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Kavanaugh And Thomas Could End Media Protection From Libel

By Julio Gonzalez, M.D., J.D.

On Feb. 29, 1960, Dr. Martin Luther King was arrested in Alabama on two counts of perjury for allegedly filing false state income tax returns. In response, and believing the case to be without merit, two groups, the Committee to Defend Martin Luther King and The Struggle For Freedom In The South, were formed with the aim of assisting Dr. King with the funding of his defense.  

On March 29, 1960, these two groups published a 10-paragraph advertisement in The New York Times with the aim of collecting such funds. The advertisement contained a description of multiple grievances that had occurred against the members of the black community in Montgomery.  

A number of the events depicted in the advertisement contained minor errors of fact while others were grossly inaccurate. For example, the advertisement contended that black students had demonstrated before the steps of the State Capitol while singing “My Country, Tis of Thee.”  In actuality the students sang the National Anthem.

In a more egregious reference, the students were said to have been padlocked in the dining hall of the Alabama State College Campus by the Montgomery police when they had not.  

Although the advertisement did not refer to City Public Safety Commissioner L. B. Sullivan by name or title, he contended that he was nevertheless libeled, as any false reference against the Montgomery police essentially referred to him, as its supervisor.  

Sullivan sued The New York Times and others for $500,000, the maximum allowable for libel in state court, and won. The case was appealed to the federal court and eventually reached the Supreme Court of the United States in 1964.

What resulted was a landmark case in American jurisprudence and the principal reason for the state of disrepair of American political discourse.

In New York Times, v. Sullivan, the Court placed great weight on the inherent ability of truth to naturally prevail. Seeing that erroneous statements are “inevitable in free debate,” the Court refused to uphold the libel charge brought forth from the lower court. Instead, it held that the importance of supporting “uninhibited, robust, and wide-open” debate that may include “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” was more important than any protections it could give to public officials.

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The Supreme Court consequently reversed the lower court’s ruling and imposed a new standard for successful libel actions against public officials. According to the Court, in order for a public official to prevail in a libel action it must show that the defendant acted “with knowledge that the statement was false or with reckless disregard of whether it was false or not,” a standard known as “actual malice,” or “New York Times malice.”

Although accepted as bedrock in American jurisprudence dealing with public figures and elected officials, this case has been the source of great discussion amongst legal scholars. Is this near-impossible standard too high? Was the Court’s fear of self-censorship justified, or does the press and political opponents need a little self-restraint? Is the OK Corral attitude of the Court the better approach, or does such a cavalier attitude muddy speech and make the situation worse for voters? To this day, consensus on these questions does not exist.  

Fast forward 54 years to 2018 when a judge by the name of Brett Kavanaugh is nominated for a position in the Supreme Court of the United States. The man has an impeccable record as an adult, as a judge, and as a professional. He is one of the most revered and respected persons in his field. But at stake are the philosophical balance of the Court and the future of landmark abortion cases such as Roe v. Wade.

Predictably, Judge Kavanaugh’s confirmation hearing goes near flawlessly and his confirmation virtually sealed. But all of a sudden, after the conclusion of his confirmation hearings before the Senate Committee on the Judiciary, a completely unsubstantiated and uncorroborated accusation regarding his alleged conduct as a 17-year-old high school student (some 36 years prior) is brought against him. The accuser claims that Kavanaugh had engaged in a sexual assault against her at a party when she was 15 years old.

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Within days, other stories were told. Stories alleging that as a college student at Yale University, Kavanaugh exposed himself to a female student while they were both intoxicated at a dorm party. Again, no corroboration existed. And then there was another story of how Kavanaugh had been involved in drugged-out gang raping activities in high school parties in Maryland, but not a single piece of evidence substantiated the charge, either.

After a vile and disgusting display of deceit and political theater that gripped the nation and forever tarnished his reputation, Judge Kavanaugh was confirmed in the closest judicial confirmation vote in American history.

But Kavanaugh was not alone in falling victim to the predatory tactics enabled by the elevated burden of proof inherent to the New York Times malice standard. All over the country, candidates have attacked their opponents with false and misleading accusations. And because the judicial system offers littler refuge or recourse in these cases, unless the victims of these attacks are able to find sufficient funding to successfully ward them off, their reputations are smeared and their races brought to an end.  

And thus begins the endless barrage of negative campaign ads and misleading accusations. I should know; it happened to me; twice!

President Donald Trump has also fallen victim to these vicious attacks, except, in his case, it is the media that has been waging its propaganda war. Frustrated, the President has repeatedly called for an adjustment in the nation’s libel laws, most recently in comments relating to Justice Kavanaugh’s confirmation process. But in reality what needs to happen is an adjustment of “New York Times malice.”

Justice Kavanaugh is now a sitting member of the Supreme Court of the United States and flanked by another victim of kavanaughing, Justice Clarence Thomas. Having both been survivors of horrible and ruthless political denigration tactics, it stands to reason that these two justices would be much more sympathetic to protections against false and malicious speech against public officials than prior justices.  

Suddenly, there’s a new question for legal scholars and political observers alike: with two victims of egregiously false political speech sitting on the bench, a frustrated public, and a disgruntled President, will the Court be willing to take an ax to “New York Times malice” and restore a certain level of self-imposed responsibility upon the deliverers of political speech?  

I’m predicting we will soon find out.

Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and cohost of Right Talk America With Julio and Rod. Dr. Gonzalez is presently serving in the Florida House of Representatives. He can be reached through to arrange a lecture or book signing.

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4 replies on “Kavanaugh And Thomas Could End Media Protection From Libel”

My question is whether the standard “with knowledge that the statement was false or with reckless disregard of whether it was false or not,” could be proved in the Kavanaugh case. This would, of course require an investigation, but the possibility of perjury on the part of Ms Ford and possibly others should also be investigated.

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