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Kavanaugh And Thomas Could End Media Protection From Libel
The Revolutionary Act ^ | 10/10/18

Posted on 10/10/2018 11:44:23 AM PDT by Liberty7732

On Feb. 29, 1960, Dr. Martin Luther King was arrested in Alabama on two counts of perjury for allegedly filing false state income tax returns. In response, and believing the case to be without merit, two groups, the Committee to Defend Martin Luther King and The Struggle For Freedom In The South, were formed with the aim of assisting Dr. King with the funding of his defense.

On March 29, 1960, these two groups published a 10-paragraph advertisement in The New York Times with the aim of collecting such funds. The advertisement contained a description of multiple grievances that had occurred against the members of the black community in Montgomery.

A number of the events depicted in the advertisement contained minor errors of fact while others were grossly inaccurate. For example, the advertisement contended that black students had demonstrated before the steps of the State Capitol while singing “My Country, Tis of Thee.” In actuality the students sang the National Anthem.

In a more egregious reference, the students were said to have been padlocked in the dining hall of the Alabama State College Campus by the Montgomery police when they had not.

Although the advertisement did not refer to City Public Safety Commissioner L. B. Sullivan by name or title, he contended that he was nevertheless libeled, as any false reference against the Montgomery police essentially referred to him, as its supervisor.

Sullivan sued The New York Times and others for $500,000, the maximum allowable for libel in state court, and won. The case was appealed to the federal court and eventually reached the Supreme Court of the United States in 1964.

What resulted was a landmark case in American jurisprudence and the principal reason for the state of disrepair of American political discourse.

In New York Times, v. Sullivan, the Court placed great weight on the inherent ability of truth to naturally prevail. Seeing that erroneous statements are “inevitable in free debate,” the Court refused to uphold the libel charge brought forth from the lower court. Instead, it held that the importance of supporting “uninhibited, robust, and wide-open” debate that may include “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” was more important than any protections it could give to public officials.

The Supreme Court consequently reversed the lower court’s ruling and imposed a new standard for successful libel actions against public officials. According to the Court, in order for a public official to prevail in a libel action it must show that the defendant acted “with knowledge that the statement was false or with reckless disregard of whether it was false or not,” a standard known as “actual malice,” or “New York Times malice.”

Although accepted as bedrock in American jurisprudence dealing with public figures and elected officials, this case has been the source of great discussion amongst legal scholars. Is this near-impossible standard too high? Was the Court’s fear of self-censorship justified, or does the press and political opponents need a little self-restraint? Is the OK Corral attitude of the Court the better approach, or does such a cavalier attitude muddy speech and make the situation worse for voters? To this day, consensus on these questions does not exist.

Fast forward 54 years to 2018 when a judge by the name of Brett Kavanaugh is nominated for a position in the Supreme Court of the United States. The man has an impeccable record as an adult, as a judge, and as a professional. He is one of the most revered and respected persons in his field. But at stake are the philosophical balance of the Court and the future of landmark abortion cases such as Roe v. Wade.

Predictably, Judge Kavanaugh’s confirmation hearing goes near flawlessly and his confirmation virtually sealed. But all of a sudden, after the conclusion of his confirmation hearings before the Senate Committee on the Judiciary, a completely unsubstantiated and uncorroborated accusation regarding his alleged conduct as a 17-year-old high school student (some 36 years prior) is brought against him. The accuser claims that Kavanaugh had engaged in a sexual assault against her at a party when she was 15 years old.

Within days, other stories were told. Stories alleging that as a college student at Yale University, Kavanaugh exposed himself to a female student while they were both intoxicated at a dorm party. Again, no corroboration existed. And then there was another story of how Kavanaugh had been involved in drugged-out gang raping activities in high school parties in Maryland, but not a single piece of evidence substantiated the charge, either.

After a vile and disgusting display of deceit and political theater that gripped the nation and forever tarnished his reputation, Judge Kavanaugh was confirmed in the closest judicial confirmation vote in American history.

