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- [00:07]
Carson Holloway
From the historic campus of Hillsdale College
- [00:10]
Scott Bertram
in Hillsdale, Michigan, where the good, the true and the beautiful are taught, nurtured
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Carson Holloway
and honored, this is the Radio Free
- [00:19]
Scott Bertram
Hillsdale Hour, bringing the activity and education
- [00:22]
Carson Holloway
of the college to listeners across the country. We are living in a new age technologically in which anybody can publish anything almost instantaneously, and we need to think through how to handle that because you need legislation to protect reputation. You need libel law.
- [00:38]
Scott Bertram
This is your host, Scott Bertram. Welcome to the Radio Free Hillsdale Hour, part of the Hillsdale College Podcast Network. That was Carson Holloway, author of the new book no Liberty to the Constitutional Case Against New York Times v. Sullivan. Yes, we talk in depth about libel law later on in today's program. First, we're joined by Dr. Ben Whalen. He's associate professor of English here at Hillsdale College. Also your teacher for the brand new Hillsdale College online course the Odyssey. Find more at hillsdale. Edu newcourse. Dr. Whalen, thanks for joining us.
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Dr. Ben Whalen
Oh, thanks so much for having me.
- [01:19]
Scott Bertram
Excited to talk today about the Odyssey. Every Hillsdale College student reads the Odyssey as part of the Great Books curriculum here. Why has Homer and this work remained at the foundation of a liberal arts education for now, hundreds, actually thousands of years?
- [01:41]
Dr. Ben Whalen
It's really a sort of a funny thing that the oldest work of literature we have in Western culture is also so great. It's sort of a remarkable thing. It's well known that Homer probably didn't write the story down himself, that this, it emerges from an oral culture where bards are reciting and singing songs. And it's a testament to the excellence of the story that it's been preserved. From Homer's time on, it was, in other words, it was immediately recognized as a truly great work and people wanted to hear it and they wanted to hear Homer's version of it. And so it was preserved and then eventually set down in writing and has been passed on to us. It's a story that it obviously, part of its excellence is it just has so many great narrative moments. So of course, you have things like the Cyclops and the homecoming, the fight with the suitors, the lotus eaters, these different goddesses, et cetera. But it's also excellent because it really does have philosophical reach. It's got, it gets after deeply, universally human things. And so it's, it's really excellent because it, it not only has those sort of gripping moments of a really thrilling story, but, but it, it really helps you understand what's, what's proper to a human life and in all sorts of ways. So it's. It makes sense that even those earliest Greeks would retain and retell and. And finally write down Homer's story.
- [03:22]
Scott Bertram
So we've got this major new film adaptation of the Odyssey. It's one of the reasons we have the online course out, one of the reasons we have this conversation today. Why is this a good time, too, to go back and maybe not just see the movie, but actually read Homer himself?
- [03:39]
Dr. Ben Whalen
Yeah. Well, I'm excited to see the movie, obviously. Christopher Nolan, great director, very interesting and thoughtful filmmaker. The. The book itself, though, and this. I love this about Hillsdale College that they. They wanted to produce a course on. On the book itself, because we. We can't let or we shouldn't let even a great film obscure or. Or stand between us and the book. It is. One of the things I love about the Odyssey, in particular, both the Iliad and the Odyssey, is that it's remarkably easy and accessible, despite its riches. And so I'll tell students this. We'll dive in, and we'll read a lot here. I teach it every year at Hillsdale, but. But that actually, as soon as you get into it, you're having fun. You're studying, like, very serious literature with real serious questions. But it's. But it's delightful, it's accessible. It's a joy to read. And so I'm happy Nolan has made the film, and I hope it just inspires more people to actually go and read the book, because the book also will be fun and delightful. It's not a labor to read. It's a Joy.
- [04:52]
Scott Bertram
Talking with Dr. Ben Whalen. He's your teacher for the new Hillsdale College online course, the Odyssey. Find it at hillsdale.edu newcourse. N e w C O U R S E for the Odyssey. Your lectures here in the course follow this journey or all around. Finally, at the end, back home. How does each stop along this journey reveal something new about Odysseus?
