Inside the First Amendment by Gene Policinski

So what part of the First Amendment, or the law around it, would you want to change?

For most of us, the answer is an academic exercise at best. For a few legislators, lawyers and litigants, the response is proposed legislation or lengthy briefs and pointed legal arguments.

But when the words involve justices of the U.S. Supreme Court, it is cause for special attention.

Justices Antonin Scalia and Ruth Bader Ginsburg in a recent public appearance, and retired justice John Paul Stevens in a new book, opine on subjects ranging from a landmark 50-year old libel law decision to the current hot-button topic of campaign finance laws.

Scalia and Ginsburg appeared together April 17 at the National Press Club in Washington, D.C., for a discussion about First Amendment freedoms. Scalia would repeal the Supreme Court’s 1964 decision in New York Times v. Sullivan, which set out the principle that public officials — later expanded to public figures — have to prove “actual malice” to win a libel lawsuit.

The 9-0 ruling in 1964 involved a lawsuit brought by Montgomery, Ala., police commissioner L.B. Sullivan against the newspaper and a group of civil rights advocates over a full-page advertisement critical of local police actions. The ad contained factual errors.

To allow for the widest possible debate on matters of public interest, the court held that the First Amendment protects even erroneous statements about the conduct of public officials, except when made with knowledge that the statements are false, or with reckless disregard of the truth.

Scalia maintained that libel law historically was set at the state level, outside the purview of the U.S. Constitution, and the court was wrong to change that circumstance. “It was nine lawyers who decided that is what the Constitution ought to mean, even though it had never meant that,” he said.

He also said, “I think George Washington, I think Thomas Jefferson, I think the Framers would have been appalled at the notion that they could be libeled with impunity.” Scalia said that “If you are a public figure, you cannot sue somebody for libel unless you can prove, effectively, that the person knew it was a lie. So long as he heard from somebody, you know, it makes it very difficult for a public figure to win a libel suit.”

For her part, Ginsburg noted that the situation facing the court did not exist in colonial times, where libel law could have been used “as a way of squelching the people who were asserting their freedoms.” She said the Times decision empowered the press to report fully on the civil rights movement, and that the ruling “is now well accepted.” She added, “I suspect if the Founding Fathers were around to see what life was like in the 1960s, they would have agreed with that” decision.

Televising the Supreme Court’s proceedings, currently banned by court rule rather than law, found no support from either Ginsburg or Scalia. Both said they have reservations about allowing cameras in their courtroom.

“If the American people watched our proceedings from gavel to gavel, they would be educated,” Scalia said. The justices said their fear is that by watching only portions of arguments before the court, or “man-bites-dog” clips used in brief news reports, the public would be misinformed rather than better-educated about what they do.

Retired Justice Stevens, in a new book published April 22, “Six Amendments: How and Why We Should Change the Constitution,” calls for a return to spending limits by corporations in political campaigns. Stevens dissented in the landmark 2010 Citizens United v. Federal Election Commission decision that eliminated a ban on corporate and union
campaign spending.

In his latest book, the 94-year-old jurist argues for “reasonable limits” on campaign spending, to be set by Congress or the states. In a New York Times interview published April 21, Stevens said Citizens United and later decisions — likely including the recent removal of caps on the total amount corporations and individuals can spend in federal elections — are “really wrong.” The result, he said, is that “the voter is less important than the man who provides money to the candidate.”

Justices Ginsburg and Scalia declined to comment on whether reporters involved in recent disclosures of National Security Agency surveillance programs merited their recent Pulitzer Prize.

But Ginsburg, in speaking about the news media’s historical role, said, “The press has played a tremendously important role as watchdog over what the government is doing. That keeps the government from getting too far out of line. Yes, there are excesses in the press, but we have to put up with that.”

And of that view, I suspect, Washington, Jefferson and the Founders would be proud.

 

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org.