Keith Olbermann is a quite amazing critic of Mr. Bush's War in Iraq, for his forthrightness and clarity of hard-hitting expression. In most other countries he'd be locked up for challenging the monarch. Not here. He's got something called the First Amendment covering his back. The troops fighting for something I know not what in Iraq because they're really fighting for America are fighting for Freedom of Mind, which is what our Constitution and Bill of Rights guarantee. The minds of our citizens are protected with the lives of our troops and we do them a disservice when we don't express ourselves freely and fully as best we are able.
Sullivan protects vigorous public debate on public issues, no matter how extreme or intemperate the language or the lack of truth content, with the only caveats being that the expression not defame the target public political figure on purpose or by refusing to check. This is called "malice in the NYT v. Sullivan sense," meaning intentionally or recklessly false. Ordinary negligence in publishing falsehoods about public figures are protected to avoid setting up accidental-or-careless-falsehood traps.
Here's the great quote from Sullivan, excerpted more fully below (all highlighting is added for emphasis):
Here's the theory of free public-issue speech, from the NYT v. Sullivan opinion, by Justice William Brennan, a champion of Freedom of the Mind. He deserves remembrance in your prayers:
The general proposition that freedom of expression upon public
questions is secured by the First Amendment has long been settled by
our decisions. The constitutional safeguard, we have said, "was
fashioned to assure unfettered interchange of ideas for the bringing
about of political and social changes desired by the people." Roth v.
United States, 354
U.S. 476, 484
. "The maintenance of the opportunity for free political discussion
to the end that government may be responsive to the will of the people
and that changes may be obtained by lawful means, an opportunity
essential to the security of the Republic, is a fundamental principle
of our constitutional system." Stromberg v. California, 283
U.S. 359, 369
. "[I]t is a prized American privilege to speak one's mind,
although not always with perfect good taste, on all public
institutions," Bridges v. California, 314
U.S. 252, 270
, and this opportunity is to be afforded for "vigorous advocacy" no less than "abstract discussion." N. A. A. C. P. v. Button,
371
U.S. 415, 429
.
[376
U.S. 254, 270]
The First Amendment, said Judge Learned Hand, "presupposes that
right conclusions are more likely to be gathered out of a multitude of
tongues, than through any kind of authoritative selection. To many this
is, and always will be, folly; but we have staked upon it our all."
United States v. Associated Press, 52 F. Supp. 362, 372 (D.C. S. D. N.
Y. 1943). Mr. Justice Brandeis, in his concurring opinion in Whitney v.
California, 274
U.S. 357, 375
-376, gave the principle its classic formulation:
"Those who won our independence believed . . . that public
discussion is a political duty; and that this should be a fundamental
principle of the American government.
They recognized the risks to
which all human institutions are subject.
But they knew that order
cannot be secured merely through fear of punishment for its infraction;
that it is hazardous to discourage thought, hope and imagination; that
fear breeds repression; that repression breeds hate; that hate menaces
stable government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies; and that the
fitting remedy for evil counsels is good ones.
Believing in the power
of reason as applied through public discussion, they eschewed silence
coerced by law - the argument of force in its worst form.
Recognizing
the occasional tyrannies of governing majorities, they amended the
Constitution so that free speech and assembly should be guaranteed."
Thus we consider this case against the background of a
profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open, and that it may
well include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials.
See Terminiello v. Chicago,
337
U.S. 1, 4
; De Jonge v. Oregon,
299
U.S. 353
,
[376
U.S. 254, 271]
365.
[Note: It is said that the above statement declaring that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials (and later, public figures who are not government officials), is among the most frequently cited ideas in First Amendment law brief-writing. It is used to remind judges that we protect the core of our freedoms by protecting the fringe when judging the speech of the least popular among us. If we can protect them, we can protect us. If we don't protect them, we are lost. This is why Nazis are suffered to march in Skokie. It's a test of what we really believe in, freedom of expression, not whether we admire the message. It's why we neither ban nor ban books in public libraries and don't fail to teach evolution in public school when religious fundamentalists insist that supernatural causes should be taught in science class.]
