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Federalist Radio Hour
The Constitutional Case For Fixing Corporate Media’s Libel Loophole
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On this episode of The Federalist Radio Hour, author Carson Holloway, a professor of political science at the University of Nebraska Omaha, joins Federalist Elections Correspondent Matt Kittle to explain everything wrong with the Supreme Court's...
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A
Thanks for having me on, Matt. It's a great pleasure.
- [02:20]
B
Yeah, it's a great topic. It's an interesting topic and it's something that seems a to a number of legal minds that have followed this. And, and, and let's start here. I want to get your take on it. I I have heard before that this case in 1964, New York Times v. Sullivan, is like Roe v. Wade in that it was bad law from the beginning and it's bad law lo these many years later. Think of that.
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A
Well, I agree with that, to be honest with you. And part of the reason I wrote the book is because it seems to me that the contemporary Supreme Court is willing to do a bit of a cleanup operation and jettison some of the earlier precedents that were not really based on the original understanding of the Constitution or how it was historically understood. Roe being reversed in the Dobbs opinion a few years ago is one of the most famous examples of that. But more generally, in a variety of opinions, they have suggested a desire to be governed by or guided by the text, the original meaning, the historical understanding, the traditional understanding. And that would direct you to reconsider New York Times versus Sullivan as well, I believe. Now, you could say this in defense of the Sullivan Court and the opinion written for it by Justice Brennan. Unlike in Roe, there is an actual text you can rely on. The First Amendment is actually there, and it does protect freedom of the press, whereas there's no mention of abortion at all in the Constitution. And so I think the Roe Court was freewheeling it even more egregiously than the Sullivan Court did. But since the text doesn't tell you what freedom of the press means or what its scope is, you really have to look beyond it to the materials that influenced the Founders when they thought about freedom of the press. And what I find and what I argue in my book is that that understanding did not include libel, whether it's of anybody or of a public official or a public figure. So I think that, yeah, the Sullivan Court was creating a constitutional problem where there really hadn't been one before, and then devising a new doctrine to solve that problem that was not rooted in the tradition.
- [04:47]
B
And that was all coming out of a very liberal court that was doing some very liberal things at the time. And you call it a product of judicial policy making, untethered to the real meaning of the First Amendment. And I think you just kind of explained why that is. But let's dig into that a little bit more. So, sure. What was the justification for the ruling in 1964? And to do that, I think we have to start with the incident that spurred all of this. And that was an ad, not a story in the New York Times, but an ad.
- [05:30]
A
That's right. The case arose really out of the civil rights movement. It's what we would call a civil liberties case because it's about one of the individual rights protected in the. In the Bill of Rights, in the First Amendment, of course, but the occasion for it was the civil rights movement and the prosecution of Dr. Martin Luther King in Alabama for, I think, some fraudulent claims against claims that he had behaved in a criminal manner. This was an abusive case that was designed to deter him in his civil rights work. I think everybody recognizes that now. But his friends put together an organization to defend him and the cause of integration in the South. And they put an ad in the newspaper, in the New York Times called Heed Their Rising Voices. In which they complained about the prosecution and the persecution of Dr. King. And also decried the kind of intransigence and abusive tactics of Southern officials in the context of the civil rights movement, especially in Alabama. And so what ended up happening is that LB Montgomery, who was a city commissioner for the city of Montgomery, Alabama, and the one in charge of the police. Sued the Times and others involved in the ad. Because he felt that it defamed him. And the truth is that there were things in the ad that were not entirely accurate. And that did reflect badly on the Montgomery Police Department. And so he was able to prevail in the courts of Alabama and the District Court. And then later in the Supreme Court of Alabama. And the Times appealed it up to the Supreme Court, who then reversed Field and ruled for the New York Times. And in doing that, changed the character and the standards of American libel law. I like to emphasize at this point in the discussion that in the book, I say. And I personally think I don't have a problem with the outcome of the case. Because I think there are some real grounds for which or on which Sullivan ought not to have won. I don't think they had a strong case that he had been defamed in part because the ad did not even mention him by name. It didn't mention the office he held. Pretty weak case that you've been defamed by implication. So the fact that he won is not a problem. The problem to me is that the court changed the libel standards. And introduced a novel doctrine in the context of that ruling. You mentioned also that other people have been saying this kind of thing. And certainly this is consistent with what Justice Thomas said in one of his concurring opinions from a few years ago. That it would have been possible to rule against Sullivan without making these changes in American libel law. But the Court went further. As you said, this was an era of rather adventuresome judicial activism from the Supreme Court. It's the Warren Court. They're doing all kinds of new things that are not really tethered to the Constitution. Not only in the realm of the First Amendment, but across a whole range of things, but also more broadly in relation to the First Amendment. I mean, the changes in the libel standards are not the only thing that took place, they changed the obscenity standards as well, made it much harder to show that anything is obscene. So all of this kind of departure from the traditional understanding and the founding understanding, that's what I'm arguing.
