This week, Tim and I were joined by old friends Mike (@Whisper1111 on Twitter) and Seth (@SethP23 on Twitter) to continue our discussion of the Tucson, Arizona shootings, and the memorial service at which President Obama spoke last Thursday evening. We also discussed the statements issued by Sarah Palin and Sharron Angle last week, and Rachel Maddow’s smart commentary on both:
One thing is worth emphasizing, however: Although I have been critical of Palin’s and other conservatives’ indifference to genuinely violent rhetoric coming from some of their supporters (and Palin’s presumably ignorant use of disturbing sources like Westbrook Pegler and phrases like “blood libel”), I wholeheartedly agree with what Maddow says in the clip above – that vigorous, even rancorous debate has an important place in our politics. As I mentioned on the show, the great liberal Supreme Court Justice William Brennan said, in New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), that in America we have “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” And that’s as it should be.
Moreover, historically, liberals have been the ones who’ve had their First Amendment rights threatened by conservatives who wield power. The New York Times case is illustrative: In that case the Respondent, L. B. Sullivan, a Montgomery, Alabama, City Commissioner, sued the New York Times and four African American pastors for libel in Alabama state court:
Respondent’s complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, 1960. Entitled “Heed Their Rising Voices,” the advertisement began by stating that “As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.” It went on to charge that “in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom. . . .” Succeeding paragraphs purported to illustrate the “wave of terror” by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, “the struggle for the right-to-vote,” and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery.
376 U.S. at 256-57.
According to the Supreme Court, there was no dispute that some of the factual assertions contained in the advertisement were not true. So, the trial court entered a verdict in favor of Sullivan and against all of the defendants for $500,000, and the Alabama Supreme Court affirmed.
The U.S. Supreme Court, however, overturned the verdict and sent the case back to the Alabama courts for a new trial, stating:
We hold today that the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action, the rule requiring proof of actual malice is applicable.
In other words, the Court felt the need for “uninhibited, robust, and wide-open” political debate is so critically important to our country that even where criticism of a public official contains falsehoods, it cannot be the basis for a claim of libel unless the statement is made with “actual malice” – that is, with knowledge that the statement is false and a desire to harm the person by intentionally publishing false information.
Which is not to say that politicians and political commentators should speak recklessly, or should use violent imagery; nor is it to say that when a politician or political commentator does speak recklessly or uses violent imagery, he or she should be insulated from criticism. After all, the First Amendment is a two-way street, and Palin and Angle – and any other political actor, right or left – can and should be criticized for their rhetorical excesses, especially in volatile times.
But there is no doubt that those rhetorical excesses, desirable or not, are absolutely protected by the First Amendment.
© 2011 David P. von Ebers. All rights reserved.