The present advertisement, as an expression of grievance
and protest on one of the major public issues of our time, would seem
clearly to qualify for the constitutional protection. The question is
whether it forfeits that protection by the falsity of some of its
factual statements and by its alleged defamation of respondent.
Authoritative interpretations of the First Amendment guarantees
have consistently refused to recognize an exception for any test of
truth - whether administered by judges, juries, or administrative
officials - and especially one that puts the burden of proving truth on
the speaker. Cf. Speiser v. Randall, 357
U.S. 513, 525
-526. The constitutional protection does not turn upon "the truth,
popularity, or social utility of the ideas and beliefs which are
offered." N. A. A. C. P. v. Button, 371
U.S. 415, 445
. As Madison said, "Some degree of abuse is inseparable from the
proper use of every thing; and in no instance is this more true than in
that of the press." 4 Elliot's Debates on the Federal Constitution
(1876), p. 571. In Cantwell v. Connecticut, 310
U.S. 296, 310
, the Court declared:
"In the realm of religious faith, and in that of political
belief, sharp differences arise. In both fields the tenets of one man
may seem the rankest error to his neighbor. To persuade others to his
own point of view, the pleader, as we know, at times, resorts to
exaggeration, to vilification of men who have been, or are, prominent
in church or state, and even to false statement. But the people of this
nation have ordained in the light of history, that, in spite of the
probability of excesses and abuses, these liberties are, in the long
view, essential to enlightened opinion and right conduct on the part of
the citizens of a democracy."
That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression
[376
U.S. 254, 272]
are to have the "breathing space" that they "need . . . to survive," N. A. A. C. P. v. Button,
371
U.S. 415, 433
, was also recognized by the Court of Appeals for the District of
Columbia Circuit in Sweeney v. Patterson, 76 U.S. App. D.C. 23, 24, 128
F.2d 457, 458 (1942), cert. denied, 317
U.S. 678
. Judge Edgerton spoke for a unanimous court which affirmed the
dismissal of a Congressman's libel suit based upon a newspaper article
charging him with anti-Semitism in opposing a judicial appointment. He
said:
"Cases which impose liability for erroneous reports of the
political conduct of officials reflect the obsolete doctrine that the
governed must not criticize their governors. . . . The interest of the
public here outweighs the interest of appellant or any other
individual. The protection of the public requires not merely
discussion, but information. Political conduct and views which some
respectable people approve, and others condemn, are constantly imputed
to Congressmen. Errors of fact, particularly in regard to a man's
mental states and processes, are inevitable. . . . Whatever is added to
the field of libel is taken from the field of free debate."
13
Injury to official reputation affords no more warrant for
repressing speech that would otherwise be free than does factual error.
Where judicial officers are involved, this Court has held that concern
for the dignity and
[376
U.S. 254, 273]
reputation of the courts does not justify the punishment as
criminal contempt of criticism of the judge or his decision. Bridges v.
California, 314
U.S. 252
. This is true even though the utterance contains "half-truths" and "misinformation." Pennekamp v. Florida,
328
U.S. 331, 342
, 343, n. 5, 345. Such repression can be justified, if at all, only
by a clear and present danger of the obstruction of justice. See also
Craig v. Harney, 331
U.S. 367
; Wood v. Georgia,
370
U.S. 375
. If judges are to be treated as "men of fortitude, able to thrive in a hardy climate," Craig v. Harney, supra,
331
U.S., at 376
, surely the same must be true of other government officials, such as elected city commissioners.
14
Criticism of their official conduct does not lose its
constitutional protection merely because it is effective criticism and
hence diminishes their official reputations.
