A Brief on New York Times v. Sullivan

Someone sent this in, and I thought I'd post it. See here for why.

New York Times V. Sullivan
376U.S. 254
84 S.Ct. 710
11 L.Ed. 2d 686

Summary:

A paid advertisement was published in the New York Times that told about the mistreatment of black students in Montgomery, Ala. who were peacefully protesting segregation. The City commissioner of Montgomery, L.B. Sullivan, filed a lawsuit claiming libel in the circuit court. Along with the NY Times, four black students were named as defendants. The Jury awarded Mr. Sullivan $500,000 in damages against each defendant.

Constitutional questions:

What constitutes libel? Can this advertisement printed in the New York times be shown to cause damage to Mr. Sullivan? What limits does the constitution impose upon states power to award damages in libel action brought by public official against critics of his official conduct?

Ruling: Reversed, 9-0

Reasoning:

The evidence Mr. Sullivan presented, and was the basis for the state supreme court judgment, was found insufficient to impose a fine of any magnitude upon the defendants. The rule of law applied to this case by the Alabama courts does not provide safeguards for freedom of speech required by the first and fourteenth amendment in a libel action brought by a public official against critics of his conduct.

The paragraphs of the advertisement in question that respondent claims damage his character refer only indirectly to him. One refers to police action against students, which he claims to be the personification of the police by virtue of his position as city commissioner. The other paragraph refers to arrests made of students protesting. Police make arrests, so once again Mr. Sullivan claims it is referring to him.

We find it necessary that the national debate on public issues should be open, uninhibited, robust “and may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”

The present issue is without question covered by the constitutional protection for free expression. We also find it unnecessary to determine the falsity of any factual statements. There shall be no exceptions to the protections of free speech based on the truth of a statement. Error in open public debate is inevitable. It is most important that the burden of truth never be on the speaker.

A rule requiring a guarantee of truth in criticism or public debate would have the effect of self-censorship. Potential critics would be deterred by the risk of accidentally stating the wrong facts or other similar mishaps.

In order for a public official to recover damages as a result of false criticism they must prove the statement is made with “actual malice,” that is, with the knowledge that it was false or with reckless disregard for whether it was false or not. As for the defendants, we find their is insufficient evidence to show an “actual malice.” It was at most negligence on the part of the NY times. The lower court ruling is reversed and remanded.

Italics added.

Robert Jensen on Thanksgiving

Reprinted in full with the permission of the author, this column covers my feelings on Thanksgiving in a far more eloquent way than I ever could:

Give Thanks No More

A National Day of Atonement

By ROBERT JENSEN

One indication of moral progress in the United States would be the replacement of Thanksgiving Day and its self-indulgent family feasting with a National Day of Atonement accompanied by a self-reflective collective fasting.

In fact, indigenous people have offered such a model; since 1970 they have marked the fourth Thursday of November as a Day of Mourning in a spiritual/political ceremony on Coles Hill overlooking Plymouth Rock, Massachusetts, one of the early sites of the European invasion of the Americas.

Not only is the thought of such a change in this white-supremacist holiday impossible to imagine, but the very mention of the idea sends most Americans into apoplectic fits -- which speaks volumes about our historical hypocrisy and its relation to the contemporary politics of empire in the United States.

That the world's great powers achieved 'greatness' through criminal brutality on a grand scale is not news, of course. That those same societies are reluctant to highlight this history of barbarism also is predictable.

But in the United States, this reluctance to acknowledge our original sin -- the genocide of indigenous people -- is of special importance today. It's now routine -- even among conservative commentators -- to describe the United States as an empire, so long as everyone understands we are an inherently benevolent one. Because all our history contradicts that claim, history must be twisted and tortured to serve the purposes of the powerful.

One vehicle for taming history is various patriotic holidays, with Thanksgiving at the heart of U.S. myth-building. From an early age, we Americans hear a story about the hearty Pilgrims, whose search for freedom took them from England to Massachusetts. There, aided by the friendly Wampanoag Indians, they survived in a new and harsh environment, leading to a harvest feast in 1621 following the Pilgrims first winter.