- [05:19]
Dr. Ben Whalen
Yeah, so in. In terms of overall chronology, the Odyssey essentially starts. We hear about it in the middle of the work after the fall of Troy. Odysseus has been at Troy. They've sacked the city, and Odysseus starts his journey home. And one of the really interesting things is that what you see is that Odysseus, when he leaves Troy and starts to head home, the very first thing they do is they land on the shores of another city of the Cicones, and they sack that city and they. They haul off plunder. And so you see that this immediately post Troy version of Odysseus is not actually a man who is most profoundly driven by a desire for home yet. And he's, he's not really ready for the role of king and husband and father. Instead, he's more marauder. He behaves more like a pirate than, than the king of a, of an island or, or a husband or a father. So the different stops over the course of the Odyssey in fact show a growth and an education even that the, the old grizzled veteran Odysseus needs to go through, to learn that he really does belong back in Ithaca and, and that that really is where his heart is and he has to fight to get there and he has to correct and change certain aspects of his character that were shaped by 10 years at war. And so it's, it's a, to watch that and it's, it's, it's painful in parts and it's also illuminating. Eventually Odysseus goes to the underworld. At the very center of the book, we hear about this, his, his journey to the land of the dead. And it's there that he meets his mother and she has died from heartbreak, yearning for Odysseus to return. And you see that that's one of the moments where you see Odysseus learning. I, I really have to change what I'm, what I'm doing, and I need to go home.
- [07:12]
Scott Bertram
Throughout the lectures, throughout the course, you show that Odysseus isn't just fighting monsters, but there's also confrontations with various temptations along the way too. Why are the internal battles that we learn about just as important as the external battles through the work?
- [07:30]
Dr. Ben Whalen
Yeah, like when you say the Odyssey, I think people think of a Cyclops or maybe the suitors, and those are external trials. Man versus monster, man versus versus other men. But it is true. What we see with Odysseus is that he's given multiple, in fact, I'll sort of joke with my students, multiple options of island women that he could stay with. But actually what he does is these are sort of temptations and they entail different things. So one of these goddesses offers him immortality. It's a remarkable thing and it only grows more profound as you read the work, that Odysseus turns down the offer of immortality. He chooses his wife and his home and death, all of those things together. And not only death, but also Ithaca involves difficulty and suffering. He chooses all that together because as Homer reveals to us, in fact, sort of a meaningful, noble human life. One in which happiness can be true happiness, the deepest forms of happiness can be found, also entails mortality and suffering and struggle, and that all this together makes up that which we find humanly meaningful.
- [08:49]
Scott Bertram
Dr. Ben Whalen is your teacher for the new Hillsdale online course on the Odyssey. Hillsdale. Edu New course Odysseus is famous for his cleverness, but he also matures over the course of this story. How does Homer depict that growth for the reader? What lessons should we take from it?
- [09:11]
Dr. Ben Whalen
Yeah, one of the things I think that the work is particularly rich on is it's the education of Odysseus, both in his need and desire to get home. He has to prioritize that, but also that there's a difficulty for men who become habituated to violence and force as the means of resolving problems that arise in life. And so in these 10 years at Troy, Odysseus is, he's a, he's the, he's described as the masterful tactician. He's, he's, he's brilliant and he's thoughtful, but it's entirely in terms of the sort of exercise of force to get your way to conquer a city. And I think that one of the things that Homer shows us over the. Over the course of the work is that the virtues of the warrior are not enough for the husband father king, that the husband father king does need to be able to exert force. Like Odysseus does have to actually kill these suitors when he gets home. But there's something more that's required for a truly good and virtuous man. There are these other sort of. Of domestic and more. More intellectually or peaceful, if. Or if not peaceful, more sort of properly ordered ways in which a man has to direct his life. And, and we see Odysseus grow in that over the course of the. Over the course of the work. So that finally when he does arrive home on Ithaca, for instance, he. He does not reveal himself, but instead thinks, okay, I can suffer this too, and I can. And he's very slow and very careful and thoughtful. And it's those, it's being slow and careful and thoughtful that are actually some of these virtues most necessary for a good king. A good husband, a good father.
- [11:11]
Scott Bertram
Talking with Dr. Ben Whalen, Associate professor of English at Hillsdale College, also your teacher for the new online course the Odyssey at Hillsdale. Edu New course. If you're online a bit, there's a little bit of side conversation around the release of the film about the women in the Odyssey. The course that your course highlights Penelope as much as Odysseus really what makes her one of the truly great characters in Western literature.
- [11:39]
Dr. Ben Whalen
Yeah, I have strong opinions about this actually. If you get to book 24 at the very end of the work, Odysseus has butchered all these. Guess I'm going to plot spoiler here. But he.
- [11:52]
Scott Bertram
2500 years, that's right.
