About the First Amendment, Libel, and Slander
The First Amendment clearly protects freedom of speech. But in doing so, it runs headlong into the protection laws provide against libel and slander, intended to prevent defaming an individual or group. In 1964, the two collided in the case of Sullivan vs. the New York Times.
Four
years earlier, the Times had published a full page advertisement opposing Alabama’s supposed racially-motivated actions in regard to civil rights. The advertisement contained many inaccuracies and exaggerations resulting in Sullivan, a Montgomery, Alabama, commissioner, suing the
newspaper for defamation. The Supreme
Court ultimately came down on the side of the Times, placing the
importance maintaining free speech and a free press as essential to democracy ahead of what
amounted to defaming Alabama, despite these flaws in the advertisement. And that is the way Constitution law still
views it.
Right now, that approach is coming into the spotlight and the SCOTUS soon may be deciding what to do with its 1964 Sullivan decision. Don’t touch it? Modify it? Reverse it?
The recent libel suit in which Fox News settled for over three quarters of a billion dollars when sued by Dominion, a manufacturer of voting machines, never reached the Supreme Court. And with good reason.
In all
likelihood, the Court would have seen Fox’s position as different from that of
the Times in 1964 because Fox was aware of the falsity of what it
broadcast. The Times was not
aware of the flaws in the 1960 advertisement when it printed it. But Fox had proceeded despite their knowledge
of the falsehoods that they broadcast, well-documented in the Dominion litigation
by copies of emails. So they settled. The Court might have even come down with a still larger settlement!
In the Sullivan case, the late Justice Brennan had written that the First Amendment prohibited holding a speaker liable for a false statement unless it were made with ‘actual malice,’ definable as knowledge of, or ‘reckless disregard of’ the statement’s falsity.’ And that would have been enough, if the Dominion case had reached the SCOTUS, for Fox to have lost any First Amendment protection. (That may not be true, however, in other cases in which Fox is the defendant, such as the one being brought by Symantic, another voting machine maker.)
I believe this modified approach to free speech about which Brennan wrote will be strengthened by the SCOTUS, weakening First Amendment protection for journalists and others, in cases involving libel or slander. It might harm those on any side of an argument, but most importantly, it points up the necessity for those whose arguments are dependent on the First Amendment to show that they fully and truly believe in their position, however thoroughly it might be proven beyond any doubt to be false.
If one
believed absolutely and firmly in the flatness of the earth despite all evidence to the
contrary, it might be impossible to show any ‘actual malice’ or ‘reckless
disregard of the truth’ on their part it they, for example, wrote a article warning cruise line
passengers that they risked falling off of the edge of the world and were sued
by cruise lines. And the First Amendment
would survive as their protection.
JL
What is Your Idea of Government’s Purpose
At one extreme is the absence of government in a totally free, everyone for themselves, environment. That won’t work because the physically strong will try to overpower the weak, the wealthy will try dominate the poor, and the smart will take advantage of the ignorant. The absence of any ‘structure’ will lead to unending violence among people until some sort of government is temporarily forced upon them. Anarchy is really not a substitute for government, no more than fasting is a remedy for hunger.
At the other extreme is a government which controls everything totally. Totalitarianism. Everything people do is tightly regulated or turned into a governmental function, empowered by unchallenged force. Sooner or later, totalitarian governments fail because they usually are dependent on assumed loyalty to one individual.
 |
| Mussolini was captured and hung while Hitler committed suicide. Their totalitarian governments could not have existed without them. |
Fortunately, there are a lot of choices in between these two polar opposites. A menu of them might include:
(1) Government
with authority limited to no more than filling the need for national defense
and preserving domestic order,
(2) Government
with authority limited to filling other needs only where the private sector is
unable to adequately fill them.
(3) Government
having a means of taxation to finance itself that does not impede economic
growth,
(4) Government
that regulates activities in the private sector only when they dangerously affect the
health, safety, and welfare of the population,
(5) Government
that provides a minimal level of social and economic benefits to those who cannot
secure them for themselves,
(6) Government
that actively regulates the economic health and welfare of all Americans,
regardless of income,
(7)
Government that not only regulates the economic health and welfare of all
Americans, but also establishes and manages its own programs to serve the
interests of the entire population and not just parts of it,
(8) Government
that is committed to providing adequate resources through progressively higher
taxation of wealthier individuals and businesses to provide for such regulation and programs.
There’s
the menu. You probably can come up with a dozen more choices. But what do you order when the
waiter comes around on Election Day?
JL
Literary Criticism Department
One of
my favorite authors is Lee Child. It is
difficult to put one of his Jack Reacher novels down, once started. Even the Jack Reacher movie, although miscast
with Tom Cruise in the title role, was enjoyable. But lately, authorship of his
novels has been shared with his younger brother, Andrew Child, also occasionally
writing under the name of Andrew Grant.
These efforts are not even a shadow of the originals.
Writing talent does not necessarily run in the family. Andrew should write his own books and not sponge off his brother’s reputation. His most recent Reacher novel, ‘No Plan B,’ makes one point and that is that as a novelist, Andrew should have a ‘plan B.’ And it should not include Jack Reacher.
JL
* * *
Housekeeping on the Blog
Email Alerts: If you are NOT receiving emails from me alerting you each time
there is a new posting on Jackspotpourri, just send me your email address and
we’ll see that you do. And if you are forwarding a posting to someone, you might
suggest that they do the same, so they will be similarly alerted. (You can pass those email addresses to me by email
at jacklippman18@gmail.com . )
Forwarding
Postings: Please forward this posting to anyone you
think might benefit from reading it.
If you
want to send someone the blog, exactly as you
are now seeing it, with all of its bells and whistles, you
can just tell folks to check it out by visiting https://jackspotpourri.blogspot.com or by providing a link to that address in your email to
them. I
think this is the best method of forwarding Jackspotpourri.
There’s another, perhaps easier, method of
forwarding it though! Google
Blogspot, the platform on which Jackspotpourri is prepared, makes that
possible. If you click on the tiny envelope with the arrow at the bottom
of every posting, you will have the opportunity to list up to ten email
addresses to which the blog will be forwarded, along with a comment from
you. Each will receive a link to the textual
portion only of the blog that you now are reading, but without the
illustrations, colors, variations in typography, or the ‘sidebar’ features such
as access to the blog’s archives.
Either
way will work, sending them the link to https://jackspotpourri.blogspot.com, or
clicking on the envelope at the bottom of this posting, but I
recommend sending them the link.
Again,
I urge you to forward this posting to anyone you think might benefit from
reading it.
Have a
nice day!
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