Making sense of Judge Silberman’s diatribe against libel protections for the press

Judge Laurence Silberman. Painting by Peter Even Egeli.

We are probably a long way from having to worry about the libel protections the press has enjoyed for the past half-century. But Judge Laurence Silberman’s attack on the landmark decision New York Times v. Sullivan is the second by a prominent conservative in two years — the first coming from Supreme Court Justice Clarence Thomas.

Josh Gerstein reported in Politico on Friday that Silberman, a senior judge who sits on the U.S. Court of Appeals for the District of Columbia, wrote in a dissent that the “actual malice” standard set forth in the Times decision was a “policy-driven” result with no basis in the First Amendment.

“The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication,” Silberman wrote, praising Thomas’ dissent in a 2019 case in which urged his fellow justices to return libel law to state jurisdiction.

I wrote about Thomas’ dissent for GBH News, so I don’t want to repeat everything here. But the Supreme Court hit upon actual malice as a way to stop the racist white power structure in the South from weaponizing libel law — that is, filing bogus libel cases against the press based on inconsequential errors as a way of intimidating Northern media outlets during the civil-rights era.

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Thomas and Silberman both claim there is something perverse about actual malice, but in fact it is a logical evolution of how libel law developed over the centuries. Originally, the only element to libel was defamation. The truth of a published item was not only irrelevant, but it was thought that “the great the truth, the greater the libel,” since truthful defamatory statements can be more harmful to someone’s reputation.

That was the basis of “seditious libel,” which was nothing more than criticism of the government. That notion began to fade away following the 1735 trial of John Peter Zenger, a printer whose New York newspaper had defamed the royal governor, William Cosby. A jury acquitted Zenger after his lawyer, Andrew Hamilton, persuaded its members that truth should be a defense in a libel case. It was an early example of jury nullification, as Hamilton’s argument had no basis in the law of that day. Gradually, though, truth came to be seen as perhaps the ultimate defense in a libel case.

Before Times v. Sullivan, libel was based on a two-legged stool — defamation and falsity. The decision added a third leg — fault. From that point on, public officials filing a libel claim would have to prove that the defamatory falsehoods published about them had been made with actual malice — that is, with the knowledge that they were false, or with “reckless disregard for the truth,” which later came to be defined as strongly suspecting that the statements were false.

There’s no question that this presents a high barrier for public officials. But it also gave the press the protection it needed to engage in high-stakes investigative reporting. As the late Anthony Lewis pointed out in his book “Freedom for the Thought That We Hate,” reporting on the Pentagon Papers and Watergate would have been much more difficult without Times v. Sullivan.

In the years following Times v. Sullivan, the standard was refined so that public figures would also have to prove actual malice; even private figures would at least have to show that the press had acted negligently.

Silberman’s dissent, by the way, is really something, drenched with grievances against the so-called liberal media. He writes:

There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same rule

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon…. The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.

He goes on to call The New York Times and The Washington Post “virtually Democratic broadsheets,” and lumps in most of the rest of the press as well. (The Boston Globe get a shoutout.) He cites Fox News, The Wall Street Journal’s editorial page and the New York Post as exceptions, but adds “there are serious efforts to muzzle Fox News.”

I do not know what he’s talking about, unless he regards the mutterings of a small handful of Democratic members of Congress and media activists as “serious.” He also lambastes social media for cracking down on the right, disregarding the reality that those efforts have been aimed at eliminating falsehoods, not conservative opinions.

And as Washington Post media critic Erik Wemple pointed out, the conservative outlets cited as exceptions by Silberman surely are in need of actual-malice protections as much as others. (Fox and the New York Post more than most, I’d imagine.)

Silberman ends with this broadside:

It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness — if not eagerness — to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.

Fortunately, most conservative judges on the Supreme Court and elsewhere have taken at least as expansive a few of the First Amendment as their liberal colleagues. Thomas and Silberman would appear to be outliers. But freedom of the press is never guaranteed. This bears watching to see whether what is now a tiny flame somehow blows up into a conflagration.

Clarence Thomas wants to eviscerate the First Amendment

The ad that led to a landmark libel ruling.

Previously published at WGBHNews.org.

If U.S. Supreme Court Justice Clarence Thomas had his way, First Amendment protections for freedom of the press could be turned back not just to the pre-civil rights era but to the pre-Civil War era as well.

Let me explain. On Tuesday, Thomas wrote that the court ought to overturn its landmark 1964 New York Times v. Sullivan decision and allow the states free rein in deciding what standards should prevail in libel suits. In Sullivan, the court ruled that to prove libel public officials would have to show defamatory material about them was published with the knowledge that it was false or with reckless disregard as to whether it was true or false. That standard, known as “actual malice,” was later extended to public figures as well.

Now Thomas would reverse that. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas said. “We should reconsider our jurisprudence in this area.”

But the Sullivan decision was grounded in the failure of states to respect the right of the press to engage in “uninhibited, robust, and wide-open” debate, as the court put it, including “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The truth of the matter is that members of the white power structure in the South were seeking to weaponize libel laws in order to prevent the national press from reporting on its suppression of the civil rights movement. If the court hadn’t intervened, they would have gotten away with it.

The story of Times v. Sullivan is well told in Anthony Lewis’ book “Make No Law: The Sullivan Case and the First Amendment.” Supporters of the Rev. Martin Luther King Jr. took out a full-page ad in The New York Times in March 1960 titled “Heed Their Rising Voices.” The ad contained several minor errors of fact. For instance, it stated that King had been arrested seven times on trumped-up charges; in fact, he had only been arrested four times. It said that black students at Alabama State College in Montgomery, Alabama, had been padlocked into their dining room “in an attempt to starve them into submission” — a bit of hyperbole that was not literally true.

L.B. Sullivan, the Montgomery city commissioner in charge of the police, sued the Times for libel even though his name appeared nowhere in the ad. Sullivan won a three-day trial in Alabama state court that was rigged in his favor. For instance, the following year, on the 100th anniversary of the founding of the Confederacy, Sullivan staged a re-enactment of the swearing-in of Confederate president Jefferson Davis, with the same judge who had presided over his libel trial administering the oath of office.

It was against this deeply racist backdrop that the Supreme Court acted to end such abusive libel cases in 1964. The solution hit upon by Justice William Brennan, who wrote the decision, was to hold the press harmless for unintentional errors of fact. As Andrew Cohen wrote in The Atlantic upon the 50th anniversary of the case several years ago, “If there were no Sullivan, there likely would not have been a release of the Pentagon Papers or a rigorous investigation into Watergate or much of any withering criticism of government that appears today in any medium.” Or as Lewis himself put it in another of his books, “Freedom for the Thought That We Hate: A Biography of the First Amendment,”“New York Times v. Sullivan revolutionized the law of libel in the United States.”

My contention that Justice Thomas would bring us back to the pre-Civil War era is based on his apparent contempt for how the 14th Amendment was used to extend freedom of the press. The amendment, adopted in the immediate aftermath of the Civil War, forbids the states from trampling upon rights guaranteed by the U.S. Constitution. It took a while for the Supreme Court to rule that the First Amendment was among those rights. But in the case of Gitlow v. New York (1925), the court cited the 14th Amendment in extending its jurisdiction for the first time over state laws regulating speech.

No matter that Benjamin Gitlow, the hapless communist who’d been convicted of violating New York’s criminal syndicalism law for publishing a turgid left-wing manifesto, was sent to prison anyway. By recognizing that “freedom of speech and of the press” are protected “from impairment by the States,” the court transformed “Congress shall make no law … abridging the freedom of speech, or of the press” into a guarantee pertaining to state and local government as well.

Thus Justice Thomas demonstrates not only ahistorical disdain for the role that combatting racism played in the Sullivan decision but also for the long-settled principle that state and local governments may not take away protections guaranteed by the Constitution. In his opinion this week, Thomas pays lip service to the 14th Amendment. But it’s hard to square that with his enthusiasm for turning over basic press protections to the tender mercies of the states.

Fortunately Thomas seems likely to find himself alone on this. President Trump, as we know, has spoken of his desire to “open up our libel laws.” But Adam Liptak, who covers legal affairs for the Times, wrote on Tuesday that both of Trump’s appointees, Justices Neil Gorsuch and Brett Kavanaugh, have spoken approvingly of Times v. Sullivan. The decision appears to be safe — at least for now.

Still, Thomas’ out-of-the-blue opinion — expressed in a decision about a libel suit involving Bill Cosby, of all things — shows that the battle for free speech is never completely won. Rather, it has to be fought, over and over again.

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Re-reading Anthony Lewis’ ode to the First Amendment in the age of Trump

We are at a frightening moment. To refresh my understanding of what the First Amendment truly means, I recently re-read Anthony Lewis’ magnificent 2007 book “Freedom for the Thought That We Hate: A Biography of the First Amendment.” I’m glad I did. The late New York Times columnist, who was married to former Massachusetts Supreme Judicial Court chief justice Margaret Marshall, was a giant in his understanding of and reverence for the right to speak and write freely.

Read the rest at WGBHNews.org. And talk about this post on Facebook.

NEFAC honors James Risen, a free-press hero

James Risen
James Risen

James Risen is a free-press hero. Whether he will also prove to be a First Amendment hero depends on the U.S. Supreme Court.

On Friday, Risen, a Pulitzer Prize-winning reporter for The New York Times, was presented  with the 2014 Stephen Hamblett First Amendment Award by the New England First Amendment Coalition (NEFAC), which is affiliated with Northeastern University. (I wish I’d been able to attend, but I was teaching.) Risen faces prison for refusing to identify an anonymous CIA source who helped inform Risen’s reporting on a failed operation to interfere with Iran’s nuclear program — a story Risen told in his 2006 book, “State of War.”

Both the Bush and the Obama administrations have pushed for Risen to give up his source, but Risen has refused. “The choice is get out of the business — give up everything I believe in — or go to jail. They’ve backed me into a corner,” Risen was quoted as saying in this Boston Globe article by Eric Moskowitz. Also weighing in with a detailed account of the NEFAC event is Tom Mooney of The Providence Journal.

My Northeastern colleague Walter Robinson, a former Globe reporter and editor, said this of Risen:

There’s no one anywhere on the vast landscape of American journalism who merits this award more than you do. It is hard to imagine a more principled and patriotic defense of the First Amendment.

Unfortunately, Risen has little in the way of legal protection. The Supreme Court, in its 1972 Branzburg v. Hayes decision, ruled that the First Amendment does not protect journalists from having to reveal their confidential sources. In addition, there is no federal shield law. Thus journalists like Risen must hope that the attorney general — and, ultimately, the president — respect the role of a free press in a democratic society sufficiently not to take reporters to court. President Obama has failed that test in spectacular fashion.

Risen has asked the Supreme Court to take his case, giving the justices an opportunity to overturn or at least modify the Branzburg decision. But if the court declines to take the case, the president should order Attorney General Eric Holder to call off the dogs.

The Stephen Hamblett Award is named for the late chairman, chief executive officer and publisher of The Providence Journal. Previous recipients have been the late New York Times columnist Anthony Lewis, then-Boston Globe editor Marty Baron (now executive editor of The Washington Post) and Phil Balboni, founder of GlobalPost and, previously, New England Cable News.

More: On this week’s “Beat the Press,” my WGBH colleague Margery Eagan paid tribute to Risen in the “Rants & Raves” segment.

NEFAC seeks First Amendment champions

The following is a press release from the New England First Amendment Coalition, which is affiliated with the School of Journalism at Northeastern University.

banner2The New England First Amendment Coalition is seeking applications for a pair of annual awards to recognize both private citizens and professional journalists who aggressively advance the people’s knowledge of what government is doing — or failing to do — on their behalf.

The Antonia Orfield Citizenship Award and the Freedom of Information Award will be presented at NEFAC’s annual luncheon Feb. 7 in Boston. Candidates for the Citizenship Award should have shown tenacity or bravery in the face of difficulty in obtaining information of which the public has a right to know. Both awards will be presented to New Englanders for activity in the six-state region in calendar year 2013.

Nominations for the Citizenship Award are due Jan. 8 and can be made by submitting these forms by email to rosecavanagh.nefac@gmail.com or by fax to 401.751.7542.

Rosanna Cavanagh, NEFAC’s executive director, said that the FOI Award will be a recognition of journalism at its best, working to bring the sometimes shadowy workings of the government into the light of day. Work in broadcast, online or print media is eligible. It will be given to a New England journalist for work that protects or advances the public’s right to know under federal or state law. Preference will be given to applicants who overcome significant official resistance.

Applicants for the FOI Award should submit their story or series along with a cover letter explaining the process of getting the story, why it was a significant accomplishment and how it affected the public. Entries, which also are due by Jan. 8, may be submitted electronically. The entry forms are here.

James Risen
James Risen

NEFAC will honor James Risen, investigative reporter for The New York Times, with the fourth annual Stephen Hamblett First Amendment Award at the luncheon. Risen, a Pulitzer Prize-winning journalist who’s done ground-breaking work on domestic spying, now faces legal peril for refusing to disclose the source for his account of a failed CIA operation in Iran. The Hamblett Award is named for the late chairman and publisher of the Providence Journal. Previous recipients include Philip Balboni, co-founder of GlobalPost; Martin Baron, former editor of The Boston Globe and now executive editor of The Washington Post; and the late Anthony Lewis, longtime columnist for The New York Times.

The luncheon will be held in conjunction with the New England Newspaper & Press Association’s 2014 convention and trade show at the Boston Park Plaza Hotel.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, librarians, academics and private citizens. We work in partnership with the Initiative for Investigative Reporting at the Northeastern University School of Journalism.

‘Material support’ and the case of Tarek Mehanna

Tarek Mehanna
Tarek Mehanna

In today’s Boston Globe, civil-liberties lawyer and friend of Media Nation Harvey Silverglate explains in chilling detail the constitutional underpinnings — or, rather, the absence of such underpinnings — in the 2012 conviction of Al Qaeda sympathizer Tarek Mehanna.

Mehanna’s conviction on charges related almost entirely to his labors as a propagandist and translator led to the first of two Muzzle Awards for U.S. Attorney Carmen Ortiz. (The second was for her unconscionable crusade against the young Internet visionary Aaron Swartz, who committed suicide while facing prison for downloading academic articles without permission.)

Silverglate and his associate Juliana DeVries write in the Globe that the First Circuit Court of Appeals recently upheld Mehanna’s conviction and 17-year prison term on the basis of a 2010 U.S. Supreme Court decision, Holder v. Humanitarian Law Project. That decision, Silverglate and DeVries write, “allows federal prosecutors to bring charges for a wide range of expressive activities that supposedly constitute ‘material support’ to terrorists.”

Such a standard would appear to fly in the face of rulings such as the landmark Brandenburg v. Ohio decision of 1969, in which it was held that even vile, hateful calls to violence (the case involved the Ku Klux Klan) were constitutionally protected unless they were likely to result in an immediate conflagration. Silverglate and DeVries put it this way:

With the Humanitarian Law Project decision, the civic life of our free nation took a radical, though under-appreciated, turn for the worse. “Material support” is now a top contender for the American equivalent of the Soviet (now Russian) “hooliganism” statute, a notoriously vague criminal law that enabled the imprisonment of any opponent of dictator Josef Stalin’s regime…. A “material support” charge is a product not of our nation’s legitimate anti-terror concern, but of its overreaction and paranoia.

The Mehanna case was not entirely clear-cut from a legal point of view. He was also convicted of seeking (unsuccessfully) to join Al Qaeda fighters in Yemen and of lying to the FBI. But Ortiz went out of her way to prosecute Mehanna for his expressive activities, and his loathsome rhetoric was given an ample airing before the jury.

Mehanna is no mere Sudbury pharmacist, as his supporters would have you believe. But it is a fact that he is serving a prison term today because he expressed what he was thinking — an activity that is supposed to be protected by the First Amendment under nearly all circumstances.

Several years ago the late Anthony Lewis wrote a wonderful primer on the First Amendment called “Freedom for the Thought That We Hate.” Sadly, that freedom is becoming more and more a part of the past.

Booking photo of Mehanna in 2009 from the Sudbury Police as published at Boston.com.

Marty Baron warns press against fear and timidity

Marty Baron

Earlier today I attended an event honoring Boston Globe editor Marty Baron as the 2012 winner of the Stephen Hamblett First Amendment Award, presented by the New England First Amendment Coalition.

Baron is the second winner. The first, in 2011, was retired New York Times columnist Anthony Lewis, a longtime defender of the First Amendment.

Baron’s talk is well worth reading in full. Afterwards he sent me the text at my request, and I’m pleased to present it here. I was particularly struck by this, which comes near the end of his speech:

The greatest danger to a vigorous press today, however, comes from ourselves.

This is a moment in American history when the press has been made a fat target. The press is routinely belittled, badgered, harassed, disparaged, demonized, and subjected to acts of intimidation from all corners — through words and actions, including boycotts, threats of cancellations (or defunding, in the case of public broadcasting), and even surreptitious taping, later subjected to selective, deceitful editing. Our independence — simply posing legitimate questions — is seen as an obstacle to what our critics consider a righteous moral, ideological, political, or business agenda. In some instances, they have deployed scorched-earth tactics against us in hopes of dealing a crippling blow.

In this environment, too many news organizations are holding back, out of fear — fear that we will be saddled with an uncomfortable political label, fear that we will be accused of bias, fear that we will be portrayed as negative, fear that we will lose customers, fear that advertisers will run from us, fear that we will be assailed as anti-this or anti-that, fear that we will offend someone, anyone. Fear, in short, that our weakened financial condition will be made weaker because we did something strong and right, because we simply told the truth and told it straight.

The full text of Baron’s prepared remarks — minus an improvised shoutout he gave to classmates from Lehigh University who were on hand — follows.

***

This award is named after a great publisher, Stephen Hamblett, who helped build a great newspaper, the Providence Journal.

The first award was given, last year, to a magnificent journalist, Tony Lewis — whose talent and erudition made him a leading expert on the First Amendment and one of the country’s pre-eminent columnists, at the New York Times.

And today I get to stand before so many extraordinary leaders in the field of journalism — publishers, writers, editors, journalists of every type — whose dedication to our craft and our mission serves as inspiration to me daily.

So, I am honored that I was invited to be with you to accept this award. And I am deeply grateful for what it means. This is recognition not solely for me, but also for all of my colleagues at The Boston Globe, many of whom were kind enough to be here today. Continue reading “Marty Baron warns press against fear and timidity”

Margaret Marshall’s legacy

Margaret Marshall

The big local news of the day is that Margaret Marshall, chief justice of the state’s Supreme Judicial Court, is retiring in order to take care of her ailing husband, retired New York Times columnist Anthony Lewis.

But before Marshall joined the SJC, she was general counsel for Harvard University, using hardball tactics to make accusations of racial discrimination go away. I wrote about her Harvard days for the Boston Phoenix in 1999.

My take back then was that Marshall was not the liberal firebrand her supporters were hoping she’d be. Yet she will forever be known as the author of the Goodridge (pdf) decision, which paved the way for same-sex marriage in Massachusetts. It is a magnificent legacy, and Media Nation sends her best wishes upon her retirement.

And speaking of Lewis, I’ve read two of his books on the First Amendment, and they are both first-rate: “Make No Law: The Sullivan Case and the First Amendment” and “Freedom for the Thought We Hate: A Biography of the First Amendment.” Highly recommended.