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B
I know it when I see it. Speaking of whole obscenity battle, and we do, fortunately the extension got way out of hand and, and look where we are today on a number of different issues. But I, I think back in the history of this, the, the city public safety Commissioner you mentioned, L.B. sullivan, of course, whose name is on this, this famous lawsuit was extremely thin skinned. Of course, he, he, he, as you mentioned, he was all upset that this ad was somehow attacking him by attacking his, or, or at least bringing attention to. And, and so, you know, this was bigger than his complaint or his thin skin. This was really central to the civil rights movement and what Martin Luther King Jr. Was trying to do. And I agree 100%. I think the court could have and should have said, okay, your argument is rejected, move on. You, you don't get your $500 libel payout. But as you said, this court decided to go much, much further. And I will say this, I am talking to you as a journalist, someone who has been in this business for longer than he wants to mention. He's seen. This guy has seen a lot of changes in, in the journalism business. And I see it becoming, over my many years in it, much more divisive, much more politically driven, much more partisan, all of that. And I see the consequences of that. But I do have some sympathy for journalists who are doing their best in trying to bring the story of corruption, say in, in government or those kinds of things to light. And there are, there shouldn't be, but the, you know, mist happen in reporting.
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Right.
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This whole thing is really centered on the concept of malice though, right? Can you explain that?
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Yeah, that's very important. Malice in this context has a technical meaning. The, the doctrine announced by the court, the new doctrine in New York Times versus Sullivan is called the actual malice doctrine. Now the term actual malice goes back a long time and I'm not necessarily going to talk about that because the key point here is the meaning that the Supreme Court gave it in New York Times versus Sullivan, which is a new meaning. What they said was that if you're a public official, this is in New York Times versus Sullivan, later in subsequent cases, they extend it to public figures as well. But the doctrine is that if you're a public official and you have been defamed and you sue for libel you will have to demonstrate not only that the publication was false and defamatory, which is what would be the usual thing that would set you up for winning a libel suit. But if you're a public official, you also have to show actual malice, which means that the person who published did it knowing that it was false, or at least with reckless disregard for its truth and falsity. So that's a very high standard to meet. And the court in there, and in later cases as well, even admits that one of the costs is that there may be an actual case of defamation where the victim won't be able to win because it's so hard to meet that standard. And then, of course, the constitutional argument that I'm making is that that standard is a novel one and not rooted in the tradition or the original understanding of the First Amendment. But that's what's key, and that's what's kicked around a lot in these debates. Actual malice. That's what the Supreme Court means by act malice. And so one thing to notice about it, too, is that it goes far beyond, and the court acknowledges this, Brennan mentions it, Justice Brennan and some of his opinions from that era. It's beyond something like negligence. Right. In other words, if the journalists were merely negligent and damaged your reputation, that might not be enough for you to win because it's a really high standard. Later on, Brennan says, you know, actual malice requires either knowledge that it was false or a high degree of knowledge of probable falsity. Really difficult to show that anybody made a mistake that bad. And so this is part of what makes it so difficult for public figures and public officials to vindicate their reputations through libel suits.
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I love the term probable falsity, which was, by the way, the name of my fifth rock and roll band.
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Right.
