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.