If neither factual error nor defamatory content suffices to remove
the constitutional shield from criticism of official conduct, the
combination of the two elements is no less inadequate. This is the
lesson to be drawn from the great controversy over the Sedition Act of
1798, 1 Stat. 596, which first crystallized a national awareness of the
central meaning of the First Amendment. See Levy, Legacy of Suppression
(1960), at 258 et seq.; Smith, Freedom's Fetters (1956), at 426, 431,
and passim. That statute made it a crime, punishable by a $5,000 fine
and five years in prison, "if any person shall write, print, utter or
publish . . . any false, scandalous and malicious
[376
U.S. 254, 274]
writing or writings against the government of the United
States, or either house of the Congress. . ., or the President . . .,
with intent to defame . . . or to bring them, or either of them, into
contempt or disrepute; or to excite against them, or either or any of
them, the hatred of the good people of the United States." The Act
allowed the defendant the defense of truth, and provided that the jury
were to be judges both of the law and the facts. Despite these
qualifications, the Act was vigorously condemned as unconstitutional in
an attack joined in by Jefferson and Madison. In the famous Virginia
Resolutions of 1798, the General Assembly of Virginia resolved that it
"doth particularly protest against the palpable and alarming
infractions of the Constitution, in the two late cases of the `Alien
and Sedition Acts,' passed at the last session of Congress . . . . [The
Sedition Act] exercises . . . a power not delegated by the
Constitution, but, on the contrary, expressly and positively forbidden
by one of the amendments thereto - a power which, more than any other,
ought to produce universal alarm, because it is levelled against the
right of freely examining public characters and measures, and of free
communication among the people thereon, which has ever been justly
deemed the only effectual guardian of every other right." 4 Elliot's
Debates, supra, pp. 553-554.
Madison prepared the Report in support of the protest. His
premise was that the Constitution created a form of government under
which "The people, not the government, possess the absolute
sovereignty." The structure of the government dispersed power in
reflection of the people's distrust of concentrated power, and of power
itself at all levels. This form of government was "altogether
different" from the British form, under which the Crown was sovereign
and the people were subjects. "Is
[376
U.S. 254, 275]
it not natural and necessary, under such different
circumstances," he asked, "that a different degree of freedom in the
use of the press should be contemplated?" Id., pp. 569-570. Earlier, in
a debate in the House of Representatives, Madison had said: "If we
advert to the nature of Republican Government, we shall find that the
censorial power is in the people over the Government, and not in the
Government over the people." 4 Annals of Congress, p. 934 (1794). Of
the exercise of that power by the press, his Report said: "In every
state, probably, in the Union, the press has exerted a freedom in
canvassing the merits and measures of public men, of every description,
which has not been confined to the strict limits of the common law. On
this footing the freedom of the press has stood; on this foundation it
yet stands . . . ." 4 Elliot's Debates, supra, p. 570. The right of
free public discussion of the stewardship of public officials was thus,
in Madison's view, a fundamental principle of the American form of
government.
15
[376
U.S. 254, 276]
Although the Sedition Act was never tested in this Court,
16
the attack upon its validity has carried the day in the court of
history. Fines levied in its prosecution were repaid by Act of Congress
on the ground that it was unconstitutional. See, e. g., Act of July 4,
1840, c. 45, 6 Stat. 802, accompanied by H. R. Rep. No. 86, 26th Cong.,
1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836,
assumed that its invalidity was a matter "which no one now doubts."
Report with Senate bill No. 122, 24th Cong., 1st Sess., p. 3.
Jefferson, as President, pardoned those who had been convicted and
sentenced under the Act and remitted their fines, stating: "I
discharged every person under punishment or prosecution under the
sedition law, because I considered, and now consider, that law to be a
nullity, as absolute and as palpable as if Congress had ordered us to
fall down and worship a golden image." Letter to Mrs. Adams, July 22,
1804, 4 Jefferson's Works (Washington ed.), pp. 555, 556. The
invalidity of the Act has also been assumed by Justices of this Court.