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Probable falsity. You know, it's interesting that this case, you know, originate in New York. Obviously the case itself took place. The. The alleged offense took took place in Alabama, but against the. The New York Times. And you go back to the 18th century in this country, and there were some very critical battles over what libel really was and, and is. And that's where we get the text of all of this. And, you know, we had some very famous people battling out in courts over libel, including one Alexander Hamilton. How far. How far did this court go astray in the original meaning of what libel was all about?
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A
Well, yeah, I really like the fact that you mentioned Hamilton. I'm a Hamilton fan and a Hamilton scholar as well. There are these earlier cases that do come out of New York that also illustrate the older standards. I'm thinking now of People vs Croswell, which was a criminal libel case in which Hamilton argued and really kind of established the understanding of libel. That would be very influential in American practice for a long time. But to come back to your more general question about how far wrong did they go? I would say they went considerably wrong. And I would put it in. I would note two things. Here's the two prongs of my argument, I guess. How are they departing from the original understanding of the First Amendment? The founders did not think that a libel suit created a freedom of the press problem. Their understanding was simpler. It was influenced by thinkers like William Blackstone, the great commentator on English law. And you find it in great American commentators, too, like Joseph Story, who was on the Supreme Court, or James Kent, who was a judge in New York and a friend of Hamilton's. Their understanding was that libel is simply outside the scope of the freedom of the press. It's not an act of the liberty of the press. It's an act of licentiousness or abuse. A simple way of putting it, which I think has a lot of wisdom in it, is that you're not allowed to use your rights in any way to damage the rights of other people. And when you've done that, you've stepped outside the pale, so to speak. So they don't see a problem in relation to freedom of the press when there's a libel suit. And that's one of the ways in which the Sullivan court departed. They don't want to go so far as to say that there's a right to engage in libel or that there's a right to engage in libel of public officials. But they do say, we feel like there's a problem here in relation to freedom of speech because we're afraid that these suits may have a chilling effect on speech that is protected. So they're already engaged in a kind of balancing reasoning or prudential reasoning that I think the earlier generations would not have done. And then they devised the solution to the problem, which is the actual malice test. And I just don't find any evidence that at the time of the founding, people thought that a public figure or a public official or a candidate for public office would have to prove actual malice as understood by the Supreme Court if they'd been libeled by a publication. So I think that that's how I would summarize it, that they departed in that their whole analysis is based upon concerns that the Founders just didn't have. And then they come up with this doctrine or this test that is not one that the earlier generations would have used.
- [17:09]
B
Well, the earlier generations, I mean, think of some of these, these great critics of, of early government, of the early republic. I mean, James Call know, these, these guys were writing things between the Federalist and the anti Federalist. You know, accusing, accusing Adams of, of being, you know, what is it? Uh, I can't, I can't think of the, the accusation. It was, uh, he, he was accused of, of being neither a man nor a woman.
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A
Oh, yeah, yeah,
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Hermaphrodite. That's exactly right. And, and that's the phrase that pays today in our contest. Yeah, but I mean, there was really. I mean, if you look back at some of this stuff, some of it published anonymously, much of it actually, there's libel all over the place.
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Yeah.
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And so there were, there was this standard that was set, but it did still allow for a very free and open press, it seems to me.
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A
Yeah, this is a very important point and I'm glad you mentioned this. And in this context, I'll mention another great American of the law, William Howard Taft, who as you know, went on President.
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B
Yeah.
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Chief justice of the Supreme Court in the late 19th century. He was a federal appellate court judge,
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had a weight problem too, as I understand. As I'm told, it was all glandular.