But Kavanaugh was not alone in falling victim to the predatory tactics enabled by the elevated burden of proof inherent to the New York Times malice standard. All over the country, candidates have attacked their opponents with false and misleading accusations. And because the judicial system offers littler refuge or recourse in these cases, unless the victims of these attacks are able to find sufficient funding to successfully ward them off, their reputations are smeared and their races brought to an end.

And thus begins the endless barrage of negative campaign ads and misleading accusations. I should know; it happened to me; twice!

President Donald Trump has also fallen victim to these vicious attacks, except, in his case, it is the media that has been waging its propaganda war. Frustrated, the President has repeatedly called for an adjustment in the nation’s libel laws, most recently in comments relating to Justice Kavanaugh’s confirmation process. But in reality what needs to happen is an adjustment of “New York Times malice.”

Justice Kavanaugh is now a sitting member of the Supreme Court of the United States and flanked by another victim of kavanaughing, Justice Clarence Thomas. Having both been survivors of horrible and ruthless political denigration tactics, it stands to reason that these two justices would be much more sympathetic to protections against false and malicious speech against public officials than prior justices.

Suddenly, there’s a new question for legal scholars and political observers alike: with two victims of egregiously false political speech sitting on the bench, a frustrated public, and a disgruntled President, will the Court be willing to take an ax to “New York Times malice” and restore a certain level of self-imposed responsibility upon the deliverers of political speech?

I’m predicting we will soon find out.


TOPICS: News/Current Events
KEYWORDS: justicekavanaugh; justicethomas; libel; media; msm; scotus
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1 posted on 10/10/2018 11:44:23 AM PDT by Liberty7732
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To: Liberty7732

Winning!


2 posted on 10/10/2018 11:46:08 AM PDT by E Pluribus Bellum
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To: Liberty7732

I don’t think Thomas is going to be on the court much longer.
He may have been waiting for another conservative to join the Supreme Court. I’ve been hearing that Judge Thomas is past ready to retire.

Now if someone could just convince RBG to retire and write that Great American Novel, we’ll be all set for a generation.


3 posted on 10/10/2018 11:49:26 AM PDT by lee martell (AT)
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To: Liberty7732

I hope so. I don’t like that the press can write anything, whatever lies they want, and face no consequences. Wronged parties are left with no recourse, or rather face a hurdle so high to jump that they don’t even bother trying. It’s wrong.


4 posted on 10/10/2018 11:51:26 AM PDT by pepsi_junkie (Often wrong, but never in doubt!)
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To: pepsi_junkie

Perhaps, but Kavanaugh’s reverence for precedent leads me to believe it probably won’t happen. We’ll see.


5 posted on 10/10/2018 11:52:56 AM PDT by traderrob6
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To: Liberty7732

bump


6 posted on 10/10/2018 11:54:57 AM PDT by exnavy (America: love it or leave it.)
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To: Liberty7732

bump


7 posted on 10/10/2018 11:54:58 AM PDT by exnavy (America: love it or leave it.)
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To: Liberty7732

If this means the media will be liable for slander, man am I on board.

What they have gotten away with SHOULD BE A CRIME.


8 posted on 10/10/2018 11:55:07 AM PDT by DoughtyOne (01/26/18 DJIA 30 stocks $26,616.71 48.794% > open 11/07/16 $215.71 from 50% increase in 1.2183 yrs)
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To: Liberty7732

It’s time to limit uncorroborated media attacks on anyone. I am afraid the law will be as thick as Obamacare and unwieldy or unusable if not worded properly.

It must contain provisions for vile accusations or vile mocking (yes, I revere comedy but I’ve come to realize there should be a limit to barrages of hatred against anyone, day in day out), that they need backing up by corroboration or must pass some kind of bullying test.

But it must allow for normal eyewitness or experience speech, so that anyone can say to a friend or a reporter “I saw Mr X do Y at the Z.” We must retain freedom of speech.


