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The First Amendment, said Judge Learned Hand, "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.”

New York Times Co. v. Sullivan was a unanimous decision, with two concurrences expressing a desire by Justices Black, Douglas, and Goldberg for an even stronger opinion. The Court makes it extremely hard for a public official to sue for libel (or slander). And the case is made vigorously that free debate about government officials and their conduct is essential, and constitutionally protected from government.

But notwithstanding that, there is a gaping hole in the analysis undergirding Sullivan as generally applicable policy. The case before the Court was weak, in that the plaintiff hadn’t even been explicitly named in the advertisement complained of, and Mr. Sullivan was a southern Democrat contending with the uproar of the Civil Rights movement. As such, neither “liberals” (I still pine for the meaning of the term which applied to those of us now smeared as “conservatives”) nor Republicans were sympathetic to his political posture.

The limitation of the analysis is its assumption that because the government does not install " any kind of authoritative selection,” it follows that “conclusions" will "be gathered out of a multitude of tongues.” That is the objective of the First Amendment, undoubtedly - but to identify the purpose of a rule is not the same as identifying the effect of the rule. Especially when that rule is operating many, many decades after it was promulgated. The intent of the First Amendment is good, and the effect of the First Amendment is good - within limits. The problem faced by modern American polity is that of voluntary unanimity of voices, not compelled by law but enabled by a cartel.

It turns out that Adam Smith’s warning that "People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices” applies with full force to journalists meeting, virtually but interminably, over the Associated Press “wire.” Before the advent of telegraphy and the wire services, printers of newspapers were ideological competitors. After decades of going along and getting along, that competitive system broke down, and journalists all call each other “objective.” The upshot is that Republicans get libeled at the drop of a hat (say rather, at the arrival of October in an election year) - and Democrats simply do not get libeled.

To say that 1A is not now achieving its purpose fully is not to call for its repeal but to say that it must not be turned against itself by using it to insulate journalists who are “conspir[ing] against the public” from the Sherman AntiTrust Act. If one conspirator lies and all the others swear to it, it is nonetheless and even more lamentably a lie.
Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U.S. 252. This is true even though the utterance contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U.S. 331, 342, 343, n. 5, 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice.
IMHO consideration should be given to softening that stricture to allow for punishment of reckless criticism of judges for lodging allegations against judges which relate to crimes which were never proven and for which the statute of limitations is long past. On the basis that charges which are inherently unrefutable as well as unprovable amount to nothing more than mischief.

Ping.

Case facts:

“Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate petitioner’s newspaper, the text of which appeared over the names of the four individual petitioners and many others. The advertisement included statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police department.”

The classic actual malice case.

What is it you want people clicking on your posting to derive from this?

The New York Times Co. v. Sullivan, 376 U.S. 254 SCOTUS decision made it nearly impossible for a Democrat or Republican politician to sue for slander/libel. If you read that 9-0 decision you will see a pean of praise for the idea that diversity of published viewpoints must be protected vigorously. As written, it is difficult to disagree with - and 3 justices wanted to go even further than Sullivan did.
But Sullivan is a poor precedent, because of what was not on the table. What was not on the table, because nobody was thinking about it back then, was the reality of modern journalism. Which is, and has been for a very long time, that journalism is not a cacophony of politically diverse perspectives, but quite the contrary.
As Adam Smith wrote in Wealth of Nations, "People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” People of the trade of journalism continually meet, virtually, over the wire services - and wire services began before the Civil War.
So much for the question of “opportunity” for journalists to collude. What about motive?
The man whom we believe is necessarily, in the things concerning which we believe him, our leader and director, and we look up to him with a certain degree of esteem and respect. But as from admiring other people we come to wish to be admired ourselves; so from being led and directed by other people we learn to wish to become ourselves leaders and directors . . .
The desire of being believed, the desire of persuading, of leading and directing other people, seems to be one of the strongest of all our natural desires. - Adam Smith, Theory of Moral Sentiments (1759)
In furtherance of their desire to influence people, journalists claim to be objective. But being objective, tho a laudable goal, is difficult to the point of impossibility, and is unnatural. Naturally, we all believe our own opinions are right - or they wouldn’t be our opinions. Yet any good-faith effort at being objective must start with serious scrutiny of the possibility that in fact where we stand is influenced by where we sit. And nobody likes to do that. Unexamined subjectivity is everyone’s default position.
But if journalists can conspire together, they have the opportunity to evade that difficulty. All they need do is form a mutual admiration society of journalists in good standing. Instead of trying, uncomfortably, to be objective, they then can be called objective as long as they reciprocate and call all other journalists objective. That, and join a mob of others to “stone” the career of anyone claims to be a journalist but does not go along and get along with the club by agreeing that all journalists are objective.
All that is hiding in plain sight - and was, truth be told, in 1964. But nobody much was on the case of “bias in the media” back then. Well, not in any serious, systematic way. For sure the journalists weren’t talking about it; they still aren’t. There has to be a case brought against “the media” for AntiTrust violations.
The First Amendment was right, but not enough. 1A is protection of the reading public from de jure restriction of what they get an opportunity to read. AntiTrust enforcement is necessary to protect the reading public from de facto restriction of what they get (a realistic chance) to read. And above all, the government (see, the FCC and FEC in particular) must not put its imprimatur on anyone’s opinions, whether expressed or implied.

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice"—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
Note, Dear Reader, that the “relating to his official conduct” issue is entirely absent from the attacks on Justice Kavanaugh’s reputation for sexual probity based on novel allegations of claims of Kavanaugh misconduct which putatively (and improbably) occurred long before Mr. Kavanaugh was a public official.
The idea that Kavanaugh's character assassins have nothing to fear from libel law if Kavanaugh were to sue seems meretricious.

In the only previous case that did present the question of constitutional limitations upon the power to award damages for libel of a public official, the Court was equally divided and the question was not decided. Schenectady Union Pub. Co. v. Sweeney, 316 U.S. 642. *269 In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button, 371 U.S. 415, 429. Like insurrection,[7] contempt,[8] advocacy of unlawful acts,[9] breach of the peace,[10] obscenity,[11] solicitation of legal business,[12] and the various other formulae for the repression of expression that have been challenged in this court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.
There is one ever-so-minor problem with that formulation: the text of the First Amendment says absolutely nothing about the right to sue for libel.
And the right to sue for libel fits neatly into

Amendment 9:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In fact, 1A does not refer to a blanket “freedom . . . of the press” but to "the freedom . . . of the press” - freedom of the press as it existed before the enactment of the Constitution or the First Amendment.
“Freedom,” that is, as limited by libel and pornography prohibitions.