Obama Administration

Free Speech May Cause 'Unjustified Suspicion' of Politicians. So What?

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This month marks the 50th anniversary of the Supreme Court's decision in New York Times v. Sullivan, a landmark First Amendment ruling in favor of "the principle that debate on public issues should be uninhibited, robust, and wide-open." Indeed, the Court argued, to take free speech seriously means to accept that free speech will not always be polite. "Vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials," the Court said, are an indispensable part of the deal.

At Bloomberg View, Harvard law professor and former Obama administration official Cass Sunstein says the Court basically got it right. But he still wishes more people would "pay close attention to the dark side of New York Times v. Sullivan." Here's his description of that dark side:

When it comes to public figures, all sorts of false allegations are permissible, whether they involve birth certificates, drug abuse, sexual misconduct or income tax fraud. One result is that those who seek public office put their reputation at immediate risk.

One of the goals of the court's ruling was to protect self-government, but the effects on self-government are not all good. Talk show hosts, bloggers and users of social media can spread ugly falsehoods in an instant—exposing citizens to lies that may well cause them to look on their leaders with unjustified suspicion.

False accusations are hardly new. But New York Times v. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.

It's true, ugly talk about politics is certainly nothing new. But is it getting worse, as Sunstein seems to think? Are we living in a hellish new "climate of distrust and political polarization?" To help you ponder that question, I leave you with Reason TV's hilarious "Attack Ads, Circa 1800," which harkens back to the good old days before "talk show hosts, bloggers and users of social media" arrived on the scene.

NEXT: Rand Paul is Politically "Divergent" and So Must be Stopped!

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  1. When it comes to public figures, all sorts of false allegations are permissible, whether they involve birth certificates, drug abuse, sexual misconduct or income tax fraud.

    Is Cass Sunstein a public figure? I hear that drug crazed sheep-fucker not only doesn’t pay any taxes,he wasn’t even born here!

  2. “Free Speech May Cause ‘Unjustified Suspicion’ of Politicians.”

    I could see that it might be unjustified as regards the specifics, but it’s a pretty rare politico who is above suspicion in general.
    So even purely utilitarian values are not really harmed.

  3. “Unjustified Suspicion”? When talking politics, there is no such thing. People who run for elected office should be scrutinized for every iota of wrongdoing or malicious intent.

    1. The fact that most of them win reelection, and are not universally despised by the public shows a definite lack of suspicion.

  4. I cannot envision any suspicion of politicians which would be unjustified.

  5. One result is that those who seek public office put their reputation at immediate risk.

    Boo fucking hoo.

    Nobody ever ran for office so he could leave me the fuck alone.

  6. People like Sunstein need to be held up to constant public scorn and ridicule. I don’t care what his credentials are. I don’t care how exclusive of a law school hires him to teach. Anyone who thinks that speech needs to be more regulated lest we have too much unjustified suspicion of politicians and a grade A moron whose opinions should be disregarded out of hand.

    Being a moron, Sunstein misses the real problem here, the lack of a loser pays system. The reason why libel laws can have such a chilling effect on speech is that the cost of defending one is so high. It doesn’t matter that I was telling the truth or engaging in protected speech because if I am sued for libel I will go broke defending myself in court. Sure, I will win. But successfully defending the suit won’t pay my legal bills. Make it so the loser pays and people wouldn’t be able to use the threat of a libel suit as a way to chill speech.

    1. Loser pays is an awful idea that would anihilate the ability of a poorer plaintiff to go after a richer defendant. If you want to get rid of the threat of libel suits, advocate for the passage of better SLAPP laws.

      1. The poor person should be able to get a break, whether by bankruptcy or otherwise. Doesn’t mean a person with money who files a baseless defamation claim should be off the hook.

      2. Why would it annihilate that? If you actually have a case, you don’t have to worry about paying. We already have loser pays in civil rights cases. And plenty of poor plaintiffs sue rick defendants. There are thousands of attorneys who make a fat living handling those cases even with loser pays.

        What loser pays would do is make rich parties pay their debts. Time really is money. Without loser pays, a party that has a legitimate debt can just refuse to pay it, make the other side sue and then eventually settle the claim or take their chances in court. Yeah, that cost legal fees. But legal fees are nothing to big business. They get sued for a living. For example, lets say I owe you 100K. I could pay you now sure. Or, I could tell you to fuck off. If takes you say two years to go through the process of hiring a lawyer and suing me, I can use that money for two years. As long as I can make more using the money than I spend in legal fees defending your suit, which I probably, will I come out on top.

        And that is worst case. The better and most likely case is that you take $75 to settle the suit because you need the money and can’t wait as long as I do. Insurance companies make their living squeezing and waiting out claimants.

        That is how the law actually works. Loser pays would end most of that nonsense.

        1. If you actually have a case, you don’t have to worry about paying.

          That’s assuming the trial will be fair, which can be a huge assumption.

          I do agree with loser pays, though. It only makes sense. Actually, I would think that a losing plaintiff should always have to pay. A losing defendant may not in every circumstance.

          1. I don’t think that is too much of an assumption. I think most trials produce fair results. The problem is that trials are so long and expensive and the process to actually get to a trial even longer and more expensive that it doesn’t matter if the trial is fair and your claim valid. If I need the money less than you, I can just wait you out.

