New York Times Co. v. Sullivan: A Landmark Case for Free Speech [No. 86]
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New York Times Co. v. Sullivan: A Landmark Case for Free Speech [No. 86]

The Framers, I think mentioned the freedom
of the press in the first amendment, because they recognized that freedom of mass communication
is a very important check, perhaps the most important check on government power. And that’s especially so in a democracy. In a democracy, the people govern, but the
people have to be aware of what is happening, and the only way that they can learn what’s
going on, they can hear the arguments about what’s going on, is if printing presses, and
now their technological heirs, are free of government censorship. Political advertising is, generally speaking,
fully protected by the first amendment, subject only to narrow exception for libel. That’s in fact what was involved in New York
Times v. Sullivan, a political ad. Sullivan was a police commissioner who claimed
that he was libeled in an ad that the New York Times published. Libel is defined as a false, factual assertion
about someone that damages the person’s reputation. The contested statement came in an advertisement,
which accused local police of various kinds of misbehavior related to the civil rights
movement. The police commissioner claimed that there
were errors in the statement that were libelous and therefore, he should be able to recover
damages. And he sued; the New York Times, got a massive
verdict in Alabama courts, and then that went up for review to the U.S. Supreme Court. The court concluded that the first amendment
does apply to libel lawsuits. So, political advertisements about public figures
are fully protected by the first amendment, subject only to the rule that knowing or reckless
falsehoods are not protected. Reputation is very important to people, and
the damage to the reputation could be extremely harmful to their lives and to their dignity. Some damaged reputation is inevitable in public
debate, especially about public figures and public officials, and some of that damage
may even be unjustified, but so long as people are refraining from intentionally lying, so
long as people just sometimes make inevitable, honest mistakes in public debate about public
officials and public figures, the Supreme Court held that speech has to be protected. So what the court said was, that the plaintiff
has to show by clear and convincing evidence, if the plaintiff is a public official, that
the defendant speaker actually knew the statement was false or was reckless. In practice, this knowledge or recklessness
standard has been very hard for plaintiffs to meet. And I think the Supreme Court deliberately
made it hard. New York Times v. Sullivan is important because
it’s important that people be able to freely discuss and criticize the actions of government
officials. If every time you criticize a government official,
you risk a lawsuit because of some innocent mistake, maybe even a reasonable, factual
mistake that you made, then, in that case, the newspaper publisher, or blogger, might
well be quite reluctant to make such criticisms, and maybe every time you’re threatened with
litigation you’ll immediately take them down for fear that you’ll be bankrupted. So the Supreme Court concluded that, because
of that, there needed to be considerable immunities given to those who discuss public officials,
even when they make mistakes in what they say about public officials, because otherwise
there’d be so much of a chilling effect on speech, including true speech, that the public
debate needed for democracy so that people will be able to decide whom to elect or reelect
would be stymied.


  • huddless50

    "What we have here is a failure to communicate." The issue in the current political culture is not innocent mistakes but outright fabrications, staging, scheming with political entities, and possible complicity across main stream media outlets to misinform the electorate. If not outright illegal it is ultimately disastrous for a representative republic.

  • Danish

    The framers didn't mention the freedom of press in the first amendment by design. There's no evidence to show that any thought process went into the order in which amendments where proposed. In fact, the first two original amendments proposed by Madison had failed then. It was thus by chance, that the third amendement came to be known as the 'first amendment'.

  • Objective

    The best ever speech on free speech:

    See also this excellent video where Hitchens talks about “First Amendment Absolutists” and also how in fact the main threat to free speech comes not from the state but from public opinion.

  • John W

    The fake news corporate elites are public officials. I hope that future leaders will have same cojones as Trump. The watchdogs of society aren't watching out for us. I'm not a fan of FOX either.

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