Antonin Scalia’s Opinion of the New York Times Co. v. Sullivan Decision

By Free Republic | Created at 2024-12-01 02:06:29 | Updated at 2024-12-01 04:32:06 2 hours ago

Antonin Scalia’s Opinion of the New York Times Co. v. Sullivan Decision
youTube ^ | 2014 | Scalia, Ginsberg, & Kalb

Posted on 11/30/2024 5:53:37 PM PST by conservatism_IS_compassion

Relevant section starts at 21:40 into the youtube video.

The 1964 New York Times Co. vs. Sullivan was handed down as a unanimous decision of the (to conservatives, notorious) Warren Court. It was not only unanimous, but included enthusiastic concurrences by justices who wanted to go even further.

In is the Sullivan decision which severely inhibits the filing of libel suits by “public figures” - emphatically including politicians. The theory of the decision basically was that politicians are big boys who can handle themselves in propaganda contests because they have political parties behind them.

Scalia’s rebuttal is that “the” freedom of speech, or of the press referred to American understanding that speech and press freedom had recognized limits at the time of the passage of the First Amendment. And that there was no understanding, anywhere in America, that the First Amendment touched existing laws against libel, slander, or pornography.

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It was not the case that the framers of the Constitution were at all opposed to any part of the Bill of Rights, rather the absence of any bill of rights in the unamended Constitution reflected fear that no bill of rights existed or could be composed which would not risk denigrating some right or another, and the whole thing would be a controversial mess. And controversy was the very thing that the Framers wanted to avoid. The Federalists also feared that a listing of rights would be treated not as a floor under our rights but - as certainly can said to have historically been the case - a ceiling over them.

SCOTUS did not legitimately have the right to take away the right of an aggrieved to sue for libel. The impact of Sullivan, I would argue, has been growing all my life. Politics was at least somewhat civil when there could be consequences for bold-faced lying - which is what we have seen Democrats engage in. Republicans have done much less of that for the simple reason that Democrats have had the “air cover” of the MSM - something which was not considered in the Sullivan decision.

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