THIS WEEK HASN'T been a very good one for me listening to the news, I got overloaded on Reconciliation Bill click-bait freak-out on MSNBC so I have been limiting what I listen to online. So I didn't catch Ari Melber's special report on that issue I've stressed since before I started writing online, the Sullivan Decision and its progeny and how the Supreme Court has empowered right-wing lies through that stupidly written decision. Stupidly, I say, because
a. It empowered the very side OPPOSED TO the MLK side Ari Melber speaks on behalf of, it empowered America's indigenous fascists, the white supremacists and the Republican Party which was in the process of taking them in as they left the Democratic Party for putting the Civil Rights and Voting Rights acts into law. Which happened the very same year the decision was issued. That high point of the American civil rights struggle has been receding, washed away by media lies ever since then.
b. It made no distinction between the absolute right to tell the truth without punishment and the fact that not only is there no right to lie but that lies, often individually but always cumulatively produce bad results. He's not alone in that, the badly written First Amendment also neglects that vital issue for government of, by and for, The People and our right to legitimate governance.
c. That We The People MUST HAVE THE TRUTH TO CAST EFFECTIVE VOTES AND PRODUCE LEGITIMATE GOVERNMENT, and that that right is damaged by allowing the mass media to lie and to carry lies that will gull people from knowing the truth that, as it says in the Gospel, will make us free.
Ari Melber uses several outrageous cases, one in which a Republican-fascist , Putin friendly media outfit sued MSNBC, his network, alleging defamation against Rachel Maddow's show, but his choice to use that is inapt. This account of the original ruling is how I remember reading it at the time:
One America took particular issue when Maddow, in her segment, also said “the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda.”
Maddow made the statement after the Daily Beast ran a story by Kevin Poulsen reporting that one of One America’s on-air reporters, Kristian Brunovich Rouz, also was on the payroll for Sputnik, the Kremlin news outlet. One America then demanded a retraction.
In their lawsuit, One America said that “Rouz has never been a staff employee of Sputnik News. He worked as a freelancer for Sputnik News and his work there had no relation to his work for OAN. Rouz submitted articles to Sputnik on his own and would receive approximately $40 if the articles were accepted.”
In her ruling, Bashant wrote that even though Maddow used the word “literally,” she “had inserted her own colorful commentary into and throughout the segment, laughing, expressing her dismay (i.e., saying ‘I mean, what?’) and calling the segment a ‘sparkly story’ and one we must ‘take in stride.’ For her to exaggerate the facts and call OAN Russian propaganda was consistent with her tone up to that point, and the Court finds a reasonable viewer would not take the statement as factual given this context. The context of Maddow’s statement shows reasonable viewers would consider the contested statement to be her opinion.”
The lawsuit also claimed that Maddow’s remarks were retaliation against One America because its president, Charles Herring, had called out parent company Comcast, “for their anti-competitive censorship” in refusing to carry the conservative channel.
I don't see how that is relevant to the Sullivan Decision which I don't remember as having much of anything to do with "opinion." The issue of whether or not the "reporter" in question was an agent of paid Russian propaganda doesn't seem to have entered into it. Though I'm sure that the quibbling over whether or not getting paid the way the did would have made what Rachel Maddow said inaccurate of not, it certainly wasn't the kind of lie that is swamping American democracy as Melber's colleague at MSNBC, Chris Hayes documented in an excellent piece, getting scores if not hundreds of thousands of Americans killed by Covid, endangering elections officials - as Rachel Maddow covered on her show not long after Melber's piece aired. If anything, Sullivan and its foul descendants have done more for the OAN side and the Republican-fascists than it has for the disciples of Martin Luther King jr.
IF THE REPUBLICAN-FASCISTS THINK THEY WOULD COME OUT ON TOP IF LIES WERE PUNISHED, THEY ARE AS STUPID AS TRUMP IS. If Trump could have been sued for all the lies he told about Black teenagers, other Black People, Women, Democratic politicians, REPORTERS AND ANNOUNCERS, he would have been bankrupted many times more than he has been.