      3. Loser pays is an awful idea that would anihilate the ability of a poorer plaintiff to go after a richer defendant.

        (a) Why should we asymetrically distribute the costs and risks of a lawsuit in a justice system that is supposed to be even-handed? Either loser pays, or each side pays their own fees is better than what we have now, but really, to be even-handed in tort lawsuits where there is no risk on the plaintiff, you really need loser pays.

        (b) Require a written agreement, in advance, in contingent fee cases. If the plaintiff loses, the plaintiff’s lawyer pays the defendant’s legal fees pro rata according to their contingent fee. If he gets the upside, he should get the downside, too.

        1. Loser pays, by raising the stakes of a trial or prolonged legal battle, would encourage parties to settle and pay reasonable claims.

          The civil court system in this country is so broke that a well funded party can easily game the system. Loser pays would make that more difficult by ensuring consequences to fighting a lawful claim.

      4. If there was loser pays at the federal level, patent trolling assholes would be less common.
        http://www.techdirt.com/articl…..orks.shtml

      5. You are not thinking this through. Poor people actually are better off with loser pays, because if they have a good case against someone rich, they have an excellent chance of getting the case taken on contingency, and proper loser pays would include costs, so the winner would get the full amount awarded with his lawyer’s bill coming on top of that.

        Whereas a rich person suing someone poor has little chance of collecting outrageous awards.

        Jeez. Loser pays is one of the best things for true social justice, unlike the crap system we have today.

  7. This reminds me of the Supreme Court case that used the public’s faith in the government as a justification for upholding (or striking down, can’t remember) an otherwise objectionable law.

    Shouldn’t governments earn the public’s faith by, you know, being trustworthy or otherwise successful? Why is the default, for people like Sunstein, to give crooked politicians the benefit of the doubt?

  8. It’s true, ugly talk about politics is certainly nothing new. But is it getting worse, as Sunstein seems to think? Are we living in a hellish new “climate of distrust and political polarization?”

    Please, stop making pragmatic arguments. Free Speech is a good in itself, so it should be defended as a matter of principle, regardless of the bitter language wielded against politicians and so-called “public servants”.

  9. Cass Sunstein

    I stopped reading right there.

    1. That is a good policy Kristen. That is why you make the big bucks.

  10. “Talk show hosts, bloggers and users of social media can spread ugly falsehoods in an instant”

    Here’s what offends me most about the article.

    The New York Times isn’t a blogger, but it smeared the lacrosse players.

    Dan Rather wasn’t a talk show host, but he used fake documents against George W. Bush. It was bloggers who helped catch Rather.

    Compared to the MSM, bloggers and talk show hosts look pretty good, given that unlike the MSM they don’t even pretend not to have an agenda.

    1. Which is why they have such disdain for bloggers, or rather, a newer form of journalism.

      Actually, isn’t the “internet journalism” not that different than how it was in the heyday of newspapers? There were tons of those…and now it’s all digital.

      I think the NYT, ABC, NBC, etc., want to go back a few years to when they were the only game in town and had sole journalistic power.

      Whether they’re ideologues or cynical, I’d expect these guys to be in the next big push for gov’t sponsored journalist licensing.

      1. As if the NYT, ABC, NBC,etc. are objective and unbiased. They simply want to pretend to be so as to more easily mislead the public.

    2. “Dan Rather wasn’t a talk show host, but he used fake documents against George W. Bush. It was bloggers who helped catch Rather.”

      I just read a book wherein the author makes the claim that Rather was wrong to use those documents, but that no one ever proved Bush didn’t get away with what was claimed.
      I’m sorry it was a book instead of a blog; I wanted to point out to the author that no one ever proved Rather didn’t consort with goats.

      1. That is the whole “the narrative was right but the facts were wrong” claim. It shows how crazy and irrational they are. The claim is that because Bush never refuted the fake evidence against him the claim must be true even though the evidence was fake.

        It is the same logic as saying after a jury found a defendant not guilty because it concluded the evidence against him had been faked by the government that “the government was wrong for fabricating the evidence against him but the defendant never proved he was innocent so clearly he is guilty”.

  11. A politician should have the same right as Joe Schmoe to vindicate his reputation. No more and no less. If you limit the right of “public figure” plaintiffs, you should limit Schmoe’s rights too, and vice versa.

    The NYT v. Sullivan case isn’t what libel reform needs, it needs loser pays as John said.

    1. But politicians are “special” and need “special treatment”.

      1. Their feelings are deeper than ours. They’re public servants, and it proves that they have more empathy than the greedy hoi polloi.

  12. So, basically Sunstein and his team are ripe for refutations and ridicule and he supports a soft “ban” on hurtful words…or accurate words…or any kind of argument or evidence that may make him look bad.

    Big surprise. A dangerous idiot, this Sunstein is.

  13. Talk show hosts, bloggers and users of social media can spread ugly falsehoods in an instant

    Like, say, I don’t know, politicians with a podium?

  14. But New York Times v. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.

    Feature, not a bug.

  15. (b) Require a written agreement, in advance, in contingent fee cases. If the plaintiff loses, the plaintiff’s lawyer pays the defendant’s legal fees pro rata according to their contingent fee. If he gets the upside, he should get the downside, too.

    I like that.

  16. ” But New York Times v. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.”

    You know what would engender even more polarization and mistrust? Allowing politicians to prosecute anyone they claim is spreading false allegations.

  17. He’s referring to Harry Reid being a child molester, isn’t he?

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