The freedom of expression being enjoyed today by the various right wingnuts was not a pleasure always enjoyed by American citizens. As recently as the middle of last century, calling any elected official such names as “socialist,” “fascist,” or ”Nazi” could have been grounds for a liable judgment… or worse.
This story has roots in the 1955 Montgomery, Alabama bus boycott (remember Rosa Parks?). In response to the Montgomery political machine’s actions, both during and after the decision in Browder V. Gayle, four black ministers decided to seek help and funding for the cause of segregation. They composed and paid for an advertisement to be placed in the New York Times, critical of a recalcitrant south. Montgomery elected officials responded by suing the four, including Martin Luther King and Ralph Abernathy, for defamation. The first of these actions, awarded by a state court and resulting in a $500,000 judgment against the Times, was later overturned by the Supreme Court.
In New York Times v. Sullivan (1960), SCOTUS ruled the existing common law of defamation of public officials violated free speech guarantees. The Warren Court held a citizen's right to criticize government officials to be of such tremendous importance in a free society that we could accommodate it only by tolerance of such criticism, even though the charges might eventually be determined to contain incorrect allegations.
In Sullivan, SCOTUS eliminated common law presumption of falsity and malice, and laid the burden of proof on the plaintiff to show that, at the time the defamatory statements were made, the defendant either knew them to be false, or showed reckless disregard as to the veracity of the statements. In other words, the onus was on the plaintiff to prove first that he was harmed, and secondly that the defendant did it on purpose. Until this ruling, only the harm provision required proof.
The social and political context of the times certainly influenced their decision. The source of the alleged defamation was an editorial advertisement placed in the New York Times, titled "Heed Their Rising Voices". Without naming names, the advertisement pointed caustically to the ongoing segregation dominating southern states, in spite of many court rulings prohibiting the practice. Some very prominent, well-respected individuals lent their name to the advertisement, including one of the leading names in fairness and desegregation of the time; Eleanor Roosevelt.
The advertisement detailed grievances, described abuses, and asked for financial support for the desegregation cause. Justice Brennan described the group sponsoring the advertisement as one "whose existence and objectives are matters of the highest public interest and concern." Justice Black described the controversial heart of the suit as “[O]ne of the acute and highly emotional issues in this country.” Black further described the efforts of many people, public officials included, who continued to enforce racial segregation in public schools and other public places, “despite our several holdings that such a state practice is forbidden by the Fourteenth Amendment.”
Plaintiff Sullivan, a white elected commissioner from Montgomery, Alabama, in claiming that he was personally injured by the advertisement, had several hurdles that he failed to clear. The advertisement did not mention him by name. Only 35 copies of the offending publication were circulated in that city, and only 394 in the entire state. The original trial that found the Times liable took place in a segregated courtroom, in Montgomery, before a white judge and all-white jury.
In overturning the verdict, SCOTUS viewed the libel action as a very serious attack not only on 1A freedoms, but on the desegregation of the southern states. In Justice Black’s words, the Court was concerned that a large damage award would threaten "an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials."
SCOTUS was further concerned because another libel verdict of $500,000 had already been awarded against the Times to another Montgomery elected official who was making the same claims as Sullivan, and 11 other libel suits arising out of the same advertisement were pending.
However, probably the greatest motivating factor for this radical change to previously sacrosanct common law was a judicial view to the effect that the statements of public officials, coming "within the outer perimeter of their duties" were privileged unless actual malice was proved.
The rationale behind this privilege, originating in Barr v. Matteo (1959), was that the threat of damage suits would "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties," SCOTUS, in the Sullivan decision, decided that parallel considerations supported protection for critics of the government and of elected officials.
Thus honest citizens may protest the actions of the government or any elected official, so long as they do not intentionally lie, or act with reckless disregard of the harm they may cause.
For the full history of this landmark case, please read New York Times Co. V. Sullivan Forty Years Later: Retrospective, Perspective , by W. Wat Hopkins.
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4 Comments:
"an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials."
Too bad that is no longer the case. Unless of course, the pol being criticized has an (R) after their name...
But you're right. The freedom to criticize our government is important enough that the bar for proving libel or slander needs to be very high indeed.
