
The next section of Rohde's take-down of Neuborne is especially worthy of dissection and refutation because it is one of the most malignant aspects of the Supreme Court-ACLU orthodoxy of free speech-press absolutism, one which I'm sure they were content to allow so long as it didn't endanger them, though it certainly endangered those who were the targets of white supremacy, women, etc. I think that what they were doing was playing a game of chicken with history, one in which the central assumption on their part was that it couldn't happen here when, for Black People, Native Americans, Women, etc. it has happened here more often than it hasn't. But I will take that up on its own.
* It is ironic that it is James Madison's own papers, his own extensive records of the deliberations of the Continental Congress and the machinations around the creation of the Bill of Rights that proves the extent to which the founder's own financial interests, those of their fellow aristocrats in the various states and the country as a whole figured into what they put into the thing. I have repeatedly advocated that people read the great abolitionist Wendell Phillips' analysis of that, written soon after Madison's papers were published, after his death, which exposes the extent to which the corruption of slavery figured into what is still the way the United States government was set up to rig things for white supremacists, slave owners. Things which have thwarted and still thwart the attempt to establish that thing which the Supreme Court has made sure is elusive and temporary, equal justice under the law.
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