Posted on 09/16/2019 7:26:53 PM PDT by conservatism_IS_compassion
Antonin Scalia pointed out that the Bill of Rights was not enacted to change anyone’s rights. At all.
The Bill of Rights was created not to change anyone's rights but to set in concrete the already established rights of the people. That is explicitly the burden of the
- Ninth Amendment:
- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
And where the First Amendment refers to “the” freedom . . . of the press, it explicitly means that freedom of the press as it existed in 1787 cannot be changed. But existing freedom of the press did not include freedom to libel (or to print pornography).
So although the Warren Court, in its notorious New York Times Co. v. Sullivan decision, asserted that the First Amendment required that officials and judges not be allowed to sue for libel, that could not be true. To make the case they asserted, they would have had to refer back to precedents prior to the Constitution for their source. And that they did not do.
Other flaws in Sullivan include the facts that
- Major journalism is a cartel (the words, “Associated Press” alone should tell anyone that).
- As a cartel (united by the tight coordination of its members via the wire services), major journalism has a clearly identifiable perspective. The perspective of major journalism is that society’s failings (and not its virtues) are important - and that journalists are important because their mission is to identify highlight the failings of society and to promote government correctives.
- That cartel has redefined the words “liberal” and “objective” to mean “in perfect accord with the perspective of the journalism cartel.” The usage of those words is, per the cartel, strictly that journalists are never to be called “liberal,” and politicians are never called “objective.” Also, per the cartel, the definition and usage I have articulated must be denied - even if no more plausibly than the claim that a pitcher didn’t intend to hit a batter with a pitch.
- Consequently “liberal” officials never get libeled - and “conservative” ones routinely do. Denigrating the rights of public officials to sue for libel is, in practice, denigrating the rights of conservative officials to vindicate the reputations of themselves and their adherents by establishing facts in a court of law.
- This gives “liberals and objective journalists” the right not only to their own opinions, but to their own facts. And that is Political Correctness. The Warren Court never saw the open politically correct journalism which is now routine. And it is possible to believe that even Earl Warren would have balked at reifying that.
No one now disputes that Morrison v. Olson was wrongly decided. Yet absent Scalia’s classic dissent, Morrison would have been unanimous. In 1964 the Sullivan decision was unanimous. But then, the Warren Court didn’t have Antonin Scalia on the bench - and Sullivan is just as wrong as Morrison is.
Only SCOTUS can address this problem, and to do so it must have a case.
Some Republican official must sue for libel in the teeth of the fallacious Sullivan decision.
Ping.
Look. If you’re in public. You have to have a tough skin
Ask our great and wonderful president
Ask Hannity Ask Rush. Ask levin.
If there are charges. Then you go for the throat
Some Republican official must sue for libel in the teeth of the fallacious Sullivan decision.
******************************************
so, like kavanaugh is not who you have in mind. because he would not be able to be involved in deciding the case.
this would be so great though. he could be a plaintiff in a case brought before the court on which he serves.
seems BIZARRE, but WTH - consider the times in which we live.
Thank you for the ping, CIC...
I have never understood why elected officials cannot sue for libel. In today’s day and age more than ever, it appears that the Left has decided this is a free ride, and they can say whatever they wish, no matter how scurrilous or unfounded.
I am just sick of this crap. Absolutely sick to death of it.
Ask our great and wonderful president
Ask Hannity Ask Rush. Ask Levin.
Ask Steve Scalise - and, FTM, the rest of the Republican Congressional Baseball Team. We have “liberal” mobs in the street - starting on Inauguration Day 2017 - and people physically attacking congressmen and senators.If there are charges. Then you go for the throatPolitical Correctness is the moral foundation of it all. It is seriously dangerous to the Republic.
And the refusal of the courts to vindicate the truth lies at the root of it.
. . . as in the case of the Inspector General’s recommended charges against Comey??? Yeah, right . . .
This.Fundamentally, it is an attack on the very concept of fact. I would have said “truth” - but then, Biden’s formulation is that the left demands “truth, not facts.”
It is an attack on the very concept of truth, of course - it’s just that when Biden says “truth” he does not mean truth as distinct from falsehood. He means, “my truth” as opposed to “your truth.” IOW, he isn’t talking about truth at all.
It all goes back to
IMHO.
- sophist
- 1542, earlier sophister (c.1380), from L. sophista, sophistes, from Gk. sophistes, from sophizesthai "to become wise or learned," from sophos "wise, clever," of unknown origin. Gk. sophistes came to mean "one who gives intellectual instruction for pay," and, contrasted with "philosopher," it became a term of contempt. Ancient sophists were famous for their clever, specious arguments.
- philosopher
- O.E. philosophe, from L. philosophus, from Gk. philosophos "philosopher," lit. "lover of wisdom," from philos "loving" + sophos "wise, a sage."