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A
But well, that's not, and that's not a libelous remark because it is demonstrable. You know, he was a federal judge in the late 19th century and dealt with a libel case and restated the traditional standards. And he also acknowledged the kind of argument which was floating around that would later be used by the Sullivan Court and Justice Brennan, that, you know, you have to treat the press with a little more deference because we're afraid that it will intrude on freedom of the press. And in the late 19th century, Taft just says in response to that, no man who follows politics in England or the United States would think that the press is unduly shackled in its coverage of public figures or public men, as he would have said it. And I think that's a good point to make that I can understand the concern about abusive libel cases. But if we look at the whole history of the country, it's certainly the case that America has had very vigorous debate over public issues and public people. Even before New York Times versus Sullivan, we were a successful self governing republic with a very candid and even bruising public culture. So I think that's a reason to have some skepticism about all the fears that people entertain. If we were to go back to the traditional standard
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- [20:35]
B
Yes, all of this stuff was going on even as George Washington was warning America to stay away from factions and parties and all of that sort of stuff. Our guest today, fascinating book and I think a very critical topic. Carson Holloway, Political Science professor at the University of Nebraska, Omaha, author of the new book no Liberty to Libel the Constitutional Case Against New York Times vs. Sullivan this whole case, it reminds me of another one coming up because you mentioned the word deference. There's deference in the First Amendment to the press and the freedom of the press, as Taft, I think, well said it. That said, deference can only go so far. And in a more modern day case is the Chevron case involving bureaucratic deference where this Supreme Court, this contemporary Supreme Court said, yeah, it's one thing to take counsel from the so called experts, but that can't be the only driving force and you can't just defer to them no matter what.
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A
Right.
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B
That seems very similar to me. Your thoughts on that?
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A
That's an interesting comparison. I hadn't thought about that a great deal because the Chevron doctrine is a kind of canon of statutory interpretation. This is a constitutional question, but there's some kind of similarity of spirit. I like in the way that you put it that the court did away with that approach because they don't want to be in a position where they just have to accept what the administrative agency tells them about the law. It's their job to decide what the law means. And I think the parallel perhaps to this question of libel is that the New York Times vs. Sullivan Standard sets up a situation where the press is so protected that it's almost impossible to prove that they departed from proper professional standards or conduct in the way they decided to publish the story. I mean, it would be a lot easier to show and you can have a more searching inquiry into a situation where the evidence shows the reporter didn't really check the facts, didn't do enough digging to ensure that the thing that they were publishing which is damaging to somebody's reputation, is actually true. And if you brought all that out, it still wouldn't be enough to win because you have to prove that they either knew it was false or probably knew they knew it was probably false or they acted with this reckless disregard. So it does kind of set up a situation where they're almost allowed to act with impunity. And in a way it immunizes them from the kind of inquiry that you get in other professions. Right. If somebody sues a physician for malpractice, they're not going to have to show that he knew he was doing the wrong thing or acted with reckless disregard. They're only going to have to show that he behaved negligently. Same thing with a contractor or anybody else. So that's another complaint I have that I discuss in one of the later chapters of the book is that it kind of sets up journalism as a somewhat privileged profession because it can't be held to account the way other professions can.
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B
And that may be why journalism is seen with in such low regard from the American people, certainly the American voter and geez, I don't know. Are there any cases, modern day cases, where this elitist press has printed something that was so egregiously false that history, and it didn't take too long for history and the Federalist to show that it was egregiously wrong? Oh yes, that's right. There is a case. It's the Russia collusion hoax. And guess who it involved. The New York Times. That is a case that I think you could show malicious intent after they knew, they knew that this was a hoax that was peddled by Hillary Clinton and Mark Elias in the whole machinery, they did nothing to correct that. Certainly. And they want a Pulitzer Prize. Would that case if, if we did not have soul of envy? New York Times. Do you think that the President of the United States at the time, Donald Trump in term would have had a good case for libel?