- [11:55]
Dr. Ben Whalen
He butchers all these suitors who were paying court to his, his wife. And, and the, and book 24 opens with this scene where all of these suitors, souls, the shades of the, of the suitors, go down to the underworld and they're greeted by some of the great heroes from the Battle of Troy. And in this remarkable moment, Agamemnon says to these suitors, when he hears how they came to die, he, he says the gods will lift up an immortal song in praise of the glorious Penelope. This song that will never die. And that's, that's actually really what the Odyssey is. It's Homer's great song in praise of Penelope. Penelope is, she's an awesome character. She's, she's, I always stress this to my students. She is certainly beset by these different suitors. So she's sort of holding the household together and it's under assault. But she's the opposite of a. Just a helpless damsel in distress. That's not Penelope. Instead she's resourceful, she's cunning, she, she tricks the suitors. She, she, she really holds the whole kingdom together through her wit and intelligence until Odysseus returns. And it's been 20 years for heaven's sake. So yeah, I mean it's, that's no minor undertaking. She's, she's a great character and really Homer, Homer's work points towards her. Homer does not neglect her significance or Homer's work does not neglect the significance of women.
- [13:24]
Bill Gray
Really.
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Dr. Ben Whalen
The poem is much more ambivalent about Odysseus's character than Penelope's. She's the one who has this sort of virtue and consistency and excellence that you can't help but admire and think about throughout the whole work.
- [13:42]
Scott Bertram
Loyalty is one of the defining virtues in the Odyssey and of course that ties into Penelope as well. Why does Homer place so much emphasis on faithfulness inside the Odyssey?
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Dr. Ben Whalen
Yeah, that's a great question. At one point in Odysseus's journeys, he comes to the land of the lotus eaters and the land of the lotus eaters. It's this sort of strange drug like substance that makes people forget their home. And where they're from and who they, they have no desire for anything but to just sort of lie around eating lotus. And that's sort of the, in, in a certain respect, the antithesis of loyalty. So loyalty entirely, it consists of remembering who you are, who you have debts towards, who, who's been your benefactor, who you love and, and you stay true to that. And so, yes, throughout the Odyssey there's this interesting tension between say, the call of the lotus eaters, where you could just lose yourself in momentary pleasure in the day to day and forget. And that's in contrast to the man of loyalty or the woman of loyalty who remembers and recalls and lives according to that code. So Penelope is a great figure for loyalty. There's another wonderful figure, Eumaeus, this swineherd who has taken care of Odysseus, flocks on Ithaca and he's described by Homer is the soul of loyalty because he remembers, he remembers his master, he loves him and he serves him. And it's, it's, it's. It becomes very obvious to us that that sort of memory and loyalty is, is a virtue of, of great significance compared to just momentary pleasure and forgetfulness.
- [15:31]
Scott Bertram
Readers who are experiencing the Odyssey for the first time might be familiar already with some pieces. Cyclops, the Trojan Horse. There's a lot more to it than that. What are some of the overlooked moments that students tend to appreciate after reading the Odyssey?
- [15:52]
Dr. Ben Whalen
There, that's, that's a great. There's so many. I'll share one that's just a personal favorite. When Odysseus finally escapes from this island where he's been held captive for seven or eight years. He, he's sailed on a raft and then he gets shipwrecked. And so he lands on this island, the island of the Phaeacians, where Nausicaa is the princess. He lands there with, with absolutely nothing, not even a shred of clothing. He, he is, he is naked and alone, has nothing. And so he, he climbs ashore after this great storm and he sleeps under this bush. And so he's covered in leaves and twigs and he's, he's filthy. And then the next morning he wakes up and he hears these young women playing with this ball. They've done. They've been washing some clothes in the stream and they've been throwing a ball back and forth. And Odysseus hears them and he comes out of the bushes to, to see what they are and, and where he is. And Homer has this wonderful simile where he likens Odysseus to suddenly this, this lion about to come and prey on this, this well defended homestead with these rich flocks. And I like to pause there with my students and encourage them to think about like, what does it mean that Odysseus, naked, without a weapon, without a tool, in a strange land, he's got nothing. And yet in this simile, Homer likens him to a predator, you know, rather than, rather than the suppliant, the beggar. Yeah, he's, that's how, how dangerous he is, how forceful, how resourceful. Odys. So you get these wonderful little moments where this is another thing that Homer is so wonderful in, is his similes. So you have on the level of the story just this action going along, but then Homer will liken it to something and that shows you a whole different angle, a whole different way of seeing the character or the situation.