"Pythagoras was the first who called himself philosophos, instead of sophos, 'wise man,' since this latter term was suggestive of immodesty." [Klein]
- philosophy
- A fondness or love for wisdom that leads to searches for it; hence, seeking a knowledge of the general principles of elements, powers, examples, and laws that are supported by facts and the existence of rational explanations about practical wisdom and knowledge.
What you say is true - but ironically, that might actually be the way to proceed. If Kavanaugh brought his (on the merits, slam-dunk) libel case and it came before SCOTUS - and with Kavanaugh recused the judgement went 4-4 - the miscreants would have no grounds for complaint. They would lose nothing but their court costs.But they would be on notice that any future such case would go against them. Not condign punishment, but fair warning.
Kavanaugh could even say in his recusal that if he were forced to sue the same people for libel again, he might not recuse. Or, better, he could perhaps prevail on a Democrat-appointed Justice to state that in such case they might recuse.
That excellent point you made “my truth as opposed to your truth” is a fundamental disconnect in our society.
There is little “common truth” now.
For many reasons, we have grown to disdain “their truth” on the Left as it is so obviously based in lies, falsehoods, slander, and political machination, as the accusations against Kavanaugh so clearly are.
They have come to disdain “our truth” not because it is false, but because it conflicts with their ideology and world view, which they view as an “ideal truth” (Utopia) and thus allows them to base their disagreement on what they view as moral terms rather than factual terms.
This may be the fundamental cleavage that will eventually destroy our country if it comes to that.
. . . and that is precisely the point: allowing the asymmetrical situation which I describe as the result of the Sullivan could let things get (even more) deadly serious.My article sketches out a rationale by which SCOTUS could legitimately defuse that.
IMHO that needs to happen - STAT.
Your article is well written and understandable (to me, at least) so thank you for posting it.
Of the many corrosive aspects of Leftism, this one has the potential to eat at the very core of what we are, not just as Americans, but as humans.
When two people have eyes that see the same thing, and the brain behind those eyes sees diametrically opposed things, we are going to have a problem.
We can have a situation where the music I like is not what you like and it is survivable. But to have different realities makes living in a republic such as ours impossible.
Scalia argued his view on “textualism” was the ultimate defense of the First Amendment. In March 2012, an Associated Press report said he told an audience at Wesleyan University that the Court’s early justices would be “astonished that the notion of the Constitution changes to mean whatever each successive generation would like it to mean. … In fact, it would be not much use to have a First Amendment, for example, if the freedom of speech included only what some future generation wanted it to include. That would guarantee nothing at all.”Scalia pointed out what History class should have told us all - that the Federalists were forced by the Antifederalists to promise that a bill of rights would be added to the Constitution by amendment. And that the reason no bill of rights exists in the unamended Constitution is the Federalists’ conviction that the Ninth and Tenth AmendmentsThat opinion didn’t prevent Scalia from harsh criticism of what is widely viewed as one of the essential court rulings protecting free speech and a free press — the 1964 decision in New York Times Co. v. Sullivan.
At the Newseum in the Aspen Institute 2011 Washington Ideas Forum, Scalia said the landmark ruling meant “you can libel public figures without liability so long as you are relying on some statement from a reliable source, whether it’s true or not.
“Now the old libel law used to be (that) you’re responsible, you say something false that harms somebody’s reputation, we don’t care if it was told to you by nine bishops, you are liable,” Scalia said. “New York Times v. Sullivan just cast that aside because the Court thought in modern society, it’d be a good idea if the press could say a lot of stuff about public figures without having to worry. And that may be correct, that may be right, but if it was right it should have been adopted by the people. It should have been debated in the New York Legislature and the New York Legislature could have said, ‘Yes, we’re going to change our libel law.’”
But in Times v. Sullivan, Scalia said the Supreme Court, under Justice Earl Warren, “… simply decided, ‘Yes, it used to be that … George Washington could sue somebody that libeled him, but we don’t think that’s a good idea anymore.’”
JUSTICE SCALIA: THE 45 WORDS — AND ORIGINAL MEANING — OF THE FIRST AMENDMENT
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.andThe powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.were implicit in the unamended Constitution. The only reason for the First thru Eighth Amendments was to mollify the Antifederalists by enumerating the rights which had historically been abused by tyrants.The right to sue for compensation for libel is not enumerated because Eighteenth Century Americans had no experience of tyranny by a journalism cartel. But the right to sue for compensation for libel is fully within the scope of the Ninth Amendment, and absolutely was considered so in every court, from the time of the passage of the Bill of Rights until the Sullivan decision was handed down in 1964.
In asserting that
". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment”Justice William Brennan and the entire Warren Court erred in Sullivan. The Sullivan decision comes from the position that “the press” is weak and beleaguered. The reality is that, because it functionally is a cartel, “the press” is the core of the Establishment. As such, “the press” has exploited Sullivan to prevent the truth from prevailing over lies.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. - Adam Smith, Wealth of Nations (1776)Since the wire services are continual virtual meetings of all major journalism (which have been in continuous operation since before the Civil War), you have to be “naive as a babe to believe” (Oscar Hammerstein) that journalism is not a cartel.
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