In the days of Rosa Parks, Montgomery was run by a bunch of (D)'s who were behaving badly... so the press took note and the Court took action... then Johnson poked a stick in the anthill by signing the voting rights act. Those (D)'s changed hats and continued their behavior. (R)'s have had great success in the south over the past 40 years or so.
I suppose it is an individual's perspective which dictates who the press should be targeting.
I think the press should target, mercilessly, any political figure who lies or otherwise betrays the public trust, regardless of which end of the political spectrum in which they reside.
And when there is no obvious wrongdoing to expose, then they should objectively and impartially report the facts of an issue, and let the readers/listeners/viewers decide.
But you and I both know that is no longer the case. Before, during and immediately following the election, the mainstream media was so in the bag for Obama that it was sickening. They totally abandoned any pretense of objectivity. The only major source of anti-Obama coverage was Fox News, and as you've correctly pointed out numerous times, they were obviously biased the other way.
Such is the state of media today. Those who would report without slant stand out like diamonds in a coal bin, and are just as rare.
If you want right-wing vitriol barely grounded in fact, listen to O'Reilly and Limbaugh and Fox News. If you want leftist vitriol barely grounded in fact, watch Olberman and MSNBC, read the New York Times, or listen to a steady diet of National Proletariat Radio.
Well actually, you can find leftist bullshit pretty much everywhere you look in the mainstream media, minus only the noted exceptions. It's in the blogosphere where the right is gaining strength.
And I'd posit that with Obama's plunging approval ratings, you will see increasingly critical mainstream media coverage of him, because if he veers toward center and courts bipartisan support and consensus, they'll view that as a betrayal. If he continues the course and his numbers fall even more, they'll abandon him like rats on a sinking ship, because the only people less principled than politicians are the media who cover them.
I think the press should target, mercilessly, any political figure who lies or otherwise betrays the public trust, regardless of which end of the political spectrum in which they reside.
That certainly is the best we could hope from the media, but it has never been that way. Regardless of if we like it, the media we have today is all we likely will ever have. It is up to an informed citizenry to qualify the news. You do this by being multifaceted and seeking news from as wide a variety of sources as possible; and by refusing to accept anything as fact that is presented without citation.
And when there is no obvious wrongdoing to expose, then they should objectively and impartially report the facts of an issue, and let the readers/listeners/viewers decide.
Where is there profit in that model? What you ask is analogous to saying a tool manufacturer should spare no expense in making the highest quality tool. He does so, and all his customers go to Wal-Mart to buy Chinese. The news game is a for-profit venture, and capitalism dictates they pander to the largest possible pool of potential customers. That large pool is in the wings. Centrist publications almost never succeed.
But you and I both know that is no longer the case.
I would submit that it has never been the case.
Before, during and immediately following the election, the mainstream media was so in the bag for Obama that it was sickening.
Perspective, AD, perspective. It was sickening only to those who opposed Obama, and there were far fewer opposed than in favor. Thus capitalism rears an ugly head once again. FOX worked the other end of it for the very same reason.
If you want leftist vitriol barely grounded in fact, watch Olberman and MSNBC
Here I find room for disagreement. Olberman, while indeed pandering to his lefty audience, remains (to some degree) one of the intellectuals of that side. He has the ability to spot inconsistencies and hypocrisies in right wing vitriol, and he does a good job of analyzing the bunk. Where he fails is by attempting to qualify the failures of the progressives by pointing to the failures of the right.
with Obama's plunging approval ratings
I find it interesting that those of you on the right take such glee from this. Firstly, while certainly dropping, Obama’s ratings are not plunging. A few posts back I offered some graphs showing the trends of this administration as compared to those of all others back to Eisenhower. Every administration suffered a drop in popularity following the first few months in office. Obama is no worse off than any, and much better than some of those former presidents at this point in his term. The right is making a mountain out of a molehill.
All of that said, I do crave a gentler, more intellectual debate, but that is an unlikely thing. For over 50 years now, we’ve taken the political low road. The last hope this country had for a true highbrow intellectual in the oval office was lost when Ike beat Adlai in 1952. Barry Goldwater, an early Kristol disciple, never had a chance.
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