Some aspects of the conventional story are true enough. But it's also true that by 1637 Massachusetts Gov. John Winthrop was proclaiming a thanksgiving for the successful massacre of hundreds of Pequot Indian men, women and children, part of the long and bloody process of opening up additional land to the English invaders. The pattern would repeat itself across the continent until between 95 and 99 percent of American Indians had been exterminated and the rest were left to assimilate into white society or die off on reservations, out of the view of polite society.

Simply put: Thanksgiving is the day when the dominant white culture (and, sadly, most of the rest of the non-white but non-indigenous population) celebrates the beginning of a genocide that was, in fact, blessed by the men we hold up as our heroic founding fathers.

The first president, George Washington, in 1783 said he preferred buying Indians' land rather than driving them off it because that was like driving 'wild beasts' from the forest. He compared Indians to wolves, 'both being beasts of prey, tho' they differ in shape.' Thomas Jefferson -- president #3 and author of the Declaration of Independence, which refers to Indians as the 'merciless Indian Savages' -- was known to romanticize Indians and their culture, but that didn't stop him in 1807 from writing to his secretary of war that in a coming conflict with certain tribes, '[W]e shall destroy all of them.'

As the genocide was winding down in the early 20th century, Theodore Roosevelt (president #26) defended the expansion of whites across the continent as an inevitable process 'due solely to the power of the mighty civilized races which have not lost the fighting instinct, and which by their expansion are gradually bringing peace into the red wastes where the barbarian peoples of the world hold sway.' Roosevelt also once said, 'I don't go so far as to think that the only good Indians are dead Indians, but I believe nine out of ten are, and I shouldn't like to inquire too closely into the case of the tenth.'

How does a country deal with the fact that some of its most revered historical figures had certain moral values and political views virtually identical to Nazis? Here's how 'respectable' politicians, pundits, and professors play the game:

When invoking a grand and glorious aspect of our past, then history is all-important. We are told how crucial it is for people to know history, and there is much hand wringing about the younger generations' lack of knowledge about, and respect for, that history. In the United States, we hear constantly about the deep wisdom of the founding fathers, the adventurous spirit of the early explorers, the gritty determination of those who 'settled' the country -- and about how crucial it is for children to learn these things.

But when one brings into historical discussions any facts and interpretations that contest the celebratory story and make people uncomfortable -- such as the genocide of indigenous people as the foundational act in the creation of the United States -- suddenly the value of history drops precipitously and one is asked, 'Why do you insist on dwelling on the past?'

This is the mark of a well-disciplined intellectual class -- one that can extol the importance of knowing history for contemporary citizenship and, at the same time, argue that we shouldn't spend too much time thinking about history.

This off-and-on engagement with history isn't of mere academic interest; as the dominant imperial power of the moment, U.S. elites have a clear stake in the contemporary propaganda value of that history. Obscuring bitter truths about historical crimes helps perpetuate the fantasy of American benevolence, which makes it easier to sell contemporary imperial adventures -- such as the invasion and occupation of Iraq -- as another benevolent action.

Any attempt to complicate this story guarantees hostility from mainstream culture. After raising the barbarism of America's much-revered founding fathers in a lecture, I was once accused of trying to 'humble our proud nation' and 'undermine young people's faith in our country.'

Yes, of course -- that is exactly what I would hope to achieve. We should practice the virtue of humility and avoid the excessive pride that can, when combined with great power, lead to great abuses of power.

History does matter, which is why people in power put so much energy into controlling it. The United States is hardly the only society that has created such mythology. While some historians in Great Britain continue to talk about the benefits that the empire brought to India, political movements in India want to make the mythology of Hindutva into historical fact. Abuses of history go on in the former empire and the former colony.

History can be one of the many ways we create and impose hierarchy, or it can be part of a process of liberation. The truth won't set us free, but the telling of truth at least opens the possibility of freedom.

As Americans sit down on Thanksgiving Day to gorge themselves on the bounty of empire, many will worry about the expansive effects of overeating on their waistlines. We would be better to think about the constricting effects on the day's mythology on our minds.


