Confronting A Free Press, 50 Years After NY Times v. Sullivan

Not that it’s more than a bit self-interested, but the New York Times has an editorial celebrating the 50th Anniversary of the watershed decision in New York Times v. Sullivan. It’s entitled. It was a huge win, both for the Times and for the freedom of the press, which endures today:

The ruling was revolutionary, because the court for the first time rejected virtually any attempt to squelch criticism of public officials — even if false — as antithetical to “the central meaning of the First Amendment.” Today, our understanding of freedom of the press comes in large part from the Sullivan case. Its core observations and principles remain unchallenged, even as the Internet has turned everyone into a worldwide publisher — capable of calling public officials instantly to account for their actions, and also of ruining reputations with the click of a mouse.

From the mainstream media to the wackiest person with a keyboard, the right to criticize public officials endures, much to their consternation, unless done with malice.  Since the courts haven’t been particularly cooperative in silencing those who reveal, real or imagined, government excess and malfeasance, government has used its fiat to accomplish what the court won’t.

But the government can upset the Sullivan case’s delicate balance by aggressively shutting down avenues of inquiry, as the Obama administration has done to an extreme degree in prosecuting those suspected of leaking classified documents, and even seizing reporters’ records. Uninhibited and robust criticism can go only so far without meaningful access to information.

For those, and there are many, who curse Edward Snowden, Chelsea/Bradley Manning and Julian Assange, and the curses may be well-deserved for many reasons, it is similarly indisputable that they have provided revelations about what government is doing that no one, from the guy on the street corner to members of the Senate Intelligence Committee, knew about.  We can’t debate the propriety of government excesses if we don’t know about them.

The downside for many is that those “opinions” you think are so crucial that the world must know them, whether by your publishing a blog or a Youtube video, makes you a public figure subject to criticism. If it hurts too much to bear, then you shouldn’t be screaming for people to look at you. Freedom isn’t free, you know.

Having long expressed my strong support for a robust 1st Amendment, even to the point of challenging laws against abhorrent conduct, like revenge porn, because of fears that protected conduct will be criminalized as well, this may come as a surprise. There is a constitutional line that freedom of the press cannot cross, where it must give way to a greater right.

That would be due process, the right of a criminal defendant to both procedural fairness and substantive fairness in the course of the government trying to convict.  Much as a free press is a vital component of democracy, so too is due process a vital component of a criminal justice system.  But while the former is diffused among all of us, the latter is a huge sword hanging over a single head, the consequences so devastating that the right of that one individual we call defendant takes precedence of the amorphous mass we call society.

But what of Spock’s “the needs of the many outweigh the needs of the few?”  If the needs were equivalent, that would be true, but they are not.  Indeed, if the many ruled without regard to the weight of the needs, Kim Kardashian would be on the one dollar bill. At least parts of her. But the needs of the many to know usually doesn’t equate with the need of a defendant for due process, and a direct constitutional conflict arises. One right must prevail over another. In this instance, the right of a defendant wins.

This issue was raised recently in the Jana Winter subpoena case, where the New York Court of Appeals decided that its flavor of relativity trumped the right of James Holmes, facing the death penalty, because New York was the media capital of the nation, if not the world. Let’s hear it for the entertainment industry!  A petition for certiorari has since been filed, challenging New York’s decision to put the freedom of the press ahead of the rights of a defendant.

“Our petition provides the Supreme Court  with a timely opportunity to establish that there is simply no Constitutional exemption for journalists, like all citizens, to respond to a validly issued subpoena. All who value fair trials and due process, especially in a death penalty case such as this one, should be deeply concerned by New York’s unilateral exemption of journalists from the reach of a subpoena sought in Colorado.”

Was the titillating exclusive report of Holmes’ diary, about which cops lied under oath to conceal their violation of the court’s gag order, worth the deprivation of due process to Holmes?  Some will shrug it off, since Holmes is a terrible person, obviously guilty and undeserving of the largess of our Constitution.  And indeed, that may all be true, but one thing we know as well as the need for the press to be free is that even the worst of us is entitled to the full panoply of rights our Constitution provides.

