Part of me wants the system to indeed make "The bar for proving defamation . . . high” - because someone has to take a case to SCOTUS calling for the revision, if not the outright overruling, of the 1964 New York Times Co. v. Sullivan decision.That was a unanimous decision - with enthusiastic concurrences - by the infamous Warren Court. The ruling was, essentially, that the First Amendment changed - attenuated - libel law. Specifically for government officials, but extended in practice to people who get turned into “public figures” by the media.
We all love us some First Amendment, or we wouldn’t be posting here (with the support of the owner of FR, who is the one under whose 1A rights FR is published). But the historical truth is, of course, that the Federalists who composed the unamended Constitution had serious reasons why they didn’t want to include a bill of rights in it. They agreed to include one by amendment only because they couldn’t get the Constitution ratified without making that promise.
Since the rights Americans took for granted were products of the organically growing Common Law, any effort to enumerate them all would have been both novel and a fool’s errand. Common Law was then, is now, and into the indefinite future can be expected to - be evolving. A complete enumeration of rights was therefore simply not in the cards. The further problem with a bill of rights was the likelihood that people would (correctly) assert that “the right you are claiming is not enumerated in the Bill of Rights and wrongly prevail over you despite the fact that the right you were seeking court vindication of was a right which had been taken for granted at the time the Bill of Rights was ratified. The danger, that is, that a bill of rights might function as a ceiling over our rights, not (as the AntiFederalists wanted) a floor under them.
The Federalists undertook to deflect that danger by passing the Ninth and Tenth Amendments:
Amendment 9 - Ratified 12/15/1791.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Amendment 10 - Ratified 12/15/1791.The 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.Before the ratification of 1A, everyone understood that any government official had the right to sue for libel or slander. And they still understood that after the Tenth Amendment was ratified. And no other relevant amendments had changed that before the 1964 Warren Court ruling to the contrary.Sullivan makes sense only under the assumption that journalism as a whole was a politically unbiased institution. But in fact Sullivan “set loose the dogs of war” against any politician who did not go along and get along with “the media” (read, the wire services and their member press outlets). And even, as you suggest, against an innocent 17-yo boy.
The ideal solution would be for SCOTUS to reinstate the vulnerability to libel action specifically against the wire services and their members, Facebook and Twitter, and against the FCC and its licensees. That would suppress the industrial scale libel, but leave small scale opinions as free-fire zones. It is also necessary to enjoin government schools not to teach the absurd proposition that journalism is objective.
Heya CIC, haven’t crossed paths with you for a while, good to hear from you and hope all is well!
Good post-in summary (if I understand correctly) the Sullivan ruling gave the media protection it not only did not deserve, but exploited to end up where they are now?
If that summary is correct, I would be all for overturning Sullivan.
In my opinion, one of the most amazing things about the US Constitution is...its brevity. The other is the focus not on what you CAN as an individual do, but what the government CANNOT do to you as a citizen.
The effort to positively enumerate everything is, exactly as you say, a fool’s errand. It could never be kept up to date, it would always be in the process of being changed this way and that way (to suit whoever has their hands on the levers of power) and it would become so unwieldy as to be useless.
When the EU Constitution was made available online, I downloaded it and was horrified-it was the stupidest, most bloated, woke governing document I had ever seen, at nearly 60,000 words versus 4,600 for the US Constitution. The difference was staggering.
Of course, it all boils down to whether you are someone who believes that your rights are given to you by a governing body of humans such as the EU or whether you believe your rights come from God.
It makes a big difference in how you explain those rights on paper!