- [25:26]
A
I want to talk about that, but let me do a quick detour and just mention that in one of the cases I cover, one of the early 19th century cases, so shortly after the founding, somebody makes a similar kind of argument that, you know, if they didn't know it was false, then you really can't hold the press accountable for what they published, that you have to defer to them extra. And the judge in that case said, you know, if that's the standard, no honest man could afford to be a journalist because the reputation would be so low, as you were just indicating. And I think that's the cost that has been paid over time for the Sullivan doctrine. Of course, it protects people from not only meritless but also meritorious lawsuits, but it created this culture of impunity in which the press has kind of trashed their own reputation. Now, going back to the Russia collusion hoax, it's a hypothetical. I don't know how things would have played out, but it's very clear to me that if you didn't have the actual malice standard, the President would have been in a much stronger position to sue to vindicate his reputation, because it would really. I mean, this is the kind of thing that journalists don't like. But I think there's a certain moral common sense to it, so I'm going to go ahead and mention it. The older standards, besides not including an actual malice doctrine, tended to defer to the reputation of the person whose reputation was being attacked, sued for libel. And it's really something outrageous that you've published about somebody. You're going to go into court and the court's going to say, the burden is really on you to demonstrate the truth of this accusation you've made against a person. Right. Whereas the modern approach is to say like, well, the defendant really has to vindicate their reputation. I think we should think about that carefully. If you're accusing someone in public life, something like treason or I mean, that term was used, right? Or collaborating with a hostile foreign nation to corrupt weapons, who's the one who should be in the position to prove that? Is it the person who's being accused of those things or is it the accuser? So, yeah, I think that the whole situation would have been different. And I make an argument about this in the book too, that I think one of the kind of ongoing problem is that that because the standard is so loose and because we do have a partisan press that wants to score points and damage their enemies, it creates a situation where they're willing to damage other people's reputations on the basis of things that may or may not be true. And it really distorts our whole project in self government, because what we really should want is for there to be vigorous debate over issues, the direction the country is going to take and things like that. And of course, if someone really has done something highly disreputable, then that's going to have to be debated too. But when it's so easy to defame people and to get away with it legally. There's going to be a temptation to kind of score points on people's character and distract from the public policy debates by focusing on bogus claims that somebody committed a crime, engaged in treason or what have you. So it's not really helping rational self government, I think, to have this freewheeling culture. Yeah.
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B
And I'll tell you, there are too many people on the left end of the political spectrum who believe rigorous debate is riot. So that's, that's the world in which we are trying to, to navigate. But it's interesting to note that the President of the United States who has constantly been under attack by this, this very partisan media, you know, he has been successful in winning money in libel cases, but not, not for libel itself, just settlements. I think about the ABC George Stephanopoulos case, What was that, $15 million there? There are a couple more, and there are many lawsuits outstanding and a number of lawsuits that the President has filed against the press that have not suc. Because of exactly what we're talking about today. But this is there oftentimes aren't political figures, knowing Sullivan, the New York Times willing to challenge this President has no problem challenging the press.
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A
Well, and he does have a lot of resources to bring to bear. Right. That's another issue, I think, with the doctrine. I was thinking about it the other day because I turn it over in my mind a lot because I'm still working on it. But I thought of the following kind of hypothetical. You know, we're thinking about public officials. Well, I mean, you could be a young mom and run for the school board and win. And now you're a public official and your reputation is just as vulnerable as the President's in terms of the legal standards that would be brought to bear. So this is indicative, I think, of a problem because when you think about a public official, of course you first think about the President or somebody highly prominent like that. But it could be somebody relatively humble up against a powerful corporation that's making money by publishing alleged information about them. I think on these cases you mentioned, it's hard to say for sure what they mean legally because when they settle, the thing doesn't get entirely hashed out. Right. Don't know what legal standards the court's applying because they decide not to take it to court. But. But it seems to me that the President's success in the cases in which he has succeeded does suggest that there is a problem in the media, because I am assuming that they would not settle in that way unless they thought that there was evidence in their own emails or their internal communications that they really had behaved abusively in the way that they handled the story. So that ought to be kind of a wake up call.
- [31:21]
B
It should. And we have, you know, seen this throughout. I mean, there are a lot of news organizations that are so committed to telling a narrative and being public relations agents for the Democratic Party in this country that the truth doesn't matter, but that that's at the core of what libel really is. As we go back in time, again, the argument is the, the defense against libel is the truth. There have been a lot of lies in modern day journalism. And so Sullivan is an artificial wall, is it not?
