Righting the wrongs of Sullivan to restore the right to reputation
What if I told you Americans could enjoy free speech, a free press, and the right to reputation? Is that something you might be interested in?
Everyone reading this knows that their right to swing their fist ends where the other guy’s nose begins. Far fewer people know that the same principle once applied to speech.
For most of American history, my right to say—and, more importantly, publish—whatever I want ended where the other guy’s reputation began.
Benjamin Franklin recognized that if the law and society do not protect reputation, then there will be a lot more fists taking aim at noses.
“In the rude state of society prior to the existence of laws, if one man gave another ill language, the affronted person would return it by a box on the ear, and, if repeated, by a good drubbing; and this without offending against any law. But now the right of making such returns is denied, and they are punished as breaches of the peace; while the right of abusing seems to remain in full force, the laws made against it being rendered ineffectual by the liberty of the press.”
Rather than abandoning reputation as a right, or leaving it up to each person to defend their reputation with their fists or with pistols at dawn, Franklin “humbly recommend[s]” that lawmakers recognize
“both liberties, that of the press, and that of the cudgel, and by an explicit law mark their extent and limits; and, at the same time that they secure the person of a citizen from assaults, they would likewise provide for the security of his reputation.”
Defamatory statements didn’t conflict with the First Amendment, nor occasion exceptions or carve-outs to our speech and press rights. Because citizens were understood to have a right to their reputation on par with their right to free speech, statements that injured another person’s reputation were separate from the speech that is protected by the First Amendment.
To break it down into even more fundamental terms, you only have a right to do that which does not harm others. Defamation is a harm inflicted by speech. Therefore, you do not have a right to that speech.
The way Supreme Court justices, state court judges, and legal commentators wrote about such matters—without outcry or complaint—reveals what a no-brainer this was for nearly 200 years.
And then New York Times v. Sullivan rolled around.
I’m in The American Spectator today, writing about how Supreme Court Justices Clarence Thomas and Neil Gorsuch might convince two of their colleagues to join them on an upcoming certiorari petition to revisit New York Times v. Sullivan. Such a review would hopefully overturn the “actual malice” standard and the “public official” (now “public figure”) exemption. The article builds on Carson Holloway’s new book, “No Liberty to Libel: The Constitutional Case against New York Times v. Sullivan.”
An excerpt from the article:
With reputation and interpersonal charity receding as values in American culture, more licentious strains of libertarianism took hold, including the idea of free speech absolutism. That set the immediate context of New York Times v. Sullivan.
Holloway thinks that Justice William Brennan, who wrote the majority opinion, was a “political liberal of that generation. He probably sincerely thought that the First Amendment requires a lot more protection for individual freedom of speech than what people thought in the past.” Which is to say, Brennan might have been a thoughtful and astute legislator. Unfortunately, he performed that role while wearing a black robe.
Justice Thomas wants to revisit New York Times v. Sullivan for precisely this reason: it’s among the most flagrant examples of legislating from the bench. Holloway’s book provides the history to support that claim...
Justice Gorsuch is more concerned that the actual malice standard and the notion of “public figures” are wildly outdated in the digital age. The standards in Sullivan have “evolved into a subsidy for published falsehoods on a scale no one could have foreseen, [and] has come to leave far more people without redress than anyone could have predicted.”
I’d love to find a constitutional law scholar or Brennan aficionado who can help me square Brennan’s seeming disdain for reputation in Sullivan with his defense of reputation in Paul v. Davis, another case I’ve written about quite a bit, including at The American Spectator. If you know a Brennan-ologist, send them my way!
But until then, please head over to The American Spectator to read the whole thing.
Photo credit: Mark Stebnicki via Pexels.