* Editor's Note: The 50th anniversary of New York Times Co. v. Sullivan is this Sunday, March 9.
For me, and for other media attorneys of my generation, it is almost impossible to conceive of a world without New York Times Co. v. Sullivan. Certainly, the “actual malice” standard announced in Justice Brennan’s celebrated opinion, and the interplay between that standard’s twin elements of fault and falsity have, throughout my lifetime, been the defining features of the law of defamation. But the impact of that landmark decision extends far beyond the realm of reputational torts.
Sullivan has shaped our very understanding of the First Amendment—as a reflection of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open”—and it serves as a touchstone in virtually every case that calls for an interpretation of the constitutional guarantees of free speech and a free press.
For evidence of Sullivan’s enduring and continued role in shaping First Amendment thought and jurisprudence beyond the scope of defamatory speech, one need look no further than the Supreme Court’s 2012 decision in United States v. Alvarez. Alvarez addressed the constitutionality of the Stolen Valor Act of 2005, a federal statute that made it a crime for an individual to falsely claim that she or he had been “awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”
A six-justice majority concluded, albeit for different reasons, that the statute was unconstitutional under the First Amendment. While Justice Kennedy in his plurality opinion, and Justice Breyer in his concurrence, disagreed as to the proper analysis, they agreed in at least one critical respect, finding that false speech is not outside the scope of the First Amendment—an idea rooted in the reasoning and holding of Sullivan.
Federal District Court Judge William J. Martini dismissed a case against the New York Police Department for “engaging in blanket surveillance” of Arab Muslim communities after September 11, 2001. Adam Serwer of MSNBC exposes why the court’s decision shows that “religious profiling is okay, as long as you have a really good reason.”
Christopher Sprigman of Just Security examines the public relations effort by the National Security Agency’s Director of Compliance John DeLong and the agency’s General Counsel Rajesh De concerning the NSA’s controversial surveillance activities. In the article, Sprigman reveals why these efforts “create the appearance but not the reality of lawfulness.”
Today, the U.S. Supreme Court will hear arguments regarding the regulation of greenhouse gas emissions by the Environmental Protection Agency. Robert Barnes at The Washington Post breaks down Utility Air Regulator Group v. Environmental Protection Agency. For more on this case, please visit the ACSblog.
Writing for the Brennan Center for Justice, Andrew Cohen comments on the lack of media coverage on states’ secrecy laws concerning the types of lethal injections used in executions. Cohen discusses the implications of the media’s inaction.
At ACLU’s Blog of Rights, Nusrat Choudhury deconstructs Lee Daniels' The Butler and how its depiction of the arduous legal battles of the 1960s Civil Rights movement reminds viewers that “considerable distance remains on the path to true racial equality.”
Some legal scholars and defenders of the indefinite war on terror are coming, mostly with strained arguments, to the defense of the Obama administration’s abuse of freedom of speech. The First Amendment’s speech clause includes protection for a free press, a fairly fundamental way people communicate.
But the Obama administration, which has carried on some of the Bush administration’s counterterrorism tactics, and escalated others, such as the drone war, is obsessed with going after public officials and others suspected of leaking important details of counterterrorism activities and other national security concerns.
The Department of Justice has trolled the phone records of Associated Press reporters in a leak investigation of the AP’s coverage of a foiled terrorist plot in Yemen, and spied on the work of Fox News correspondent James Rosen, in another leak case involving a 2009 story about North Korea’s announcement of launching a nuclear missile. The Washington Post reported that the DOJ “used a security badge to access records to track the reporter’s comings and goings from the State Department… and “traced the timing of his calls with a State Department security adviser suspected of sharing the classified report.” The DOJ, The Post continues, obtained a search warrant for Rosen’s personal e-mails. The DOJ didn’t stop there. It’s arguing that Rosen may have been a co-conspirator in the leak. So now you have the federal government using the Espionage Act to go after alleged leakers, and a journalist, whose job partly entails keeping the public informed about its government.
Gabe Rottman for the ACLU’s Blog of Rights says “never before has the government argued that newsgathering – in this case, asking a source to provide sensitive information – is itself illegal. That would, quite literally, make virtually any question by a reporter implicating classified information a potential felony.”