- [17:53]
Scott Bertram
Is there a particular one of these lectures inside the DO online course the Odyssey that you're excited for students to experience?
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Dr. Ben Whalen
That's, yeah, the, I mean I'm excited for students to think about what Odysseus goes through when he goes to the land of the dead. It's actually a katabasis is the, the phrase, they're the term that refers to the great hero's journey to and return from the land of the dead. It's actually a sort of, in a certain sense and I'm, I'm not trying to Christianize this, but there's, there's a way in which in fact early Christians would even read these stories and see that there's a sort of resurrection motif or the, the greatest of heroes, your Hercules or your Odysseus, they, they travel to the land of the dead and then they return with, with some sort of profoundly deepened knowledge or understanding or it's the mark of the greatest heroes. And so what's interesting though is when Hercules does that, it's, it's simply because one of his feats and he's, he's the archetypal hero. When Odysseus does it though, it's about reordering the very desires of the human heart. And, and, and so it's, it's intellectual, it has to do with one's loves and with one's self understanding. And so I'm excited for students to, to get to that, to see Odysseus confront Achilles and Agamemnon in the land of the dead, to meet his mother and then, and then to realize really in part through that where he belongs and how he should conduct his life.
- [19:30]
Scott Bertram
Dr. Ben Whalen is associate professor of English here at Hillsdale College and he's your teacher for the new Hillsdale College online course, the Odyssey. Hillsdale. Edu Newcourse. N E W C O U the odyssey, available now. Dr. Whelan, thanks so much for joining us here on the Radio Free Hillsdale Hour.
- [19:54]
Dr. Ben Whalen
Thank you very much, Scott.
- [19:55]
Scott Bertram
Up next, Carson Holloway is with us. We'll talk about his new book, no Liberty to Libel. I'm Scott Bertram. This is the Radio Free Hillsdale Hour.
- [20:17]
Narrator
Every American knows that we won our independence. Far fewer understand what it actually took. Revolutionary America, a feature length documentary from Hillsdale College tells that story the way it deserves to be told. For 150 years, the American colonists built something the world had never seen, a people who governed themselves. When Britain tried to take that away, the founders risked everything. Their lives, their fortunes, their sacred honor. Against all odds, they won. Revolutionary America is a feature length documentary produced by Hillsdale College, featuring expert scholars, historical documents, stunning cinematography, geography. It's verified hot on Rotten Tomatoes and it's free. Hillsdale College put revolutionary America on YouTube because the truth about the greatest political achievement in human history belongs to every American. No subscription, no cost, just the story of how we became free. Find Revolutionary America now on hills Hillsdale College's YouTube channel.
- [21:38]
Bill Gray
Hello, this is Bill Gray, Vice president of Institutional advancement here at Hillsdale College. Before you skip ahead, I just wanted to give you two things, a message and request. Here's the message. Thank you. Thanks to listeners like you, faithful, loyal listeners of the Hillsdale College Podcast Network. We achieved our fiscal year end fundraising goal, which means that we'll be able to keep offering amazing podcasts like these in Primus online courses and so much more. So that's the first thing, my message. Thank you. The second is a request. And you might think, oh, here he goes, he's going to ask for money. But no, my request to you, loyal listener, is that you keep learning, that you keep sharing the word about the Hillsdale College Podcast Network in Primus Online courses and all of Hillsdale's other educational content. The more people learn, the more equipped they are to defend liberty. Thank you again. And now back to the show.
- [22:40]
Scott Bertram
Welcome back to the Radio Free Hillsdale Hour. I'm Scott Bertram. Be sure to find more great Hillsdale College audio on the Hillsdale College Podcast Network. You can find it all at Podcast Hillsdale. Edu, older editions of this show, plus more from the Larry Arn Show Imprimis and the Hillsdale College Online Courses Podcast wherever you get your audio. We're joined by Carson Holloway. He's Department Chair and Professor of Political Science at the University of Nebraska, Omaha, and a Washington Fellow in the Claremont Institute center for the American Way of Life. His brand new book is no Liberty to the Constitutional Case Against New York Times v. Sullivan. Carson, thanks so much for joining us.
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Carson Holloway
Thank you for having me, Scott. I really appreciate it.
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Scott Bertram
I have to say I enjoyed the typeface on the book which makes it look like it's New York Times typeface. I'm sure that was somewhat intentional. Yes, yes.
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Carson Holloway
I think they did a great job. Encounter Books did an excellent job with the look of the book.