Robert Jensen is a journalism professor at the University of Texas at Austin and a member of the board of the Third Coast Activist Resource Center. He is the author of The Heart of Whiteness: Race, Racism, and White Privilege and Citizens of the Empire: The Struggle to Claim Our Humanity (both from City Lights Books). He can be reached at rjensen@uts.cc.utexas.edu.

More on Blogging, Lawsuits and School Districts

Via Slashdot, a story out of Texas that has some of the same components of Lebanon's ongoing learning experience - except, of course, that the person being sued is not anonymous and is a parent. From the Galveston Courier:

GALVESTON — The public school district has officially demanded that parent Sandra Tetley remove what it says is libelous material from her Web site or face a lawsuit for defamation.

Tetley received a letter Monday from the district’s law firm demanding she remove what it termed libelous statements and other “legally offensive” statements posted by her or anonymous users, and refrain from allowing such postings in the future. If she refuses, the district plans to sue her, the demand letter states.

...

One legal expert said the district’s move to sue Tetley is rare and unlawful. Under the 1964 Supreme Court case New York Times v. Sullivan, government entities cannot sue for libel — any court would toss out the “threatening” suit as being inconsistent with U.S. law, said Sandra Baron, executive director of New-York based Media Law Resource Center. She called the district’s potential lawsuit an intimidation tactic and a waste of taxpayer dollars.

Interesting.

More background can be found in another Galveston Courier story:

GALVESTON — An appeals court ruled in 2002 that school districts can’t sue for defamation, so Galveston school district may face some hurdles if it moves forward with its lawsuit.

In a case that Galveston school district’s attorney argued is different, Port Arthur’s public school district in 2001 tried to sue a blogger for defamation. The Texas Ninth Court of Appeals tossed out the lawsuit based on black-letter law: New York Times v. Sullivan clearly prohibits such lawsuits.

Someone should look up the New York Times v. Sullivan case. I'm too lazy.

Sandra Tetley's blog.

Writer's Guild Association Strike

Check out this IGN interview with Battlestar Galactica producer and writer Ron Moore; it does a great job explaining why the strike is happening - and why you should support it =)

UPDATE: For lots and lots (and lots) of information on the writer's strike, check out the United Hollywood blog.

This strike seems to be a attracting a lot of support and attention in a really short time.

That's a good thing, but it's a qualified good.

Where is the attention paid to strikers in less-visible industries?

Why are we paying attention to this strike?

In a nutshell, 24.

Seriously.

Something's wrong here.

Another Thought on Lebanon in Response to Comments

I think we've just about revealed the conundrum here in the comment thread to this post...

Assumption #1: No one on the pro-Robinson/pro-law side can tell Rick, Josh, Kim, or perhaps Debi what to do. Given this, it is incumbent on the former group and public citizens to work towards resolution and reconciliation. This is not fair, but I believe it's realistic.

Assumption #2: Robinson and Sprenger are on the side of the law. This is pretty clear.

Assumption #3: Kim, Rick, Josh, and Debi will not go away as long as (a) they feel there is injustice being done, or (b) until Robinson leaves. I am afraid that the correct answer is either (b) or (c) both, in which case the district is in for one helluva ride.

Given those three assumptions, I think this is one way to express the problem faced by the folks in the district:

If RJKD feel slighted when Sprenger, legal counsel and Robinson hew to a strict understanding of board policy and law, and if no one can really change the behavior of RJKD, and having RS give some ground will not result in behavioral improvements, then what should happen? I see no resolution here that ends with everyone happy and no law-breaking.

Instead, I think I have been making another assumption: That while Rick and possibly Josh are power hungry enough to blatantly ignore the law again and again (as opposed to having learned from their first little adventure), Kim and Debi are not. I'm beginning to think that may have been a bad assumption and that Debi will go along with another stupid enterprise - and that Kim will not stand in their way.

So? I am taking as a given that going after Rick and Josh is not an option, as I've not seen any evidence of that so far, but what if that course of action turns out to offer the best chance at a resolution? Why not start a recall campaign against them?