Last week, when taking questions about his administration’s leak investigation involving secretly culling AP phone records, Obama said no apologies were necessary and provided a tired defense of his administration’s obsession with investigating and prosecuting leaks. Essentially Obama said trust the executive branch and leakers are bad.
But as noted here before war, as George Orwell once wrote has the effect of not meshing terribly well with individual liberties. In Homage to Catalonia about the Spanish Civil War, Orwell wrote, “The fact is that every war suffers a kind of progressive degradation with every month that it continues, because such things as individual liberty and a truthful press are simply not compatible with military efficiency.”
Like his predecessor President Obama has embraced an aggressive, mostly secret and, at times, constitutionally suspect approach to waging a never-ending war on terror.
Unlike its predecessor, the Obama administration has obsessively investigated leaks of information surrounding some of its counterterrorism efforts. The administration has launched at least six cases of alleged leaks, including one involving a foiled terrorist plot in Yemen that The Associated Press reported on last spring. As part of that investigation the Department of Justice secretly gathered and culled through phone records of AP reporters.
Going on the information we have now it appears that the First Amendment, which protects freedom of speech including press from government interference, was too easily shunted aside in an over-the-top investigation of a leak. The AP was given no chance to challenge a government search of its phone records and have a judge decide whether national security interests trumped freedom of speech in this instance. Yes, Attorney General Eric Holder claims the leak was one of the most egregious he has seen in a long, long time. But he doesn’t explain how it was so terribly egregious, nor do the facts as we know them now support his sweeping assertion.
And today, during a press conference, President Obama hardly appeared fazed by the criticism of the DOJ’s tactics, decrying leaks of counterterrorism efforts. “Leaks related to national security can put people at risk, they can put men and women in uniform that I’ve sent into the battlefield at risk,” he said.
But the May 7, 2012 reporting by the AP, had, according to its president, Gary Pruitt, been held until the White House assured the AP that “national security concerns" were no longer an issue. Pruitt added, “Indeed the White House was preparing to publicly announce that the bomb plot had been foiled.”
Earlier this week The New York Times Editorial Board hammered the administration for its “zeal” for going after persons accused of leaking national security information. In the AP matter, The Times Editorial Board said the administration had offered no “credible justification for secretly combing through the phone records of reporters and editors at The Associated Press in what looks like a fishing expedition for sources and an effort to frighten off whistle-blowers.”
It’s rather lame to argue that just because Republicans howled loudly over the AP coverage of the foiled terrorist plot in Yemen that the DOJ’s obnoxious action of spying on the AP was somewhat mitigated. Moreover, it’s not like this administration has needed prodding to aggressively and obsessively go after alleged leakers.
America’s confidence in the news media has hit an all-time low, a recent Gallup poll reveals.
Today, a mere quarter of Americans holds much faith in the press. It is difficult to pinpoint exactly what is responsible for this precipitous decline. But a good place to start may be the media’s transformation from watchdog into, as Glenn Greenwald puts it, “inept stenographers.”
The New York Times, for instance, recently admitted it grants politicians, campaigns, and senior policymakers final editing power of on-the-record quotations:
From Capitol Hill to the Treasury Department, interviews granted only with quote approval have become the default position. . . . It was difficult to find a news outlet that had not agreed to quote approval, albeit reluctantly. Organizations like Bloomberg, The Washington Post, Vanity Fair, Reuters and The New York Times have all consented to interviews under such terms.
The revelation comes after The Timessought reader input on whether it “should challenge 'facts' that are asserted by newsmakers.” Readers had evidently become “fed up with the distortions and evasions that are common in public life,” The Times wrote in January.
Six months later, The Times has demonstrated just how far distortions and evasions seep into its own reporting. Modern political reporting has embraced what press critic Jay Rosen calls “The View from Nowhere.”
“Something happened in our press over the last 40 years or so that never got acknowledged,” he writes. “[T]ruthtelling was surpassed by other priorities the mainstream press felt a stronger duty to. These include such things as ‘maintaining objectivity,’ ‘not imposing a judgment,’ [and] ‘refusing to take sides.’”