9 posted on 10/10/2018 11:59:34 AM PDT by Yaelle
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To: DoughtyOne

Rose colored glasses.
The head of scotus is corrupted or just extorted.


10 posted on 10/10/2018 12:00:56 PM PDT by bicyclerepair (MAGA - DRAIN THE SWAMP ! - I love my online family of FReepers.)
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To: Liberty7732

I hope that, throughout Kavanaugh’s long tenure on the SC, he NEVER forgets what the democrats did to him.


11 posted on 10/10/2018 12:02:00 PM PDT by Tenacious 1
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To: lee martell

Notorious works out like Schwarzenegger apparently. Who knew??

https://www.businessinsider.com/ruth-bader-ginsburgs-workout-routine-2018-6#you-do-multiple-interval-sets-and-repetitions-for-each-exercise-6


12 posted on 10/10/2018 12:02:23 PM PDT by Yaelle
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To: Liberty7732

While reporters are protected from revealing their sources, publishers that knowingly participated in the conspiracy with congressional staffers are not. The conspiracy is criminal and does not carry first amendment protection.


13 posted on 10/10/2018 12:03:35 PM PDT by bert ((KE. N.P. N.C. +12) Muller..... conspiracy to over throw the government)
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To: Liberty7732

Make it Ex Post Facto for Harry Reid too.


14 posted on 10/10/2018 12:20:30 PM PDT by Dr.Deth
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To: bicyclerepair

Do you believe it’s a corrupt thought to want the press to have to stick to the truth, and not slander innocent people, be they public figures or citizens?


15 posted on 10/10/2018 12:23:04 PM PDT by DoughtyOne (01/26/18 DJIA 30 stocks $26,616.71 48.794% > open 11/07/16 $215.71 from 50% increase in 1.2183 yrs)
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To: Liberty7732

That would make Sarah Palin quite happy.


16 posted on 10/10/2018 1:18:40 PM PDT by hardspunned
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To: Liberty7732
In New York Times, v. Sullivan, the Court placed great weight on the inherent ability of truth to naturally prevail. Seeing that erroneous statements are “inevitable in free debate,” the Court refused to uphold the libel charge brought forth from the lower court. Instead, it held that the importance of supporting “uninhibited, robust, and wide-open” debate that may include “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” was more important than any protections it could give to public officials.

The Supreme Court consequently reversed the lower court’s ruling and imposed a new standard for successful libel actions against public officials. According to the Court, in order for a public official to prevail in a libel action it must show that the defendant acted “with knowledge that the statement was false or with reckless disregard of whether it was false or not,” a standard known as “actual malice,” or “New York Times malice.”

Although accepted as bedrock in American jurisprudence dealing with public figures and elected officials, this case has been the source of great discussion amongst legal scholars. Is this near-impossible standard too high? Was the Court’s fear of self-censorship justified, or does the press and political opponents need a little self-restraint? Is the OK Corral attitude of the Court the better approach, or does such a cavalier attitude muddy speech and make the situation worse for voters? To this day, consensus on these questions does not exist.

The First Amendment did not create freedom of the press, it merely fixed in place the freedom that the press already enjoyed. That is - as Scalia noted - the press was subject to laws against libel before the enactment of the First Amendment, and it was still subject to those same laws afterward. So the press can be regulated - but only with a light hand and with the soundest of justifications.

For example, there is no reason why the public should accept a single monopoly press; journalists have no right to expect that the Sherman AntiTrust Act does not apply in their business. And the unifying principle of “the MSM” is the Associated Press. Essentially every major journalism outlet is a member. The very word “associated” in its name should make the AP suspect, and Adam Smith’s analysis of monopoly

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)
applies very directly, since the AP “wire” is a virtual meeting of all its members which has been in continuous operation since before the Civil War. You have to be "naive as a babe to believe” that in over a century and a half journalists have never found common cause to the detriment of the public.