To put it another way: I am a supporter of the idea of restorative justice; most folks in Lebanon, especially RJKD seem interested in punitive justice. I've been pushing for the former and the commenters here have obviously been of the latter variety. I'm beginning to think that a third way - exclusion of the RJKD block from power into equilibrium can be restored and/or they learn to play nice - is maybe viable.

Just following a train of thought wherever it goes...not really sure about this one.

College Racism Roundup

It can be found over here.

Shamelessly stolen from Stoller, who constitutes most of the OSU section - since the Baro isn't really doing their job on any of this. Har.

ENDA Passes US House (now what?)

Americablog has a good summary (though I should note that I disagree with Aravosis' position on the inclusion of transgendered folks).

"And Now a Noose at OSU"

Basically, go read Michael's post. It's short, but you need to know about it.

The Barometer's Amazing Lack of Professionalism

I submitted an op-ed awhile back that, had it been printed, would have run around the 1st or 2nd of November, but neither the Baro or the GT decided to run it. While I am not terribly bothered by the decision - I know the writing could use some work and of course it is the decision of a paper's editorial staff to run submissions or not - I am less than enamored of the way the Baro handled it: They didn't.

As in, I sent it off and apparently addressed it to a black hole. The GT at least had the courtesy to say no.

Anyway, in light of Michael's letter and post as well as Luke's post detailing his own little affair with the Barometer's amazing lack of professionalism this year, I'm going to run what I wrote here:

Barometer Should Have Known Better

The OSU Daily Barometer's admission that they need to do better when it comes to listening to the OSU campus (see The Daily Barometer, “Examining Offenses,” 10-26-07) is too little and too late.

Every couple of years the Barometer runs something incredibly offensive or ignorant, often around race or religion; rarely do they actually bother to respond to the subsequent outrage or criticisms, often hiding behind the implied claim that they bear zero responsibility for the speech of their columnists.

I'm glad to to see that this time is different, that at least the editorial staff ran a response. However, the failure of the editorial to adequately address the issue suggests a lack of understanding of the nature of the problem, and a problem that outlasts the high-turnover Barometer staff – but not Frank Ragulsky, the Barometer's faculty adviser.

It is my opinion that these sorts of mistakes could easily be avoided if the Barometer's editorial staff had some sort of journalism-oriented diversity or cultural competency training. But they don't. When I served on the Student Media Committee, I pushed for the editorial staff to participate in just this sort of training. But I was rebuffed, and it was obvious that no one, including Mr. Ragulsky, saw such training as beneficial or necessary.

By all accounts, Mr. Ragulsky is an excellent advisor. However, he has been the constant throughout all the incidents that have occurred for a long time, long before I ever came to Corvallis. I find it extremely troubling that he consistently fails to show any interest in educating the staff of a college newspaper about the intersection of journalism and diversity.

Journalists, like everyone else, bring to work with them the sum of their experiences and their values – and are therefore not the neutral or objective actors that ancient media theory hold them to be. It would be nice if the sum of their experiences included some awareness that would allow them to avoid the sorts of mistakes that seem to occur with a disturbing regularity.

So I propose three things, hoping they will provide long-term solutions:

First, that Mr. Ragulsky personally endeavor to have his staff participate in some form of training that addresses the intersection of journalism and diversity at least once every year.

Second, that the Student Media Committee take a more active role in overseeing the newspaper. As it stands, the committee is largely a rubber stamp, having little to no role beyond hiring for a mere seven positions for all of student media. Instead, the Committee members should have unfettered access to information, giving them them the ability to decide for themselves what information is relevant. As it stands, Mr. Ragulsky tends to control the flow of information to such a degree that it forces committee members to do his bidding.

Third, that The Daily Barometer institute a public editor to write columns detailing the internal decision-making processes of the newspaper, as well as receiving and responding to reader criticism of the newspaper. Such a position could provide a wonderful training tool for journalists and editors at a university with no official journalism program.

I suggest these things out of frustration and sadness at seeing a paper I have long been enamored of continue to make offensive, avoidable mistakes no matter who fulfills the role of editor-in-chief. I would like nothing more than to see The Daily Barometer take a more active role as a member of the OSU community rather than hide beyond decades-old ideas about the proper behavior of journalists.

A thought regarding the Lebanon School District

An observation: Sherrie Springer (and to an extent Jim Robinson) wield the advice from the District's legal counsel like a club.

Thing is, it's a club that no one outside the board ever sees. It's perpetually hidden, but everyone is told to trust that it's there and that it says what Sprenger says it does (yeah yeah yeah - I get that the whole board sees the advice, but that doesn't seem to matter to either the other board members or the public). I get the feeling that not only was the public's trust for Sprenger never very high, but that her use of this method has eroded it to just about zero. Possibly negative.

For example: Near the end of Monday's meeting, Sprenger cited the advice from legal counsel as a reason not to entertain the motion to let Kim Fandiño speak - but also cited attorney-client privilege as a reason not to explain the content of the legal advice. While Sprenger is technically correct (as evidenced by the fact that the rest of the board did the same thing even though it obviously disgusts them to have to do so), it leaves KF in the position of having been told no and yet not knowing why, which, despite the understandable legality, is an essentially unjust position.

Furthermore, it's an unjust position brought about by the intersection of two board policies - cyberbullying and the complaint procedures - complicated by the fact that LT is an anonymous blogger. I have to admit that so far I'm not happy with how the conflict between the policies has been handled, because I think it's been resolved in such a way as to cause maximum damage to Kim's position - and whether or not that's intentional on the part of district's legal counsel and/or Jim Robinson, it is being perceived as intentional and political. And while Robinson cannot control every perception of his actions (nor should he have to) it would seem in his best interest to reach out a little and do some P.R. on this one.

Robinson pointed out during the meeting (and this is referenced in this Express story) that by allowing Kim to have a hearing, he would risk violating district complaint policy.

It goes as follows: Kim filed her complaint at level three and moved it to level four when she appealed to the board. Robinson pointed out that she skipped levels one and two, both of which require notification and conversation with the person named in the complaint. Robinson then claimed that if Kim were to identify or claim to identify the blogger in her hearing, and the blogger turned out to be a district employee, Kim would have violated complaint procedure, thus causing an injustice to the employee.

Essentially, Robinson is claiming that allowing Kim a hearing regarding her complaint violating district policy would itself be a violation of district policy, and he and/or legal counsel have decided that the potential of violating the possible employee's complaint rights outweighs Kim's rights. Which is fine if one believes that no cyberbullying has occured, and that Kim should take her case to a civil court (which is what Robinson has said on multiple occasions).

HOWEVER, given that so many people - Kim, Debi, Josh, and Rick come to mind, as well as Ginger Allen and, I suspect, lots and lots of teachers - think that what LT has written is "cyberbullying" (it may be mean, but nothing I have read constitutes cyberbullying OR libel in my mind), Robinson and Sprenger's refusals to do anything but state their positions and ruthlessly use hidden legal advice to defend it is a very, very bad idea politically and PR-wise. It's going to cause the dislike and hatred of them to ratchet up another notch, undeserved or not, because the public perception is very clearly that Kim is not getting anything resembling justice out of this.

And if there's anything that matters in a place like Lebanon, it's that (punitive) justice gets done.

One last thing: I imagine that many of the folks involved in this case are not all that familiar with libel law or the difference between a public and private figure contained therein. I also imagine they are not used to having someone criticize their actions. While I understand that it can be very difficult to deal with what feels like a personal attack, what's going on in this district is nothing compared to what happens in larger locales where there is far more public scrutiny of the actions of public figures (which, like it or not, comes with the jobs of school board member and LEA President). At some point, one has to learn to evaluate criticism for any truth it contains, cull that truth and see if it's worth responding to in some fashion, and forget about the rest. Dwelling on what some anonymous blogger says about you is just stress that no one needs, and I say that without a trace of irony.