- [23:41]
Scott Bertram
Very good. All right, so look, there's a subset of Americans who likely have no idea what we're about to talk about, which is libel law. New York Times v. Sullivan. Take us inside why New York Times v. Sullivan matters, why it's an important First Amendment case. And then after that, we'll get into why you think it's wrong.
- [24:00]
Carson Holloway
Okay, that sounds great. The New York Times vs Sullivan is considered by practically everybody to be one of the great landmark First Amendment freedom of the press rulings of modern times. It was decided by the Supreme Court in 1964. The Warren Court, Justice William Brennan, one of the very consequential justices, a liberal justice, wrote the opinion for the Court in that case. And the opinion's important, or the ruling is important, because it changed the libel standards that the country has for public officials. And then later the Court extended the new standards to public figures as well as public officials. Libel, of course, is when people sue for defamation, for the publication of false information that damages their character. And the Court decided in New York Times versus Sullivan that libel cases involving public officials and then, as they say later on, public figures raise a First Amendment problem. They create a problem in relation to the freedom of the press that the First Amendment is supposed to protect. So seeing that problem in the Court's mind, the justice's mind in 1964, they came up with a solution for that problem. And that solution is called the actual malice test or the actual malice standard. What the Court said in the Sullivan opinion was that are a public official and you sue to protect your reputation in a libel suit, you will have to show not only that the publication about you was false and defamatory or injurious to your reputation, you'll also that's what ordinary people would have to show. Right? You're going to have to show something else in addition to that, which is that the publication was made with Actual malice. And that's a technical term that the court devised to mean the following. Either the publisher knew that it was false or or they published with reckless disregard for the truth or falsity of the report. So I would say the significance of New York Times versus Sullivan is that it sets up under the allegation that the First Amendment requires this. It sets up a two tiered libel system in which ordinary people basically have to show that they were defamed by a false report and public officials have to show that plus this actual malice. Right. And one other thing I'd like to say about that, just by way of clarifying what it means in practice, and the court was very clear in subsequent cases in which it elaborated on the doctrine that actual malice is something far more extreme and far worse than ordinary negligence. Basically what it means is it gives the press running room to be negligent with the reputations of public officials and public figures because they're going to have to show something worse than negligence. They'll have to show again actual malice. And in practice it turns out to be very hard to meet that standard. And which is why there are not very many successful libel suits brought by public figures in the kind of Sullivan era.
- [26:53]
Scott Bertram
Come back to that question about reputation a little bit later on in the conversation. Americans today, I would guess a good number of them assume that freedom of the press means that there is broad protection, even for false statements about public officials. Is that how the Founders understood freedom of the press?
- [27:11]
Carson Holloway
No, I think we are laboring under a delusion that's been created by the Supreme Court. The founders of did value freedom of the press very highly, including a kind of wide ranging and brawling culture in which you're going to be criticized if you're a public official for sure. But they did not think about it in the same way that the Court did in New York Times versus Sullivan. My book is an originalist argument. So I'm basically saying the courts departed from the original understanding of the freedom of the press that's embodied in the First Amendment and in the broader public and legal culture of the Founding. You know, there were protections for freedom of the press in many of the state constitutions. It's not just a federal issue. So let me go back a moment to what I said about the Sullivan Court. When I said they saw a problem. They saw that a libel suit involving a public official is impinging on freedom of the press. See, I think that's the first error. The Founders did not look at it that way. Their view was simpler. It was derived from what they learned from Blackstone's Commentaries on the Laws of England. And it's based upon the kind of classical moral distinction between liberty and license or licentiousness. I think the Founders believed that libel, in the sense of defamatory, false publication about somebody is simply outside the scope of the freedom of the press. It's something that's not protected. And in fact, there's a long tradition in the Supreme Court and American courts prior to New York Times vs. Sullivan, in which the justices or judges would say, kind of transmitting that tradition, that, yeah, libel is one of the forms of unprotected speech, along with obscenity and fighting words and things like that. It's not kind of expression that was intended to be protected by the freedom of the press. It's an abuse of the freedom of the press, or it's an act of licentiousness that is outside the lines, so to speak. So the Founders would not have thought that this kind of suit raised the kind of problem that the New York Times Court thought that it did. And the other part of my argument would be that there's nothing like the idea of actual malice in the thought of the Founders not seeing this problem. They don't devise this solution. There is some ways in which they would say that the standards are different in a libel case for public officials versus ordinary people. And I can talk more about that if you want me to explain that. But suffice it to say, in relation to what the Court did in the Sullivan decision, there's nothing like the actual malice doctrine at the time of the Founding. They don't think that a certain class of people have to prove something extra in order to prevail on a libel suit.
