Letter: Robust debate shouldn’t be an excuse for fake news
Rohn Robbins did a column in praise of the case New York Times vs Sullivan in 1964. That decision established a new rule that claims of libel (falsehood) against the media had to show actual malice if the injured party is a public official. Later cases extended this concept to anyone who is a public figure — such as an entertainer.
The rationale for this decision was to encourage “robust ” public debate. I disagree. “Robust debate” should not be an excuse for untruth. Whether a statement is true or false should be the only test. What public good is served by excusing a falsehood?
In Robbins’ view ” … the decision opened the doors to the press to criticize or otherwise comment upon all public servants or officials.” No, it didn’t. The right to criticize has always been there. What the Sullivan decision did was make it easier to get away with dishonesty.
It is interesting that Robbins did not mention a recent opinion by Justice Clarence Thomas in the 2019 case of Kathrine Mae McKee vs William H. Cosby, Jr. There, Ms. McKee was one of those who accused Cosby of rape. Cosby’s lawyers publicized disparaging claims against her, including that she was a liar. McKee sued for libel.
The Supreme Court denied certiorari (review) of the case, based on the New York Times vs Sullivan rule. Justice Clarence Thomas entered a separate opinion calling for a re-examination of the Sullivan rule: “… New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.”
I agree with Justice Thomas. The First Amendment of the United States Constitution says that Congress ” … shall make no law … abridging freedom of speech, or of the press …” I don’t see how this would justify giving a special dispensation to the press for fake news.