Talk of limiting freedom of the press – the right to lie with impunity


A NY Times briefing reports that last month, Gorsuch said it was time for the Supreme Court to take another look at the Sullivan case, a freedom of the press case.” The ruling, in that case, allows the “occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” he wrote in a dissenting opinion. However, it “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

Justice Clarence Thomas agrees and has repeatedly called for the Supreme Court to reconsider Sullivan and rulings extending it, saying they were “policy-driven decisions masquerading as constitutional law.”

In March, Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit endorsed that view in a dissent but said that overturning Sullivan would be a heavy lift. “I recognize how difficult it will be to persuade the Supreme Court to overrule such a ‘landmark’ decision,” he wrote. “After all, doing so would incur the wrath of press and media.”

The press is biased, he wrote, and so does not deserve Sullivan’s protections. “Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets,” Silberman wrote. “And the news section of The Wall Street Journal leans in the same direction.”

The Sullivan ruling requires proof that the disputed statements were made with “actual malice” — knowledge of their falsity or with serious subjective doubts about their truth, The Times writes.

The Sullivan decision was limited to public officials. Later decisions required “public figures” — celebrities and people caught up in public controversies — to make the same showing.

It allows media to destroy peoples’ reputations and lie with impunity.

In a 1993 book review, Justice Elena Kagan, then a law professor at the University of Chicago, said those were “questionable extensions.”

“In extending Sullivan,” she wrote, “the court increasingly lost contact with the case’s premises and principles.”

RonNell Andersen Jones, a law professor at the University of Utah, said, “There is a reason that Donald Trump and other politicians hate the Sullivan standard so much,” she said. “It is a key way that we make sure that government officials and other people in power can’t silence their critics. It would be a massive blow to American-style free speech to lose it.”

What about the lying part, RonNell?

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