Is It Time To Overrule New York Times v. Sullivan?

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  • Likely, most readers of this blog have heard of the landmark U.S. Supreme Court case of New York Times v. Sullivan, which came down in 1964. That case imposed a big limitation on the state law of libel, said to be based on the First Amendment to the U.S. Constitution.

  • The law of libel — which is a matter of state rather than federal law, and mostly of common law rather than statutory law — generally allows a plaintiff to sue someone who harms his reputation by publishing false statements about him. At the time of the New York Times decision in the 1960s, there was widespread perception that state libel rules were being abused by public officials to silence legitimate criticism of them by the press.

  • The holding of New York Times v. Sullivan was that, to be consistent with the First Amendment, a public official cannot sue for libel, even based on published false statements, unless the official proves that the publisher acted with “actual malice” in making the statements. Subsequent federal court decisions have expanded the protections of the rule to apply not only to “public officials,” but also to “public figures” — a broad and indefinite category that might include anyone who speaks out on any subject of public interest.

  • But has the pendulum now swung too far?

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Who’s Attacking Our Democracy?

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  • The breach of the Capitol on January 6 by pro-Trump demonstrators took Americans by surprise. There have been many reactions in the aftermath, but responses by the mainstream media completely miss -- or intentionally misrepresent -- the underlying issues.

  • The Capitol breach felt like a turning point, but not because Trump supporters are particularly dangerous or violent as the media would like us to believe. If their demonstration attacked our democracy, it’s because we are living in a democracy so divided we no longer share any goals in common.

  • As long as the party in power seizes opportunities to silence or oppress its opposition, that divide can only widen.

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The Big Tech Suppression: Is There A Potential Legal Remedy?

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  • As all readers undoubtedly know, the breech of the Capitol building by pro-Trump demonstrators on January 6 set off a co-ordinated effort by the Big Tech oligarchs to purge important conservative voices from the internet.

  • First, President Trump himself was banished from Twitter and Facebook. Next came the banishment of notable Trump supporters like Steve Bannon, Michael Flynn and Sidney Powell by some combination of Twitter, Facebook and/or Google. Then, as alternative conservative-friendly social media site Parler understandably began to surge, Google, Apple and Amazon co-ordinated to shut it down by simultaneously removing it from app stores and closing down its servers. Other notable targets of the suppression so far have included the #WalkAway website, and former Congressman Ron Paul. There are likely to be many more — I don’t know any way to get a comprehensive list.

  • A very reasonable reaction is, this can’t possibly be legal. We’re talking here about hugely powerful private companies co-ordinating to suppress political speech with which they disagree.

  • And it’s not just any political speech, or some fringe movement, but rather some of the most important, if not the most important, voices of the main political opposition coalition, a coalition that just came within a hairsbreadth of winning the national election. And add to that that the suppressed entities just happen to include significant economic competitors of the suppressors.

  • Surely, the law must offer a remedy.

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It’s Time To Take a Stand for Free Speech

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  • Back in October, weeks before the election, my dad, the Manhattan Contrarian, came home from his office and announced that he had purchased 6 MAGA hats. He wanted to know if anyone else in our family wanted one.

  • My dad lives in downtown Manhattan and commutes to his office in the financial district most weekdays via subway. Everyone in the family had the same immediate reaction: “You can’t possibly wear one of those in public - to your office or on the subway. You will get beaten up. This is not a joke. It’s dangerous.”

  • My dad, as he often does, dissented. His argument was that we need to show that we won’t be silenced…

  • He has a point. Throughout history and in the modern era, when we look around the globe, the silencing of any who disagree with The Party has been a hallmark of all authoritarian, dictatorial, and fascist regimes.

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We Have Ceded Too Much Moral Authority To The Federal Government

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  • Our Constitution was intentionally written to accommodate a diversity of world-views. Yet in the 21st century, progressives seem to want our president to personally represent the values of the 330 million people living in this country.

  • The policy positions driving the left to the polls in the upcoming election show an accelerating trend towards conflating government with religion.

  • The push to impose a uniform moral order represents a significant change, and not for the better.

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Do Democrats Really Care About Meaningful Police Reform?

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  • After George Floyd died in the hands of police in Minneapolis at the end of May, and with the ensuing wave of protests and riots calling for an end to police brutality, you might think that enacting policing reforms would be the number one priority of Democrats both in Congress and in state and local jurisdictions they control.

  • But if you look at the evidence, a better inference would be that Democrats are trying to use these issues towards their own partisan gain, with no real effort to get most substantive reforms enacted any time soon, if ever.

  • I have many disagreements with the Black Lives Matter (BLM) movement, but one thing we can agree on is that policing in America needs reform.

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