The false, violence-promoting headline above, from the Oct. 17 New York Times, raises again an old question and, with it, an old word—calumny—as in, what is the role of government in preventing calumny? Calumny is the making of false and defamatory statements about others in order to damage their reputation. When written, such false, defaming statements are called libel; when spoken, slander.
This latest atrocity by the mainstream press (not merely the NYT—the BBC and CNN also blamed the attack on Israel) points back to the 1964 U.S. Supreme Court decision largely responsible for it all—New York Times v. Sullivan. The Sullivan decision changed the face of First Amendment jurisprudence overnight, raising what some deem to be a virtually insuperable obstacle for public figures who attempt to prove libel was committed against them by a media outlet.
Earlier this month, Supreme Court Justice Clarence Thomas wrote a concurring opinion in another case in which he argued that the Sullivan ruling allows the news media to “cast false aspersions on public figures with near impunity.” He therefore issued a call for the Court to “reconsider New York Times and our other decisions displacing state defamation law.”
Against Justice Thomas, some argue that the Sullivan decision—which ruled that, to prevail in a libel lawsuit, a public official must prove “actual malice” (a reckless disregard for the truth)— “provides important protections for journalists.” Were Sullivan reversed, they say, it would exercise “a chilling effect on the press.”
In sum, the two sides differ over whether it is more important to protect public officials or the press from unjust treatment.
But this a false dichotomy, as is shown by examining the thought of the Italian political philosopher Niccolò Machiavelli (1469-1527), whose arguments shed light on our current debate over Sullivan. In the first volume of his Discourses on Livy (1517), Machiavelli pens a chapter titled, “That Calumny is as hurtful in a Commonwealth as the power to accuse is useful.” He begins by discussing:
. . . [H]ow hateful a thing is calumny in all free States. . . . And there can be no more effectual means for checking calumny than by affording ample facilities for impeachment, which is as useful in a commonwealth as the other [calumny] is pernicious. And between them there is this difference, that calumny needs neither witness, nor circumstantial proof to establish it, so that any man may be calumniated by any other; but not impeached; since impeachment demands that there be substantive charges made, and trustworthy evidence to support them. Again, it is before the magistrates, the people, or the courts of justice that men are impeached; but in the streets and marketplaces that they are calumniated. Calumny, therefore, is most rife in that State wherein impeachment is least practiced, and the laws least favor it.
In short, while citizens who face legal “impeachment” are safeguarded by courts of justice, no such protection is offered to those who suffer calumny. Moreover, Machiavelli shows us the political power that calumny offers to those who would use it: “Some, indeed, have made use of calumny as a means for raising themselves to power, and have found their advantage in traducing [defaming] eminent citizens who withstood their designs. . . .”
Machiavelli commends the ancient Romans’ solution to this problem, which was to “so shape the laws of [the] State that it shall be possible therein to impeach any of its citizens without fear or favor; and, after duly providing for this, should visit calumniators with the sharpest punishments. . . . Where this is not seen to, grave disorders will always ensue.”
The balance struck by the Romans speaks to our situation. Yes, a free people must be able to bring charges against others that they deem guilty of crimes against society, and they must be afforded all legal protections when bringing charges. But calumny can ask for no such protection because its malicious lies threaten to tear a republic apart through giving rise to factionalism.
New York Times v. Sullivan has shifted us so far out of this balance that, today, few victims of media abuse can right the wrong without going to extraordinary measures—and expense—in the process. This not only reduces the number and, more importantly, the quality, of those who aspire to higher office, but also threatens those of us without the money and time to attempt to climb the hurdles erected by Sullivan—which means most of us.
We are a nation rightly devoted to freedom of speech and press, but freedom is not license. Sullivan tipped the balance too far in one direction. To restore this balance, it should be repealed.