See Holmes, J., dissenting and joined by Brandeis, J., in Abrams v.
United States, 250
U.S. 616, 630
; Jackson, J., dissenting in Beauharnais v. Illinois,
343
U.S. 250, 288
-289; Douglas, The Right of the People (1958), p. 47. See also
Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp.
899-900; Chafee, Free Speech in the United States (1942), pp. 27-28.
These views reflect a broad consensus that the Act, because of the
restraint it imposed upon criticism of government and public officials,
was inconsistent with the First Amendment.
There is no force in respondent's argument that the
constitutional limitations implicit in the history of the Sedition Act
apply only to Congress and not to the States. It is true that the First
Amendment was originally addressed only to action by the Federal
Government, and
[376
U.S. 254, 277]
that Jefferson, for one, while denying the power of Congress
"to controul the freedom of the press," recognized such a power in the
States. See the 1804 Letter to Abigail Adams quoted in Dennis v. United
States, 341
U.S. 494, 522
, n. 4 (concurring opinion). But this distinction was eliminated
with the adoption of the Fourteenth Amendment and the application to
the States of the First Amendment's restrictions. See, e. g., Gitlow v.
New York, 268
U.S. 652, 666
; Schneider v. State,
308
U.S. 147, 160
; Bridges v. California,
314
U.S. 252, 268
; Edwards v. South Carolina,
372
U.S. 229, 235
.
What a State may not constitutionally bring about by means of a
criminal statute is likewise beyond the reach of its civil law of
libel.
17
The fear of damage awards under a rule such as that invoked by the
Alabama courts here may be markedly more inhibiting than the fear of
prosecution under a criminal statute. See City of Chicago v. Tribune
Co., 307 Ill. 595, 607, 139 N. E. 86, 90 (1923). Alabama, for example,
has a criminal libel law which subjects to prosecution "any person who
speaks, writes, or prints of and concerning another any accusation
falsely and maliciously importing the commission by such person of a
felony, or any other indictable offense involving moral turpitude," and
which allows as punishment upon conviction a fine not exceeding $500
and a prison sentence of six months. Alabama Code, Tit. 14, 350.
Presumably a person charged with violation of this statute enjoys
ordinary criminal-law safeguards such as the requirements of an
indictment and of proof beyond a reasonable doubt. These safeguards are
not available to the defendant in a civil action. The judgment awarded
in this case - without the need for any proof of actual pecuniary loss
- was one thousand times greater than the maximum fine provided by the
Alabama criminal statute, and one hundred times greater than that
provided by the Sedition Act.
[376
U.S. 254, 278]
And since there is no double-jeopardy limitation applicable to
civil lawsuits, this is not the only judgment that may be awarded
against petitioners for the same publication.
18
Whether or not a newspaper can survive a succession of such
judgments, the pall of fear and timidity imposed upon those who would
give voice to public criticism is an atmosphere in which the First
Amendment freedoms cannot survive. Plainly the Alabama law of civil
libel is "a form of regulation that creates hazards to protected
freedoms markedly greater than those that attend reliance upon the
criminal law." Bantam Books, Inc., v. Sullivan, 372
U.S. 58, 70
.
The state rule of law is not saved by its allowance of the defense of
truth. A defense for erroneous statements honestly made is no less
essential here than was the requirement of proof of guilty knowledge
which, in Smith v. California, 361
U.S. 147
, we held indispensable to a valid conviction of a bookseller for possessing obscene writings for sale. We said:
"For if the bookseller is criminally liable without knowledge
of the contents, . . . he will tend to restrict the books he sells to
those he has inspected; and thus the State will have imposed a
restriction upon the distribution of constitutionally protected as well
as obscene literature. . . . And the bookseller's burden would become
the public's burden, for by restricting him the public's access to
reading matter would be restricted. . . . [H]is timidity in the face of
his absolute criminal liability, thus would tend to restrict the
public's access to forms of the printed word which the State could not
constitutionally
[376
U.S. 254, 279]
suppress directly. The bookseller's self-censorship, compelled
by the State, would be a censorship affecting the whole public, hardly
less virulent for being privately administered. Through it, the
distribution of all books, both obscene and not obscene, would be
impeded." (
361
U.S. 147, 153
-154.)
