I agree with District of Columbia Federal Court court judge Laurence Silberman’s assessment that it is time the Supreme Court revisited New York Times vs. Sullivan regarding the treatment of public figures by the media. For those of you who don’t follow the court’s cases NYT vs Sullivan is the landmark case wherein public figures were set aside from the rest of us in libel and defamation law suits. While the ordinary citizen may file a suit alleging negligence causing defamation or libel a public figure (also up for interpretation by courts) must prove that the entity being sued meant to cause “malice.” Using this standard media, in all forms, have engaged in not just misreporting news but, in some cases, fabricating stories that involve public figures. If caught out all they are required to do is print a correction of the story which they will do in the least read section of the newspaper or the least watched time with the smallest audience on TV.
In revisiting NYT vs Sullivan we need to ask: why are public figures any less entitled to due process than every other citizen. Why did the 1964 Supreme Court carve out a separate category for those elected or appointed to office? Reading the majority opinion doesn’t convince me that logic was at play in the legal reasoning. Public figures must prove malice aforethought on the part of the media; Why? Shouldn’t proof of damage done be evidence enough? Making the injured prove that the injurer intended to do harm seems unfair. It’s like the difference between first degree murder and second degree murder; either one is murder, if you prove first degree then the death penalty comes into play, in some states. If the murder wasn’t intentional it’s still murder and the murderer receives a long prison sentence, in some states, in others not so much anymore. But harm done is harm done, whether it is to reputation, election chances, or any of a hundred other possible avenues of damaging a person and their future.
There shouldn’t be levels of libel or defamation depending or differing burdens of proof based on who you are just as there shouldn’t be protection from justice based on who you are. If we want fair elections and honest government we should remove the impediments that create tiers for suing for redress based on sex, color, creed, political persuasion, elected or appointed or any other discriminator that creates a different access to due process for protection of reputation and deed.