Tuesday, September 30, 2008

The Evolving Constitution

In 1964, the United Stated Supreme Court decided the landmark First Amendment case, New York Times v. Sullivan, 376 U.S. 254 (1964), in which the Court held that the public's interest in promoting "uninhibited, robust and wide-open" debate among citizens is so important that a heightened standard of malice should be required in order to defame (i.e., libel and slander) a public figure. Accordingly, since 1964, to be liable for defamation against a public figure (say, for example, a candidate for President of the United States), the public figure bears the burden of proving intentional falsehood or reckless disregard of the truth. Mere opinion or advocacy, or even quoting out of context, is insufficient.  As a practical matter, if you are a public figure, the Constitution affords you little, if any, protection against defamation. Now, if you are a former Constitutional law professor, it is safe to assume you know this. So why does Senator Obama launch a campaign in Missouri to file legal actions, including criminal complaints, against purveyors of allegedly misleading advertisements against him, especially where, as here, Senator Obama is no stranger to purveying such deceptive advertisements, at least according to the Obama-phillic New York Times?  I would like to ask this question:  What would the left-leaning members of this community think if the Republicans filed lawsuits against MoveOn, DailyKos and ThinkProgress for the inaccurate statements these sites publish?  If you are at all candid, this conduct should offend you very much. Either way, it sure offends the governor of Missouri. 


  1. In an earlier post, or possibly in one of the pre-post emails, I believe I answered a question along these lines of nykils. Many states, such as Ohio (I'm not sure about MO), making it illegal for campaigns to make knowing and willful misstatements of fact or other misrepresentations of reality. Some of the debate surrounding these laws is presented here "There Should Be a Law!

  2. All this is evidence, if any were needed, of the debased nature of our politics. A plague on both their houses. I'm sure that Lee Atwater is chuckling happily up in Dirty Tricks Heaven.

    Obama's threatened lawsuits in Missouri are just the next natural progression of all this. Full employment for the tort bar, but hardly out of keeping with the tenor of the campaign: since when is intellectual consistency a requirement in these matters? Of course the suits won't go anywhere: that's not their intention, any more than, say, the nomination of a vice-presidential candidate is primarily intended to provide for the demise of the presidential candidate.

  3. >>> ". . . the nomination of a vice-presidential candidate is primarily intended to provide for the demise of the presidential candidate.<<<

    Under the circumstances, I trust this pun was intended. If not, I will give you credit anyway. Very amusing.

  4. The pun (really a double entendre) was not intended; but I'll gladly accept the credit. In Palin's case, it may work.



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