If Holmes is denied his constitutional rights, then so are we all.  And if we can give someone as horrible as Holmes the rights afforded by the Constitution, so too can we all enjoy them. This isn’t a fight for Holmes, but for us.

But what of our right to know, to have the press use confidential sources whose identities must be protected or they will clam up, and we will be left in the dark.  Sure, this time it was something as trivial to society as a shooter’s diary, but the next time could be Deep Throat and bring down a president.

That’s the nature of constitutional conflict. It’s not easy, and a painful choice must be made. We want both rights to prevail, but the conflict makes it impossible. One will fall in the face of another, and it can’t be prevented.

On the 50th Anniversary of New York Times v. Sullivan, we can applaud the protections given a free press in America, even if it’s mostly used to promote such valuable information as how housewives in New Jersey behave.  But as much as we honor the 1st Amendment, it cannot come at the expense of the others.  The rights of a criminal defendant must come first.

4 comments on “Confronting A Free Press, 50 Years After NY Times v. Sullivan

  1. R.P. (Savant)

    You say that Snowden/Manning/Assange revealed conduct “that no one… knew about.” This includes, of course, actions by our spy agencies, which was classified for a reason. Under your view, nothing done by our govt. – not even by our spy agencies (like the CIA or NSA) – should be off limits; rather it should all be fair game for self-proclaimed whistleblowers to steal and release at will, with the help of bloggers with a political agenda. What, then, is the purpose of having a spy agency? What is the purpose of keeping anything a secret, when all will rush to protect the likes of those like Snowden and Assange, who steal and publish anything they wish? Troop movements, the methods of catching terrorists, our spying on foreign govts. – let’s just let Greenwald publish it all (or let’s let him publish only what he wishes, withholding whatever he wants to withhold).

    Imagine that I am a conservative blogger. Imagine that I have an agenda against criminal defendants: I think they get “too much” due process and rights, at the expense of victims. I persuade a like-minded individual who works for the federal Public Defender to steal thousands of privileged documents and to give them to me, which I publish with a lengthy, thoughtful article about how criminal defendants are abusing the system with our federal tax dollars, with the help of their public defenders.

    Are you upset that I have done this? But you have already taken the position that everything and anything that is made classified or confidential by a government agency is ‘up for grabs’ so long as it ‘reveals’ something that “no one knew about” and could potentially reveal “abuses” (in the subjective view of the person doing the stealing). My publishing of privileged documents satisfies your standard. Or is it your position that Snowden/Manning/Assange/Greenwald are “right” only because you agree with the particular political result? If so, you can’t pretend to believe in the rule of law, and can’t be pretend to be outraged when, for example, the cops ‘bend’ the law to catch someone who is undeniably guilty. We either have the rule of law or we don’t.

    1. SHG Post author

      Bad analogy, comparing disclosure of privileged information of individuals to disclosure of government information that’s classified, like NSA seizing all metadata. People have rights. Governments do not, and their mandate stems from the will of the people. When the will of the people is thwarted by government secrecy, they have no mandate. Had this been troop movements, the substance would be entirely different than baseless seizure of all metadata, including that of the Senate Intelligence Committee to conceal perjury to that oversight committee.

      You lose.

  2. Canvasback

    R.P. might need some remedial savant training. Let me take a stab at this: It seems like he slipped off the rails in his 3rd paragraph. He doesn’t trust Snowden or Assange to recognize a Constititional argument (ppg 1) so he sets up the ” . . . so long as it ‘reveals’ something that “no one knew about” strawman and tries to turn it into a political argument.
    By definition, I guess, a whistleblower is someone who comes forward to reveal a possible violation of law or ethical standards. And the example he gives in his 2nd paragraph would qualify. Due process cuts both ways. The way he’s framed it he’s sort of arguing with himself. Ah, well, a good lawyer can take either side; but please, not in the same case.

    1. SHG Post author

      Randy’s arguments to be so scattered and replete with logical fallacies that it takes too much work to deal with them line by line. They are rarely worth the effort. But he serves to remind us how not to make a persuasive argument, and why we don’t engage in thoughtful debates with certain types of savants.

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