- [29:46]
Scott Bertram
Let's talk about some guys with Carson Holloway, the author of the new book no Liberty to Libel. James Wilson, James Kent, Joseph Story, these legal commenters of the early republic. Did any of these thinkers from the early republic anticipate this more modern argument that public figures, or just some figures should receive less protection than from libel than private citizens?
- [30:10]
Carson Holloway
Right. Yeah, they don't anticipate that. And let me explain, using them, what I was hinting at just a moment ago. They do. They're building on Blackstone, who I mentioned before. These are Americans of the early republic who are great jurists and great legal commentators, wrote big, massive learned treatises on American law. They do anticipate the idea that the standards would be different for a public official versus a private person in the case of the truth. Defense for a libel. Now let me explain the background to that just a little bit. Blackstone, the great English legal commentator, made clear that according to the common law, a criminal libel could even be a true statement, because he said, the criminal libel laws of the English common law are looking to prevent breaches of the peace more than they are looking to protect reputation. And since a humiliating publication about somebody that happens to be true might provoke them to violence, you could be punished for a true publication under the English common law. The founders liberalized that and come up with a more permissive and they thought a more reasonable standard, which was that there ought to be a truth defense in a criminal libel proceeding. Alexander Hamilton in the famous case People vs Croswell, New York case from around 1803, 1804, maybe Hamilton said the truth defense should be understood as you can defend yourself against a charge of libel if what you published was true and published with good motives and for justifiable ends. Now that tells you that they understood the truth defense as being qualified. If you publish something true about somebody out of pure desire just to hurt them or to humiliate them in front of the public, you might still be liable for libel, so to speak. So where they're anticipating a different standard for public and private people is that they basically all say, especially Kent, that there should be much more running room for a truth defense if you're dealing with a public official. Right. Because the people have a right and a need to know about that person's character. So if what's published is true and actually relevant to your reputation, we're going to give you more room to make that defense. But they all talk as if the publication is false and defamatory. Then if you're the defendant, you lose already. Right? They're all pretty close to what you might call strict liability for false defamatory statements. So there's nothing in them to anticipate what the Sullivan Court is doing, which is creating a kind of protection even for publications that are admittedly false and that are damaging to reputation.
- [32:54]
Scott Bertram
That's Carson Holloway. His book is no Liberty to Libel. We'll continue with him in just a moment. First, I want to make sure you're aware there's a brand new episode of the Larry Arn show available now, talking about leadership, talking about being a Navy SEAL. Leif Babin is Dr. Arn's guest. He's a former U.S. navy SEAL officer, co author of the New York Times bestseller Extreme How U.S. navy SEALs Lead and Win, and co founder of Echelon front. They'll talk about the lessons that he learned about leadership from his time in the Middle east, what real ownership, humility and command under pressure looks like from someone who's learned the lessons the hard way and the challenges and threats America's military faces today. Dr. Arn asks the questions. Leif Baben provides the answers. The brand new episode of the Larry Arn show is available now. Find it at YouTube for the full video version. You can also find the audio version wherever you get your audio, including podcast hillsdale.edu. check out the brand new Larry Arn Show. We continue with Carson Holloway. His new book no Liberty to the Constitutional Case Against New York Times v. Sullivan Libel Law here in the U.S. carson, chapter four begins this look at the case itself. New York Times v. Sullivan in the Brennan majority opinion, which relied on discussions around the sedition act of 1798. And you argue that this use is. I think it's opportunistic and unconvincing, meaning that it's sort of using originalist language when the opinion of Brennan is not originalist in any real way. Is that about right?
