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Surely, the Supreme Court of the Civil Rights era did not envision a robust and vibrant dialogue on matters of public interest to also feature Media-induced death threats and Twitter mob violence against a group of Catholic schoolchildren for attending a peaceful assembly. Yet, tucked away inside a not-oft discussed but then-hailed 1964 landmark decision, New York Times Co. v. Sullivan, you will find the bulldozers that have paved the way for a virtually unchecked Fourth Estate tyrant to deliver this exact situation, and it was decided 9-0.
This monster of a case was built on a libel suit brought by Montgomery, Alabama Police Commissioner L. B. Sullivan against The New York Times Co. over a published advertisement titled “Heed Their Rising Voices.” Sullivan claimed damages totaling half a million dollars that were affirmed by the Supreme Court of Alabama, for untruths regarding events surrounding Martin Luther King Jr.
Perhaps providentially, the Covington Catholic media spectacle happened to also coincide with the name of Dr. King — the dizzying array of social media accusations, denigrations, Press deletions and retractions, apologies and sad scrambles for any post hoc justification imaginable — all occurring throughout #MLKWeekend.
While echoing Dr. King’s doctrine of nonviolence, the New York Times ad portrayed events in a way that was arguably harmful, stating King had been arrested three more times than he had in fact been arrested and wrongly insinuating that Montgomery police, of which Sullivan oversaw, had been aggressively deployed to the Alabama State College Campus.
The United States Supreme Court went all-in for The Press, with its disciples proclaiming it an “occasion for dancing in the streets,” citing the needs of the moment over the need for truth and substance, in unpaused jubilation that The Press had been officially freed from the shackles of self-policing.
#CovCath is the story of how that idea went terribly wrong.
The court’s primary error is steeped in deprivation of context, evident in its tunnel-vision angling, which hooked onto one particular aspect of the First Amendment — freedom of The Press. The court failed to fully embrace the amendment in its opinion.
The part they forgot? The right of the people peaceably to assemble, and to petition the Government for a redress of grievances, unabridged. NYT v. Sullivan stands diametrically opposed to this portion of the First Amendment, and here is why:
The decision categorically infringes on the ability to publicly assemble and seek redress for injuries caused by a libelous press.
The condition under which an individual is forfeited any additional legal shelter granted by their State or local governments is if that person happens to be a public figure. This includes not only politicians but also everyday people who may have been abruptly thrust into the limelight, even if reluctant or by happenstance while attending a public rally — like the schoolboys from Covington Catholic.
The ruling created a special exception for The Press by raising the evidentiary threshold to either an incredibly difficult to prove standard of malice or a still judicially-ambiguous, “reckless disregard for the truth.”
Try wading into the myriad of cases that have since evolved from the deformed beast that is NYT v. Sullivan — layers upon layers of intellectual legalese tying itself into knots on the peripheral in heavily deliberated avoidance of why it can never work.
The reason we can not create a constitutional exception to shield The Press from liability to public figures is that it is The Press that inextricably ~creates public figures.
Anyone can become their next target.
The late Justice Antonin Scalia, while sitting next to Justice Ruth Ginsburg in an interview, said of the decision, “It was wrong.” He laughed jovially along with the opportunity to reveal that Ginsburg would unquestionably reaffirm the decision.
“I think George Washington, I think Thomas Jefferson, I think the Framers would have been appalled at the notion that they could be libelled with impunity, and when the Supreme Court came out with that decision, it was revising the Constitution,” Scalia said.
Our most newly-minted Justice, Brett Kavanaugh, experienced the fallout of NYT v. Sullivan firsthand. It’s sobering to consider that the salacious and fabricated Media bombs launched and planted squarely on his shoulders could potentially preclude his weighing in on the #CovCath case or similar should it ever come his way.
Although Kavanaugh has relayed to the Senate that he has great respect for precedent, he is foremost an ardent Constitutionalist, and precedent removed of constitutional context and largely defined on the wings of a past moment is easily outdated.
One thing is apparent — #CovCath is the culmination of a cacophony of seemingly unrelated events on an interwoven timeline set on a collision course with destiny. If you are perfectly fine with the free reign of The Press to poison our public discourse with lies and destroyed lives, consider the mere possibility of the call for Kavanaugh’s recusal to be the most damning and consequential example.
NYT v. Sullivan indemnifies The Press in selectively gorging on victims who will best feed its own industrial mass — with tentacles reaching all the way into the Supreme Court so that NYT v. Sullivan can reaffirm NYT v. Sullivan.
It exists to serve itself, and that, America, is a danger to us all.