Claiming objectivity for journalism is inappropriate. I put it to you that everyone knows that “If it bleeds, it leads” is sound advice for commercial viability in journalism. Certainly every journalist knows it. Journalism is negative - and any claim that "negativity is objectivity” should be dismissed out of hand as sheer cynicism. Another argument is that no one can know that they are being objective. You can try to be objective. You can even say that you are trying to be objective - if indeed you are. But to claim that you actually are objective is to confess that you actually are not even trying to be objective. Because the effort to try must start from the assumption that might not be objective. Certainly it is arrogant to claim to possess a virtue, and claiming objectivity is no different from claiming wisdom or any classical virtue.

Journalism is negative towards society, but not towards government. In fact, anyone who is negative towards society must think “there oughta be a law” whenever they seen a failing of society. Thus, journalism inherently tends to cynicism towards society and naiveté towards government. In Common Sense, Thomas Paine asserted that society and government are often conflated but are in fact near opposites:

SOME writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins.
Society is produced by our wants, and government by our wickedness;

the former promotes our happiness POSITIVELY by uniting our affections, the latter NEGATIVELY by restraining our vices.

The one encourages intercourse, the other creates distinctions.

The first is a patron, the last a punisher.

Society in every state is a blessing, but Government, even in its best state, is but a necessary evil . . . - Common Sense (1776)
I put it to you that "cynicism towards society and naiveté towards government” describes socialism to a tee. Whereas American conservatism holds, with the founders of the Constitution, that

The conclusion of the matter is that journalists tend to “conspire against the public” by promoting socialism. And that the wire services generally, and the AP in particular, are the nexus of their conspiracy. And, I note, the raison d'être of the wire services was the conservation of expensive telegraphy bandwidth in the wide dissemination of the news. And in the 21st Century, telegraphy bandwidth is dirt cheap.

There is such a thing as the AP Stylebook, which establishes standards for journalism. Some, perhaps most, of it is unexceptionable - for example, the “pyramid organization” of articles which demands that the most salient points of the article be articulated in the opening part of the article. But if the Stylebook proscriptions prevent the articulation of a particular political viewpoint - if for example it proscribes the term “illegal alien” to describe foreign citizens in the US without proper authorization - that is “a conspiracy against the public.” I doubt that the Stylebook explicitly proscribes the identification of the political party of a Democrat politician caught with his hands in the till, and requires it when a Republican is so charged - but “the MSM is notorious for exactly that sort of thing.

It is famously said that a law against sleeping under bridges is not neutral because it forbids both rich and poor from doing it. Just so, a ruling which makes it extremely difficult for Democrats - who essentially are never libeled - to sue, while doing “the same thing” to Republicans, who get libeled continually, is utterly unfair. That is why the NY Times v. Sullivan ruling must be overturned.

The AP should be prosecuted (or sued civilly) under Sherman - and ruined. We don’t need it, and it is anticompetitive in the one industry - discussion of current events and politics - in which competition is most significant and necessary.


17 posted on 10/10/2018 2:16:08 PM PDT by conservatism_IS_compassion (Journalism promotes itself - and promotes big government - by speaking ill of society.)
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To: boxlunch; ransomnote; IChing; Bratch; laplata; chiller; ebiskit; TenthAmendmentChampion; Obadiah; ..

Ping.


18 posted on 10/10/2018 2:18:06 PM PDT by conservatism_IS_compassion (Journalism promotes itself - and promotes big government - by speaking ill of society.)
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To: Liberty7732

Living in a country where lawyers shop for libel cases, and are one of the largest users of libel laws, not a fan of seeing the standard going lower.


19 posted on 10/10/2018 2:44:04 PM PDT by Sam Gamgee
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To: Yaelle

Two unrelated cancers, clogged cardiac arteries, and chemotherapy after effects add to eight decades accumulated senescence. Wonder what’s in that gold encrusted health plan?


20 posted on 10/10/2018 4:17:15 PM PDT by Ozark Tom
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