Nixon’s ghost and why populist attacks against New York Times v. Sullivan fail
One of the pleasures of writing this newsletter is getting paid to read the paper. Specifically, getting paid to go through the New York Times’s print archive looking for historical antecedents to modern threats to our free press, an exercise that is invariably successful. This week’s edition is Vol. Florida, No. so-many-this-is-getting-
For anyone following the news, the legislative proposals in the Sunshine State to weaken constitutional protections for political speech established in New York Times v. Sullivan and its progeny should be familiar.
Gov. Ron DeSantis has called for revisiting the “actual malice” standard — the requirement that a public figure defamation plaintiff prove that a speaker knew a statement was false or seriously doubted its truth — and allies in the Florida House and Senate have introduced bills to do just that. (The state senator who introduced the Sullivan bill also offered legislation that would require any “blogger” writing about certain public officials to register with the government, a measure that would be well at home in Russia today and one that is unlikely to go anywhere.) We wrote about the defamation bills last week.
What has received less focus is how DeSantis and his allies have draped the measures in populist rhetoric as all about protecting the “little guy.” As the governor said in a press release following a roundtable featuring advocates for walking back Sullivan, “When the media attacks me, I have a platform to fight back. When they attack everyday citizens, these individuals don’t have the adequate resources to fight back.” The fight, he said, is about standing up to “massive media conglomerates.”
The problem with that line of reasoning is twofold. One, it’s just not true. The demonstrable fact is that news media libel claims are both bringable and winnable by the “little guy” (and many don’t involve actual malice at all because they are not public figures). Defamation cases also continue to be brought against the little guy by the powerful. And, even with Sullivan, you still have deep-pocketed litigants misusing the system, like former President Donald J. Trump citing his past office to defend against a libel suit, while routinely bringing cases against news outlets he thinks cover him unfairly.
Two, and more importantly, appeals to populism by the powerful, in an effort to constrain rights, tend to mask a dangerous dynamic that animates our Constitution — that the impulse to control speech perceived as critical is difficult to resist for those in power. It’s just easier than having to engage on an equal footing with the electorate.
And that brings me back to reading the paper.
On March 9, 1974, President Richard Nixon was really in the soup. While he had been reelected in an historic landslide in 1972, by the winter of 1974, his approval rating was hovering at about 25%, with about 40% saying he should be removed from office.
At the same time, what would become another landmark press case was pending before the Supreme Court. In Miami Herald v. Tornillo, the Court confronted a “right-of-reply” statute from, where else, the state of Florida. The law created a legal right for a politician to print a response to a critical editorial in the same paper that ran it.
In that March 9 edition of the Times, Watergate was all over the place. The front page had no less than three Watergate-related stories, and the editorial page had an extraordinary piece titled “Something’s Inoperative.” The editorial contained no prose. It was simply four quotations: three from the president, where he initially denied and then admitted he was told payments to the Watergate burglars were hush-money, and the text of the federal “misprision” law, which, to oversimplify, makes it a crime to not report a crime.
With that context, there was another above-the-fold, A1 story, headlined “President Urges Campaign Reform with Gift Limits” and reporting on the president’s call to take “steps to encourage more good people to run for public office.” There, he called out Sullivan as being “virtually a license to lie” and asked the Justice Department to consider remedies, which included a federal version of that Florida statute.
It cannot be a coincidence that Nixon would call for such a measure — nominally in defense of those “good and decent people” seeking office — as his presidency was circling the drain. And it cannot be a coincidence that the Supreme Court, in June 1974, would unanimously strike down the Florida statute as violative of the First Amendment. Nixon would resign slightly over a month later when the “smoking gun” tape confirmed that he had been central to the cover-up from the beginning.
At the end of the day, the populist argument for revisiting Sullivan is simply unintuitive. The First Amendment is a check against power. And nothing is more dangerous to the “little guy” or the “good and decent people” than a government unchecked by the ballot and legal protections for “erroneous statements honestly made” in the hurly-burly of political debate, as Justice William Brennan put it in his opinion in Sullivan.
Can one say with a straight face that Nixon’s concern with the “good and decent” office-seekers was genuine? A right-of-reply statute would have undoubtedly helped him, given how central an adversarial press was to uncovering his crimes. It would either make the press think twice about reporting something Nixon could see as dangerous to his political fortunes, or at least let the White House spin bad news in the same outlet reporting that news.
Similarly, it is a fact that DeSantis’s desired policy would help public officials like him — of any political stripe — entrench political power by squelching dissent. Nothing could be less in the interest of a nation where the “little guy” is supposed to be sovereign. Fortunately, as in Sullivan and Tornillo, the law courts and the court of public opinion haven’t fallen for this faux populism. We should be confident they won’t this time.
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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.