A rule compelling the critic of official conduct to guarantee
the truth of all his factual assertions - and to do so on pain of libel
judgments virtually unlimited in amount - leads to a comparable
"self-censorship." Allowance of the defense of truth, with the burden
of proving it on the defendant, does not mean that only false speech
will be deterred.
19
Even courts accepting this defense as an adequate safeguard have
recognized the difficulties of adducing legal proofs that the alleged
libel was true in all its factual particulars. See, e. g., Post
Publishing Co. v. Hallam, 59 F. 530, 540 (C. A. 6th Cir. 1893); see
also Noel, Defamation of Public Officers and Candidates. 49 Col. L.
Rev. 875, 892 (1949). Under such a rule, would-be critics of official
conduct may be deterred from voicing their criticism, even though it is
believed to be true and even though it is in fact true, because of
doubt whether it can be proved in court or fear of the expense of
having to do so. They tend to make only statements which "steer far
wider of the unlawful zone." Speiser v. Randall, supra, 357
U.S., at 526
. The rule thus dampens the vigor and limits the variety of public
debate. It is inconsistent with the First and Fourteenth Amendments.
The constitutional guarantees require, we think, a federal rule
that prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves
that the statement was made
[376
U.S. 254, 280]
with "actual malice" - that is, with knowledge that it was
false or with reckless disregard of whether it was false or not. An
oft-cited statement of a like rule, which has been adopted by a number
of state courts,
20
is found in the Kansas case of Coleman v. MacLennan, 78 Kan. 711,
98 P. 281 (1908). The State Attorney General, a candidate for
re-election and a member of the commission charged with the management
and control of the state school fund, sued a newspaper publisher for
alleged libel in an article purporting to state facts relating to his
official conduct in connection with a school-fund transaction. The
defendant pleaded privilege and the trial judge, over the plaintiff's
objection, instructed the jury that
"where an article is published and circulated among voters for the sole purpose of giving what the defendant
[376
U.S. 254, 281]
believes to be truthful information concerning a candidate for
public office and for the purpose of enabling such voters to cast their
ballot more intelligently, and the whole thing is done in good faith
and without malice, the article is privileged, although the principal
matters contained in the article may be untrue in fact and derogatory
to the character of the plaintiff; and in such a case the burden is on
the plaintiff to show actual malice in the publication of the article."
In answer to a special question, the jury found that the
plaintiff had not proved actual malice, and a general verdict was
returned for the defendant. On appeal the Supreme Court of Kansas, in
an opinion by Justice Burch, reasoned as follows (78 Kan., at 724, 98
P., at 286):
"It is of the utmost consequence that the people should discuss
the character and qualifications of candidates for their suffrages. The
importance to the state and to society of such discussions is so vast,
and the advantages derived are so great, that they more than
counterbalance the inconvenience of private persons whose conduct may
be involved, and occasional injury to the reputations of individuals
must yield to the public welfare, although at times such injury may be
great. The public benefit from publicity is so great, and the chance of
injury to private character so small, that such discussion must be
privileged."
The court thus sustained the trial court's instruction as a correct statement of the law, saying:
"In such a case the occasion gives rise to a privilege,
qualified to this extent: any one claiming to be defamed by the
communication must show actual malice or go remediless. This privilege
extends to a great variety of subjects, and includes matters of
[376
U.S. 254, 282]
public concern, public men, and candidates for office." 78 Kan., at 723, 98 P., at 285.
Such a privilege for criticism of official conduct
21
is appropriately analogous to the protection accorded a public
official when he is sued for libel by a private citizen. In Barr v.