- [32:01]
A
Yeah, that's a good way of putting it. Right. According to the traditional standards, truth would be a defense. And the Sullivan doctrine kind of discombobulates the attention to the truth because it allows you to prevail even if what you told was not the truth. Truth. As long as you can make this plausible case that you didn't know that it was false or that you didn't act with reckless disregard. The reckless disregard standard really gives a lot of running room for somebody to behave in a way that I think is improper. If you had a negligent standard or something like that, the court would be asking something like, well, did you have some reasonable grounds to think this was true when you published it? Was there some kind of probable cause? Those that kind of language is used in older cases, but this is not what we're doing these days. Now, interestingly, if you want to go back to really old standards, and this is worth thinking about too, and just kind of unpacking, it's worth unpacking as it illustrates an older kind of solicitude toward reputation, let's say at the time of the Founding Hamilton. In that case we talked about briefly, or I mentioned briefly a few minutes ago, People vs Croswell argued that truth should be a defense for a libel claim. This is a criminal libel case. But he actually argued that it should be a qualified defense. He said it has to be truth told with good motives and for justifiable ends. And so if you go back that far, they're so protective of reputation that even truth is not an absolute defense. And we might wonder about that because we tend to think that, well, if it's true, you definitely have a right to say it. But what they were thinking about was that there could be ordinary people who are, you know, maybe have something bad in their past and you publish it and you're really not doing anything except maliciously harming their reputation. And there's no what good to come of it at all. You're humiliating the person. Right. And so if you had done that, you still might have been accountable for libel. Now, if you were a public person, a candidate for public office or somebody in a public trust, they would give a lot more room to the truth defense because the assumption would be that if that person had something disreputable in their past, and if it truly was an act of misconduct, then the public really had more right to know about it it than would be the case if it were a private person. So that's a way in which the standards at the time of the founding did recognize a difference between public and private persons, but it wasn't the kind of difference that would give rise to the actual malice standard which allows you to get away with saying something that's false.
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B
Well, it seems to me that in American politics, contemporary American politics, and this has been the case for, since the beginning of this republic and certainly the modern day press, this, it's very difficult to find good motive in corporate media and American politics on a lot of fronts. And so if, if we, if we can find that lost virtue, that would be, that would be very nice. The, the powerful stories that I've reported on. In fact, I just had a conversation with a doctor who was at the, you know, the forefront of fighting Covid and, and he was having great success with monoclonal treatments. You know, just, it was amazing. The government, the federal government was so impressed that they, they wanted him to, you know, set up an operation on this front at FedEx Field where the, the Redskins play in Washington D.C. and then he started, he started being the Biden administration's handling and shutting down of monoclonal treatments which seem to be in favor of this vaccine that, you know, was, had a controversial reputation, but that was the, apparently the, the treatment that the Biden administration wanted and, and nothing else. That was the argument. And so suddenly he found himself being charged by the Biden DOJ with falsifying Medicare records, which a judge in Maryland found was not the case at all. And this case shouldn't have come up to begin with, you know, and, and the, the bottom line is the statement that in this case and so many others is where do you go to get your reputation back? And that is fundamental, is it not, to this case and its implications?
- [36:56]
A
I think it is and I'm glad you brought that up because this is another area in which I think we can learn a lot from the moral wisdom of the Founders and the culture that they inhabited. We tend to think these days, I think, in terms of an opposition between the right to a free press versus reputational interests. That's a term that's often used by courts when they talk about this kind of thing. The reputational interest, interests at stake. So I think it's worth remembering that from the point of view of the Founders, reputation was a right and a natural right. This is in Blackstone who I mentioned before. He says there's a natural, It's a matter of natural justice to be able to vindicate your reputation. And some of the other early American commentators that I look at and I mentioned before, like James Wilson, who's one of the framers of the Constitution, James Kent and I mentioned him before the New York judge and Joseph Story, they all in various ways indicate that they do think that reputation is a right and a fundamental right or a natural right. Human beings are sociable beings. They care about what other people think about them. There's no question that if you trash their reputation, you have hurt them. You know, you've hurt them as bad as if you took their property or, or injured them physically. Yes, we need to remember that right. And in regard to everybody. And it would be a much better situation in the country if everybody would in the first place be more respectful to the rights of others, even when you disagree with them. I mean, you certainly any decent person would never throw a brick through the window of somebody that they disagree with politically. Well, you shouldn't be throwing a brick through their reputation either, unless there's some really good reason to do it and serious reason to think that what you're saying is true. And then of course, on top of that, it would just be beyond respect for rights. Be better if all Americans conducted themselves with more charity and sympathy toward each other generally. Then we wouldn't have these problems.
