‘Uninhibited, robust and wide-open debate'? Sure, but on our terms
Ever since the United States Supreme Court eviscerated libel law in New York Times v. Sullivan in 1965, rather than debate being opened up, a steep price has been exacted from those who disagree with the fringe minority that was the chief beneficiary of the new judicial dispensation. In the name of dissent (aka liberal dogma), those who dissent from the liberal agenda are increasingly subjected to persecution and even prosecution.
The object was to protect “uninhibited, robust and wide-open debate.” But it has not worked out that way.
From the 1920s to the 1960s, the Court shaped the meaning of freedom of speech and press for our states, beginning with decisions that considered only the speech’s danger to public peace and discounting its content, even though protected advocates of Communism, Nazism and white racism (eventually black racism) almost invariably were violent.
These efforts reached a climax in the Times case as the author of the unanimous opinion, Associate Justice William Brennan, actually wrote that even false statements are protected for publication, provided that the speaker did not know they were false or unless he or she acted in reckless disregard of their truth or falsity (actual malice).
The case in question involved a political advertisement in an Alabama newspaper that falsely accused Montgomery Public Safety commissioner, L. B. Sullivan, of making more arrests of civil rights demonstrators than he actually did, an error for which the Times apologized and which under other circumstances should have resulted in nothing more than an admonition to Alabama to temper its libel laws. Instead, the Court in effect threw out the baby with the bathwater by removing the only real basis for libel law, which is to uphold publication of the truth.
This was convenient for civil rights demonstrators, and many others far less worthy, whose guiding star in those heady days was the fuzzy notion of “commitment,” or the claim that my cause is just simply because I am strongly committed to it. Since that time, many states have passed so-called “hate crime” laws, which punish people for advocating or being motivated by socially unacceptable prejudices, loosely defined.
What has occurred is the restoration of the old idea that the content of the speech matters, only instead of that questionable content being a threat to the Constitution it became a threat to the liberal agenda. This includes not only civil rights (which itself degenerated into reverse discrimination), but the growth of the administrative state, with its massive taxing, spending and regulatory powers.
Only two years before the Times libel case was decided, the Federal Communications Commission issued its misnamed Fairness Doctrine, which required media that expressed opinions to give “equal time” to opposing views. This nipped conservative opposition to the Kennedy and Johnson Administrations in the bud by silencing talk radio just as it was getting off the ground. Fortunately, in 1985 the Commission reversed itself and the explosion of talk radio has been the result.
Freedom’s ability to break out of the straitjacket which modern liberalism has imposed on it frustrates liberals, who thought they had not only a monopoly on mass media but also on public opinion. But as British writer Malcolm Muggeridge said about Russian dissident Aleksandr Solzhenitsyn, even ground which has been paved over may be penetrated by a flower growing between its cracks.
But freedom’s victory is by no means assured. In the state of Ohio, blogger Ed Corsi has been prosecuted on the specious grounds that his failure to “register” his politics-oriented web site put him in violation of campaign reform laws.
When he was summoned to a hearing before the Ohio Elections Commission in April 2011, Mr. Corsi asked, “Do I have to hire a lawyer to [do] these things?” Commission Chairman Bryan Felmet replied, “Yeah, I guess so. I think that it’s very complicated without going to those lengths.” The commission ordered Mr. Corsi to register and report his activities to the state. The case is on appeal to the U.S. Supreme Court.
Those who have read our colonial history know that licensing of newspapers was part and parcel of British governance of its colonial and native subjects. Thus, we are poised to return to the repressive regime our ancestors rebelled against.
Starting from the original purpose of protecting supposedly vulnerable protesters against repression, today’s liberals would shut up or at least burden those who disagree with them.
Richard Reeb taught political science, philosophy and journalism at Barstow College from 1970 to 2003. He is the author of “Take Journalism Seriously: ‘Objectivity’ as a Partisan Cause” (University Press of America, 1999). He can be contacted at email@example.com