The Framers, I think mentioned the freedom
of the press in the first amendment, because
they recognized that freedom of mass communication
is a very important check, perhaps the most
important check on government power.
And that's especially so in a democracy.
In a democracy, the people govern, but the
people have to be aware of what is happening,
and the only way that they can learn what's
going on, they can hear the arguments about
what's going on, is if printing presses, and
now their technological heirs, are free of
government censorship.
Political advertising is, generally speaking,
fully protected by the first amendment, subject
only to narrow exception for libel.
That's in fact what was involved in New York
Times v. Sullivan, a political ad.
Sullivan was a police commissioner who claimed
that he was libeled in an ad that the New
York Times published.
Libel is defined as a false, factual assertion
about someone that damages the person's reputation.
The contested statement came in an advertisement,
which accused local police of various kinds
of misbehavior related to the civil rights
movement.
The police commissioner claimed that there
were errors in the statement that were libelous
and therefore, he should be able to recover
damages.
And he sued; the New York Times, got a massive
verdict in Alabama courts, and then that went
up for review to the U.S. Supreme Court.
The court concluded that the first amendment
does apply to libel lawsuits.
So, political advertisements about public figures
are fully protected by the first amendment,
subject only to the rule that knowing or reckless
falsehoods are not protected.
Reputation is very important to people, and
the damage to the reputation could be extremely
harmful to their lives and to their dignity.
Some damaged reputation is inevitable in public
debate, especially about public figures and
public officials, and some of that damage
may even be unjustified, but so long as people
are refraining from intentionally lying, so
long as people just sometimes make inevitable,
honest mistakes in public debate about public
officials and public figures, the Supreme
Court held that speech has to be protected.
So what the court said was, that the plaintiff
has to show by clear and convincing evidence,
if the plaintiff is a public official, that
the defendant speaker actually knew the statement
was false or was reckless.
In practice, this knowledge or recklessness
standard has been very hard for plaintiffs
to meet.
And I think the Supreme Court deliberately
made it hard.
New York Times v. Sullivan is important because
it's important that people be able to freely
discuss and criticize the actions of government
officials.
If every time you criticize a government official,
you risk a lawsuit because of some innocent
mistake, maybe even a reasonable, factual
mistake that you made, then, in that case,
the newspaper publisher, or blogger, might
well be quite reluctant to make such criticisms,
and maybe every time you're threatened with
litigation you'll immediately take them down
for fear that you'll be bankrupted.
So the Supreme Court concluded that, because
of that, there needed to be considerable immunities
given to those who discuss public officials,
even when they make mistakes in what they
say about public officials, because otherwise
there'd be so much of a chilling effect on
speech, including true speech, that the public
debate needed for democracy so that people
will be able to decide whom to elect or reelect
would be stymied.