I wonder what would have kept an OAN from bringing a frivolous lawsuit of this kind AND AN MSNBC DEFENDING ITSELF AGAINST IT TO THAT THEORETICAL OAN'S COST before the Sullivan Decision was issued. I'm no student of the history of lawsuits being thrown out in that manner but I'd really like to see if anyone has made such a study.
The other cases he used involved the use of British courts for gangsters from the Putin oligarchy trying to suppress books that can't be published in Britain without risking ruinous frivolous lawsuits - I'm no great fan of the Brit law on this so that's got nothing to do with what I'm talking about - is also inapt. That British law is terrible in regard to the right to publish the truth has the same effect as the Sullivan Decision does in regard to the benefit of truth telling, it damages the power of the truth to bring the benefits of it being known.
Using Martin Luther King jr. the way that he did in the piece was hardly honest as he was not a party to the lawsuit, though his close associate Ralph Abernathy was
The court went way, way out of its way to turn what should have been thrown out as a triviality to open the way for the massive lying by the media that now endangers American democracy. Here, from the ruling are the facts and a little of the commentary on it:
5 Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent's claim of libel. They read as follows:
Third paragraph:
6 'In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.'
Sixth paragraph:
7 Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for 'speeding,' 'loitering' and similar 'offenses.' And now they have charged him with 'perjury'—a felony under which they could imprison him for ten years. * * *'
8 Although neither of these statements mentions respondent by name, he contended that the word 'police' in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of 'ringing' the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission.2 As to the sixth paragraph, he contended that since arrests are ordinarily made by the police, the statement 'They have arrested (Dr. King) seven times' would be read as referring to him; he further contended that the 'They' who did the arresting would be equated with the 'They' who committed the other described acts and with the 'Southern violators.' Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King's protests with 'intimidation and violence,' bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as Commissioner.
9 It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration on the State Capital steps, they sang the National Anthem and not 'My Country, 'Tis of Thee.' Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day. Not the entire student body, but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing semester. The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a preregistration application nor requested temporary meal tickets. Although the police were deployed near the campus in large numbers on three occasions, they did not at any time 'ring' the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times, but only four; and although he claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault.
The complete triviality of the errors of fact, the fact that the guy wasn't accused of anything and the resultant tsunami of lies that it unleashed into American life, American politics, this might be one of the worst misjudgements by alleged liberals in the history of such misjudgements, so many of those made because the First Amendment doesn't distinguish the absolute right to tell the truth and the fact that there is no right to lie. The Warren Court became addicted to issuing bombshell, block buster rulings, the few it did to good effect and the many it did with from anything to mixed results to the disaster that brought us to Trump and today's Republican-fascists should not allow their wisdom and foresight to be taken for granted.
The outrageously irresponsible results are especially bad considering paragraph 11 of the ruling says the "damaged party" presented no evidence that he'd been damaged.
11 Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged libel. One of his witnesses, a former employer, testified that if he had believed the statements, he doubted whether he 'would want to be associated with anybody who would be a party to such things that are stated in that ad,' and that he would not re-employ respondent if he believed 'that he allowed the Police Department to do the things that the paper say he did.' But neither this witness nor any of the others testified that he had actually believed the statements in their supposed reference to respondent.
I am no lawyer but why this case wasn't thrown out on the basis the guy had no right to bring a lawsuit in the first place seems to me to have been a far safer alternative than giving the New York Times the "right" to publish lies with impunity. Lies like the ones it printed against Hillary Clinton that certainly, magnified by the mass media 24-7-365 corporate media and the even worse social-diseased media online helped put Trump in office along with so many of the Republican-fascists who are nullifying the second Democratic presidency in a row.
I don't know if, as was suggested to me, Ari Melber was responding to what I said here but, lawyer that he is, maybe he'd like to deal with such issues this brief response to his commentary raises. I'd most like to know if he holds that there is a right to lie which is not at least vastly inferior to the right of We The People to know the truth and for the truth to not be swamped with lies so as to prevent us from being free.
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