- [34:44]
Carson Holloway
That's right. Like I said, I'm making an original critique of Brennan's opinion, especially what the court did in the Sullivan case. He does have a kind of originalist window dressing, I would say, in his appeal to the Sedition act controversy, which you just mentioned, and which takes up a few paragraphs in the opinion. And if you want to argue for a very permissive or libertarian approach to freedom of the press and freedom of speech, you can get some mileage out of great American founders like Thomas Jefferson and James Madison, who were opponents of the sedition act of 1798. But I think that that's not a convincing argument. So let me try to explain that here. Basically, what Brennan does is to show that the Sedition act included a truth defense along the lines of what we were talking about before. Nevertheless, it was assailed as unconstitutional by great men like Madison and Jefferson. So Brennan concludes from that, and also we should say that the Sedition act was kind of, as Brennan points out, repudiated by the country. The Jeffersonians won overwhelmingly in 1800, and the Federalists took a real beating, and the country seemed to come around to the view that the Sedition act was not constitutional. The lesson that Brennan wants to derive from this is that there is evidence at the time of the Founding that even false statements that are defamatory are protected by the First Amendment. I find this unconvincing because, frankly, Madison and Jefferson are arguing in the sedition act controversy that Congress has no power at all over the press because there's no enumerated power in the first place. And then they think that's confirmed by the First Amendment's protection of freedom of the press. When people would say to them in the context of that controversy, wouldn't it be terrible if public men had no way to vindicate their reputation? Their response is, well, they can sue in the states, they can sue in state court where they can bring a libel suit. So I think that the use of the sedition and a controversy by the Brennan opinion in the Sullivan case is opportunistic and unconvincing because it's really proving something that the Sullivan court doesn't even affirm, namely that there is no power at all in the federal government over the press. That's not really a position that many people would defend these days. And in any case, it's not a position that has to do with the meaning of the constitutional concept freedom of the press. You really can't find Madison or Jefferson saying that public officials would have to demonstrate actual malice, say, to prove their case in a state libel proceeding. And in fact, they try to reassure people in various places, including in one of Jefferson's inaugural addresses, that it's perfectly legitimate for public officials to have recourse to libel law to vindicate their reputations. In that inaugural address, Jefferson kind of makes a show of saying, I didn't sue anybody because I've got better things to do. The administration has a lot of work to do. But he says that's not to denigrate the purpose of libel law implicitly, even for public officials.
- [37:51]
Scott Bertram
Carson Holloway with us, his book no Liberty to Libel. There's a chapter in which you go over a number of cases, some including Teddy Roosevelt, these cases through the 1900s, including. Were courts generally capable of protecting vigorous public debate before this actual malice standard before New York Times E. Sullivan?
- [38:14]
Carson Holloway
I think so. Now, this is one of the big arguments about what would be the consequences of going back on New York Times versus Sullivan. A lot of the arguments that I find that are made are consequentialist in their character. I think it's very hard to be an originalist and think that the Sullivan opinion is correct, But a lot of people have worries about abuse of libel law to silence people and stop them from criticizing the government or criticizing public officials. That's understandable. I mean, I think, as someone who's fairly conversant with American political history, that our history shows that our public discourse has been pretty candid and powerful and even brawling a lot of the time, even in the old days when a public official or a public figure could bring a libel suit under the old standards. Interesting remark on this, by the way, is by one of the great jurists of the period you were mentioning, William Howard Taft, who of course later went on to be President of the United States and chief justice. I'm talking about a period in his life where he was a federal judge and he heard a libel case involving a public figure, we might say a candidate for the House of Representatives. And some of these arguments that the court relied on in New York Times versus Sullivan were brought up, or versions of them were brought up by the newspaper trying to defend itself. Basically, Taft, this is in the late 19th century, batted those away and said, well, the standard really is that if it's false and defamatory, you're going to have to answer for it. And then he talked about this concern that to use a term that gets used much later on, that there would be a chilling effect on properly protected speech by this danger of libel. Taft just says, and it's based on his observation at the time, he goes, nobody who knows the politics of Great Britain or the United States would think that the press is unduly hindered in its commentary on what public officials are doing. So, I mean, I take him as a serious observer of the scene. And yeah, I think that you did have a robust public discourse, even though there was a danger of libel suits. One other thing to remember on that, by the way, is that it ought to be possible ordinarily to have a very forceful discourse about public issues without defaming somebody's character. Sometimes it's necessary to do if someone really is guilty of wrongdoing and therefore disqualifies themselves for public office. But I think one of the problems with the culture that's created by the Sullivan standard is that it permits so much running room for attacks on reputation that it distracts us from what we really ought to be concerned with, which is debates about public issues and what policies to pursue rather than often unconfirmed reports about alleged wrongdoing by public officials.
- [41:07]
Scott Bertram
Carson A couple of things I picked up while reading no Liberty to Libel. There seems to be this underlying argument at times that reversing New York Times v. Sullivan is also additionally a benefit, a way to fix our media, right? There's so many people don't trust the media overturning New York Times C. Sullivan. Does that have the ancillary benefit of perhaps improving Media's standing among Americans.
- [41:36]
Carson Holloway
I hope so. Again, the core of my argument is kind of a principled, legalistic or constitutionalist originalist argument. I think one of the key benefits, therefore, of reversing New York Times vs. Sullivan would be simply returning to the country to the correct understanding of the First Amendment. Another benefit would be creating better protection for reputation, which the founders did think is a very important right, just as important as property or personal security. It's a natural right, I think, in their thinking. But there is this other problem, which is, as I mentioned in the book, trust in the media is at a very low point. I don't know if it's at an all time low, but it's not great. The publisher of the New York Times gave a speech about this a couple of weeks ago and he even admitted this and kind of blamed it on President Trump for his attacks on the media. But I think it's more plausible that the media's reputation's at a low point because they report a lot of hysterical charges that are designed to damage the reputations of certain public officials that don't always pan out and don't turn out to be true. So they generally revere the ruling because they think it's essential to their work. But I would counsel them to reflect on the fact that the way they're doing their work undermines the public's confidence in them. And so it might be better if there were a legal standard that were more strict to hold them to be more careful about the reputations of the people on whom they're reporting, more careful of the truth generally. I mean, I would say one more thing about that, though, since I mentioned the expression truth. Even if you were to reverse New York Times versus Sullivan, there would still be a lot of room for media to make mistakes and even to publish things that turn out to be not true. Because libel is not an action against any untrue statement. It's an action against one that's damaging to an individual's reputation. So even if you had the older standards, there could still be a lot of fake news. But I think having the older standards would nevertheless encourage a greater respect for truth in relation to the reputations of leading public figures and public officials, which would help our public discourse. And this is, by the way, the way a lot of the early jurists talked about it. And I go over this in the book, you'll find the early Republic judges saying things like, well, the public has an interest in knowing only the truth about the people they entrust with public authority. So they think that the standard is helpful to keeping the public discourse the way it should be.
- [44:08]
Scott Bertram
Carson, you write in no Liberty to Libel that reputation is a right as precious as any other. The public has a vital interest in receiving true info about public figures. I know it's an originalist argument, but in this social media age, when false claims can rattle around all that more quickly, does the argument against Sullivan then become even stronger when it comes to reputation?
- [44:34]
Carson Holloway
Yeah, I think so. We are living in a new age technologically in which anybody can publish anything almost instantaneously, and we need to think through how to handle that. And even correcting our constitutional interpretation won't solve all of our problems because you need legislation to protect reputation. You need libel law. And it may be that things need to be treated differently depending upon how they're published or what kind of platform is used. But it's an old principle, I think, of defamation, that slander is spoken defamation, libel is published defamation. And the traditional approach was to treat slander as less serious because less damaging. If you publish something, you're basically telling it to the whole world in principle. But if you simply say something, the reach of that may not be as great. So the sense was that the threat to reputation and the damage is worse in a libel case. But now we live in a situation in which practically anybody can publish their thoughts immediately and kind of individualistically through these social media platforms. So there's just a lot more publication going on. And it might require some thinking that I admit I haven't done yet to figure out how to regulate those kinds of things and maybe treat them differently from what other more formalized publication is doing. But the underlying principle we would get from the founders would certainly be that there has to be accountability for people's right to publish and to speak, because you can't use those precious rights in such a way as to damage the rights of other people, namely their right to reputation.
- [46:11]
Scott Bertram
Carson Holloway is a department chair and professor of Political science at the University of Nebraska, Omaha, and a Washington Fellow in the Claremont Institute's center for the American Way of Life. His brand new book is no Liberty to the Constitutional Case Against New York Times v. Sullivan. Carson, thanks so much for joining us here on the Radio Free Hillsdale Hour.
- [46:33]
Carson Holloway
Thank you for having me. I appreciate it.
- [46:34]
Scott Bertram
That will wrap up this edition of the Radio Free Hillsdale Hour. Our thanks to Dr. Ben Whalen from here at Hillsdale College, your teacher for the new online course the Odyssey. Find it now at Hillsdale. Edu New course Hillsdale. Edu Newcourse and Carson Holloway. His book is no Liberty to Libel. Remember, you can hear new episodes every week on this station. You also can find extended versions of some of our interviews or listen anytime to the podcast. Find it at Podcast Hillsdale. Edu or wherever you get your audio. Until next week, I'm Scott Bertram, and this has been the Radio Free Hillsdale Hour.
- [47:18]
Dr. Ben Whalen
Sam.