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


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.