Matteo, 360
U.S. 564, 575
, this Court held the utterance of a federal official to be
absolutely privileged if made "within the outer perimeter" of his
duties. The States accord the same immunity to statements of their
highest officers, although some differentiate their lesser officials
and qualify the privilege they enjoy.
22
But all hold that all officials are protected unless actual malice
can be proved. The reason for the official privilege is said to be that
the threat of damage suits would otherwise "inhibit the fearless,
vigorous, and effective administration of policies of government" and
"dampen the ardor of all but the most resolute, or the most
irresponsible, in the unflinching discharge of their duties." Barr v.
Matteo, supra, 360
U.S., at 571
. Analogous considerations support the privilege for the
citizen-critic of government. It is as much his duty to criticize as it
is the official's duty to administer. See Whitney v. California, 274
U.S. 357, 375
(concurring opinion of Mr. Justice Brandeis), quoted supra, p.
270. As Madison said, see supra, p. 275, "the censorial power is in the
people over the Government, and not in the Government over the people."
It would give public servants an unjustified preference over the public
they serve, if critics of official conduct
[376
U.S. 254, 283]
did not have a fair equivalent of the immunity granted to the officials themselves.
We conclude that such a privilege is required by the First and Fourteenth Amendments.
Brandenburg v. Ohio (1969), supra, protects a different subject area of speech: teaching, urging, and advocating that others take action, even illegal action, such as protesting a war, urging young men not to serve, urging that they refuse to register, burn their draft cards, and even violently and illegally overthrow the U.S. government. You can teach all that. You can advocate all that. But only up to a certain limit. That limit is reached when the advocacy becomes so large and current that there is now a present danger that the audience to which you speak is about ready to rise up and carry out the threat of violence. In Brandenburg, a KKK advocate urged his audience, amid burning crosses, to go to Washington to urge Congress to change the law. Urging an audience to petition their government to make peaceful change in the laws at some indefinite time in the future is hardly the same as, when the Dan White verdict (manslaughter) was delivered in the slayings of Mayor George Moscone and Supervisor Harvey Milk, instead of murder, speakers roused the mob in the Castro District to march on and burn City Hall, which they proceeded to do, burning a dozen police cars in the process and kicking in the doors to the building. The police have a right and duty to protect against speech when the roof is about to fall in. Otherwise you have a right to speak your mind, however intemperate. This is the lesson of Brandenburg. Here's the quote from the short per curiam opinion:
This remains the law to this day and is unlikely to change because it took a good 50 years of judicial wrestling to reach the point where we were willing to say that the First Amendment would be interpreted to protect even a speaker who advocates the illegal overthrow of the very government which protects his right to advocate and teach doing so. Imagine, the police protect a speaker who wants to subvert the American government. That's un-American, isn't it? No, just the opposite. Only in America (and a very few other Western democracies) will you find this. Don't waste your time looking for it in any totalitarian dictatorship anyplace in the world. Obviously this is a difficult concept for hot-blooded patriots to accept, which is why flag-burning arouses so much ire. But expression is expression, even when it is conduct calculated to inspire outrage. Texas v. Johnson (the flag-burning case), Cohen v. California (jacket bearing the legend on the back, worn in a public (L.A.) court building, stating: "Fuck the Draft," during the Vietnam War).
Olbermann is a news anchor with an undergraduate degree in communications. He's making the lawyers look bad in comparison. Tom Paine was no lawyer either, just a very clear thinking (Common Sense) patriot, later soldier fighting for Washington. "These are the times that try men's souls..." How's that for a lede?
Pres. Bush is a salesman. He'll argue anything to sell the war. When his first pitch turns out to be so false that, at last, all can see, he switches to another pitch. If you didn't believe his first lie, try this, and there's more where that came from, always draped in red, white, and blue wrapping paper to make it more enticing. And inside that package, when you open it, is a box. Pandora's Box, and we've surely opened it this time.