- [38:53]
B
Well, let's talk about where we go from here, because this has been a case that has been set for 60 plus years now. And these things have a way, as we saw with Roe v. Wade, of being so entrenched that nobody should dare challenge. Justice Clarence Thomas has never been afraid to challenge once again, and you mentioned it was back in 2023, the headline from the New York Times, Justice Clarence Thomas calls for reconsideration of landmark libel ruling. And of course, they take plenty of opportunities to the New York Times to boast about Sullivan. The New York Times. But where, where do you see this case going with this court? Because as you mentioned, th. A textualist, Alito, which you know, the, my editor in chief, Molly Hemingway, just wrote a great book about, about being a, a practical textualist. Where do you see this court going? Because it, I don't think it's just Thomas that would like to reconsider this.
- [40:05]
A
You're right about that. Justice Thomas has expressed deep skepticism about the doctrines in some of his concurring opinions in cases that did not get very far. But he wanted to lay out his thinking. And then after that, Justice Gorsuch also indicated questions and raised some arguments about the practical consequences of the Sullivan doctrine and the changed media landscape that we have today that you and I have been talking about too. So that's two. You would need five right now. Justice Alito has, I think, shown some willingness to think outside the box in terms of the First Amendment. His dissent in Snyder vs. Phelps, which was the Westboro Baptist Church case.
- [40:50]
B
That's right.
- [40:50]
A
Very sensible dissent in that case, that some forms of speech are also injuries to other people and these are not protected by the First Amendment. So I mean, I would like to think that he might trace that argument back to these issues regarding the Sullivan doctrine. You would still need a couple more. I mean, basically I wrote the book because it seems to me that you do have a kind of a functioning majority on the Court that is to varying degrees, committed to an original and historical interpretation of the provisions of the Constitution. They're practical jurists, so they also have to, they can't be purists like me necessarily, who's just writing a book. They have to ask themselves whether the doctrine is, has also been damaging. Right. Has it been harmful to the common good? These are the kinds of questions they ask when they have to overturn a long standing precedent, even if they think it was wrong as a matter of law. That's part of the reason that I like to have conversations like this and why I also in the book try to sketch out what I think are the dangers and distortions in our politics that come from this doctrine and not just try to show that it's not consistent with the way the founders thought about these things. I mean, I don't know where this will end up going, but I don't think the argument's going away. There has been a big shift in regard to New York Times vs. Sullivan in the last few years. What I mean is it was considered just settled law, not controversial. It's regarded as this kind of reverential landmark ruling. And now there's open debate about it, including from very prominent people like President Trump and Governor DeSantis of Florida, who are public leaders, but then also great jurists like Gorsuch and Thomas and others. So I hope that the debate will continue and that a case will come along where the court can reconsider this.
- [42:44]
B
This is a new book. And so I'm curious about this. My final question for you. You are a professor. You work in academia. Have you gotten any pushback from the usual suspects in journalism and in academia? How could you possibly do this? This is the First Amendment we're talking about. This is your bread and butter. What's the response been so far?
- [43:14]
A
Well, I haven't got any negative response so far, but then the book just published last week, so I expect criticisms will come in. And as you said earlier, we've seen this kind of thing before when Justice Thomas Thomas first started floating the original's critique. The people who are big defenders of the New York Times vs Sullivan Standard tend to equate criticism of it with criticism of the First Amendment and criticism. And like an attack on democracy, even they might say, if they really, really get going. My response to that would be, of course, that it's not an attack on the First Amendment. It's a debate about the scope of the First Amendment's protection for freedom of the press because everybody agrees that it doesn't permit just everything. There are some things you could publish that would undoubtedly be criminal or injurious. So it's a debate about what the proper scope should be and an attempt to get us to rethink the older standards, which I think are more wholesome and also authoritative.
- [44:11]
B
It's the crossroads of the First Amendment and reputation. It's a critical argument, I think, to have, and I'm glad we had a chance to discuss it today. And thanks to my guest today, Carson Holloway, political science professor at the University of Nebraska, Omaha. Appreciate you being here. He's also author of the new book no Liberty to the Constitutional Case Against New York Times versus Sullivan. You've been listening to another edition of the Federalist Radio Hour. I'm Matt Kittle, senior elections correspondent at the Federalist. We'll be back soon with more. Until then, stay lovers of freedom and anchor anxious for the fray.
- [44:57]
A
Voice of reason and then it faded away.