Serving the High Plains
Serving the High Plains
In 1964, the U.S. Supreme Court delivered a gift to the idea of freedom of expression with its ruling in the New York Times v. Sullivan case.
It is important to point out that the case could just have easily involved the Washington Post, Wall Street Journal, Breitbart, the National Review or the Atlantic — any outlet that either reports news objectively or openly advances an opinion.
Times v. Sullivan established that proof of libel against a public figure must demonstrate actual malice in the form of falsity and “reckless disregard” for truth.
Basically, especially when expressing opinion, Times v. Sullivan makes it difficult to prove libel against a public figure.
That’s the way it should be if we want to preserve freedom of expression. Without freedom of expression, in my view as a journalist, we have no other liberties, either.
The first thing dictators target to establish complete control is news media.
In light of Times v. Sullivan, Donald Trump’s current lawsuit, coincidentally against the New York Times, is pointless and to any attorney in the nation, with the possible exception of Attorney General William Barr, nearly frivolous.
Trump’s suit against the Times claims that knowingly false assertions were made in an opinion article by former Times Publisher Max Frankl about the possibility that the Trump campaign conspired with Russians to enlist Russian aid in electing Trump to the presidency.
“There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal:” Frankl wrote and the Times published. “The quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions.”
In light of the Mueller Report, Frankl may have been speculative about the contents of that meeting, which he based on some unchallenged facts that were revealed about the session.
Those unchallenged facts, however, are sufficient to disprove “reckless disregard.”
Lately, conservative Supreme Court Justice Clarence Thomas has questioned whether the standard of Times v. Sullivan is too lax.
“If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we,” Thomas said, calling the Times v. Sullivan standard “largely a judge-made rule of law.”
Maybe Trump is thinking that with a conservative court, one of his lawsuits will result in an overturning of the Times v. Sullivan ruling.
What Trump and his followers miss is how seriously a change in the malice standard could backfire.
Prime example: Joe and Hunter Biden could successfully sue Fox News, Sean Hannity and Rush Limbaugh for maliciously and falsely accusing them of misdeeds involving the Ukraine.
To keep alive the exchange and clash of ideas that make democracy vibrant, we need the Times v. Sullivan standard to remain intact.
The courts should not allow the short-term demands of a petulant chief executive to wreck the future verbal combat our democracy will continue to require to stay alive.
Steve Hansen writes for Clovis Media Inc. Contact him at: