Long may we take for granted the freedom to malign the powerful

April 14, 2014 

  • At issue: March 9 commentary, "High court protected robust public debate; 1964 landmark ruling affords much leeway to criticize government," by Richard Labunski

Some of us celebrated the 50th anniversary of the 1964 United States Supreme Court decision New York Times v. Sullivan last month, but for most the anniversary went unnoticed.

Fifty years ago, the Supreme Court decided that it would place one of the most demanding legal burdens upon public officials when they file defamation lawsuits.

When suing for defamation, public officials would have to prove that a defendant's statements were made with "actual malice." This was a new term of art and burden that the Supreme Court created and applied to public officials based on our country's historical, social and political rejection of public officials' censorship of their detractors.

This high burden has allowed people to call both presidents George W. Bush and Barack Obama fascist Nazi dictators with no real fear of legal repercussion. While other western industrialized democracies have a much lower burden for defamation and thus make it easier for a public official to sue a critic, we take this freedom for granted — as well we should.

Some, like Justice Antonin Scalia, think the Supreme Court's decision was wrong and not supported by the text and original intent of the First Amendment.

However, recent news reports demonstrate that, at least from a policy perspective, the Supreme Court got it right. For example, last October, a Thai court sentenced a man to two years in jail for defaming the monarchy.

Moving west, and closer to our western industrialized democratic brethren, the Turkish prime minister recently closed off Twitter access in Turkey in reaction to the "lies" people were tweeting about his government. The prime minster was quoted telling a crowd "I cannot understand how sensible people still defend Facebook, YouTube and Twitter. They run all kinds of lies."

That may well be the case. In the United States, however, those "lies" are virtually insulated from defamation law. They are protected not because we find value in lies, but because if we too easily allow the punishment of "lies" we risk burying the "truth."

So, raise your glass to the 50th anniversary of New York Times v. Sullivan. May its 100th anniversary come and go with as little fanfare as its 50th, and may we take it for granted as much then as we do now.

Douglas B. McKechnie is an associate professor at the Appalachian School of Law in Grundy, Va.

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