Michael G. Roskin: Overturn "Sullivan"
Thursday, February 16, 2017 11:07 AM
Some worry that Donald Trump’s first Supreme Court appointment will follow Antonin Scalia on values issues such as abortion and same-sex marriage. Yes, he could, but what we really have to worry about is our bulwark against Trump’s authoritarian tendencies: Sullivan.
That’s shorthand for New York Times v. Sullivan (1964), a landmark Supreme Court ruling that shields the press from most libel lawsuits brought by public officials. Southern states were using multimillion-dollar civil suits to block critical news coverage of the integration struggle. SCOTUS decided 9-0 for the Times.
Sullivan requires a plaintiff, in this case Montgomery, Alabama, police commissioner L. B. Sullivan, prove either actual malice or reckless disregard of the truth if a news outlet publishes inaccurate, negative material about the public official, later broadened to “public figure.”
If the outlet reasonably believes the content is true, they are covered, giving the press freedom short of knowingly lying.
The media still face burdens. After the 2014 University of Virginia bogus fraternity-rape accusation, a dean sued Rolling Stone magazine — which verified nothing in its story — for $7.5 million for defaming her as indifferent to the accuser’s plight. She won last year, and now the wrongly accused fraternity is suing for $25 million also based on reckless disregard.
Trump hates the media and Sullivan and has sworn to alter or overturn it. He thinks he can do it by a new law that broadens the definition of malice or reckless disregard or changes evidentiary standards so as to make the media awfully cautious. A statute, by redefining key terms, can temper a high-court decision through the side door.
Imagine, however, how political coverage would fare today if there were no Sullivan. Accusations of Russian meddling in the U.S. election? Queries about Donald Trump’s conflicts of interest? Comments on his temperament and veracity? Silence them, under penalty of law. Our press could soon resemble Russia’s or Venezuela’s.
While Senate vetting of Trump’s SCOTUS nominee Neil Gorsuch surely includes abortion and immigrant rights, the really big litmus test should be Sullivan. With freedom to criticize preserved, democracy will survive Trump’s onslaughts.
Judge Gorsuch is the son of Anne Gorsuch, Reagan’s administrator of the Environmental Protection Agency, 1981-83. A staunch conservative, she replaced EPA staff with pro-industry people and distributed EPA powers to the states. She resigned amid charges of mishandling the EPA superfund and of trying to wreck the agency. Well, no bill of attainder here, just a reminder that Neil Gorsuch was raised conservative.
Standard legal-rulings methodologies place Gorsuch — like Scalia, an “originalist” — slightly to the right of Scalia. This should bother us little or not at all. Sitting untouchable on the Supreme Court, justices often follow their reason to rule in unforeseen ways. The office changes them. Besides, Scalia stoutly defended constitutional rights as the Founders intended them.
The social media beg for new court cases. With everyone posting anything — including “fake news” — with zero accountability, the likely fault line for legal action will grow where identifiable media pick up social-media gossip and post it as news. Hulk Hogan sued Gawker out of business for doing this.
A ripe area concerns “compromising material” from Russia released to the U.S. media. Would mainstream media dare touch it? As cover, they might let the electronic media initially spread it, then carry it attributed to social-media tweets, which are largely unverifiable.
The New York Times and Washington Post carry dozens of tweets, interspersed in their stories, as individuals’ opinions. Malicious intent will be hard to prove, especially by a man who tweets compulsively. Gossip and ferocious opinion thrive in the new social media, an explanation of why unconfirmed information misinforms the public. Unfortunately, accumulated tweets turn into the story.
Some of this is salutary. Until recently, news had trouble noticing societal changes outside standard news beats. Only official sources were valid. Print reporters began covering the 1960s civil-rights unrest by interviewing local sheriffs and scarcely bothering with the marchers. TV visuals of police dogs and fire hoses refuted official sources in dramatic fashion. Until the 1960s, black newspersons were vanishingly rare.
A current research topic is what social media actually do. Did they really trigger the 2011 Arab Spring? Mainstream media all but ignored Occupy Wall Street as sophomoric — until they noticed that it voiced widespread feelings of unfairness. Occupy brought “the 1%” into our vocabulary. Mainstream media gave little advance publicity to women’s marches in response to Trump’s inauguration, but social media turned out the better part of a million demonstrators in DC alone, perhaps three times the number at Trump’s swearing-in.
But we still need mainstream media. Print media can bring thoughtfulness with them, as the late Neil Postman observed in his 1985 “Amusing Ourselves to Death.” Postman argued that television was killing this off, but he never witnessed the rise of social media and how it can propagate fake news. In comparison, television is downright brainy.