Supreme Court Justice Clarence Thomas has recently opined that the media should no longer have the privilege of operating behind enhanced First Amendment protections as provided by the 1964 SCOTUS decision in New York Times v. Sullivan. Justice Thomas believes it is high time that journalists be held liable for libel, and Bruce Fein (at The American Conservative) concurs:
The Supreme Court’s landmark decision in New York Times v. Sullivan (1964) obtusely places a First Amendment premium on irresponsible reporting. As a result, it creates a sanctuary for libelous behavior if the targets are public officials or public figures, and raises the bar to “actual malice” on the part of the suspected libeler. This protects journalists even when falsehoods are published first and investigated only later. While the 1964 precedent was created during a time of chronic government lies, the media’s credibility has since been shot to pieces due to leaks, fake news, and a rush to publish.
Fein cites no less than Thomas Jefferson to make the case for keeping the press on a short leash:
As Justice Thomas elaborated in his opinion last week, there is nothing in the text or history of the First Amendment that justifies such a perverse journalistic incentive for fake news. Indeed, the actual malice rule impairs media credibility by protecting untruths resulting from journalistic negligence. Thomas Jefferson observed more than 150 years before the actual malice rule in a letter to Pennsylvania Governor Thomas McKean:
“[The press is] lying to such a degree of prostitution as to deprive it of all credit. And the fact is that…even the least informed of the people have learnt that nothing in a newspaper is to be believed. This is a dangerous state of things, and the press ought to be restored to its credibility if possible…I have therefore long thought that a few prosecutions of the most eminent offenders would have a wholesome effect in restoring the integrity of the presses.”
This quotation either proves Thomas’ and Fein’s case, or it demonstrates that politicians have always been at odds with a free press and that, mutatis mutandis, there is nothing new under the sun.
My counter-proposal to the Thomas/Fein argument is this: let’s hold politicians, office-seekers and office-holders legally responsible for their lies and/or demonstrable falsehoods. Why, after all, should a government official be allowed to lie with impunity to members of the Fourth Estate and, by extension, to the public? There are no more egregious peddlers of disinformation than professional politicians and their various enablers. We have heard the argument advanced that “It’s not a crime to lie to the NY Times or to CNN,” thus excusing a barrage of brazen prevarication; but if, as Fein and Thomas suggest, the NY Times and CNN can be taken to court for printing inaccurate stories, then so too should public figures who habitually economize with the truth or who constantly engage in self-aggrandizing bullshit (to use the officially-endorsed Presidential term).
To be clear, I’m not advocating we jail politicians for their reflexively dishonest statements; instead, I believe that the courts of proper jurisdiction should impose substantial fines for such statements (the fines, if necessary, can simply be deducted from the office-holder’s salary)—again, not only for blatant lies (e.g. “They want to take away your guns, your airplanes, and your cows”) but also for willfully ignorant statements (e.g. “I’m creating CO2 as I talk to you. It’s in your Coca-Cola. your Dr. Pepper and your Perrier water. It’s necessary for human life. It’s odorless, colorless, tasteless, doesn’t cause cancer, doesn’t cause asthma. There’s nobody that’s ever been admitted to a hospital because of CO2 poisoning”). The fines need to be punitive; these bastards can afford it, after all, and nothing less than reaching deep into their wallets is likely to get their attention.
No one needs to lie to the media; anyone can say “No comment” or “I’d rather not discuss that” or “None of your damned business”. If public figures persist in lying, they should be held accountable. 2 Think of it this way: if we could fine politicians for lying to us, the accumulated monies could almost certainly wipe out the national debt—heck, the falsehoods peddled by our current President alone could restore our fiscal standing!
It’s fine with me, then, if Bruce Fein wants to overthrow NY Times v. Sullivan. Will it be fine with Fein, however, if we fine, among others, our current Liar-in-Chief, President Pinocchio?
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https://www.theamericanconservative.com/articles/end-the-first-amendment-sanctuary-for-fake-news/
1 https://www.huffingtonpost.com/2009/05/19/joe-barton-gop-congressma_n_205549.html
The quote is a decade old, and Rep. Joe Barton is no longer in office (due, in part, to his having inadvertently posted a nude photo of himself onto a Twitter account), but I think Barton's statement remains fairly representative of the genre.
2 I should point out that Bruce Fein knows a bit about official dissembling: he served in the Reagan administration and was counsel to the Joint Congressional Committee on Covert Arms Sales to Iran, which wasn't quite as big a deal as, say, "Fast and Furious" or Benghazi, but which had its fifteen minutes of fame.
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