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Libel v. The First Amendment

Posted by Rick · August 24th, 2004 · 1 Comment

Anyone who has been reading my blog for awhile knows that I’ve frequently taken hardline stands in favor of the First Amendment. When people here have cursed me and called me names, I have not said “there ought to be limits to freedom,” as George Bush did when someone’s website made fun of him. Those curses, the name-calling and other pejorative statements have remained on my blog for all to read.

Furthermore, I have forcefully argued against anyone else — liberal or conservative — who would silence criticism, even if it simply involved name-calling, cursing and other non-intellectual forms of “argument.”

So hopefully, you will be curious to understand why I point out in this article that the First Amendment guarantees do not extend and, more importantly, voters cannot afford to allow them to extend to false defamatory statements when those statements are made with knowledge that they are false or with reckless disregard of whether they are false or not.

Perhaps the most famous line relating to the limitations on freedom of speech was written by Supreme Court Justice Oliver Wendell Holmes in the case of Schenck v. United States, 249 U.S. 47 (1919). Schenck had been convicted of conspiracy to violate the Espionage Act of 1917 by participating in the mailing of postcards to men subject to the draft. The postcards said,

If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain. Schenck, supra, 249 U.S. 47 at p. 51.

It further noted, “You must do your share to maintain, support and uphold the rights of the people of this country.” (Schenck, supra, 249 U.S. 47 at p. 51.)

In affirming the conviction, the Supreme Court opinion written by Holmes, citing Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 439 (1911), said,

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Schenck, supra, 249 U.S. 47 at p. 52.

The principle that not all speech is protected under the First Amendment has long been held to cover other types of speech, as well, including most notably obscene speech. This is why, although America’s appetite for hardcore pornography is unquenchable, you will not find hardcore pornographic publications at your local grocer. It’s also why in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the United States Supreme Court upheld the explusion of a student who gave a lewd speech at a school assembly.

Some speech, therefore, is unprotected because of the type of speech; some speech that might otherwise be protected loses its protection because of the location or venue of the speech. The lewd speech of Fraser, for example, was interdicted because it occurred during a high school assembly, where the school had adequately warned the student against such speech. Shouting “fire” in the middle of a street where there is no danger that crowds may crush themselves to death trying to escape, as in a theater, might not bring the full weight of the law down upon one’s head. But shouting “fire” in a crowded theater transforms the type of speech such that it creates a “clear and present danger,” which the government is entirely justified in preventing.

As noted the other day, in my article “New York Times re Kerry,” another type of speech that is not protected by the Constitution is speech which is defamatory.

So when Adam Sparks, writing on SFGate.com, pens a section entitled “Kerry vs. the First Amendment,” he misunderstands the law. And it does not matter that the speech offered by the Swift Boat Veterans for Truth may be deemed “political” speech, or speech critical of a political and public figure. Nor does it matter even if you think the publication of comments by the inaptly-named Swift Boat Veterans for Truth is protected under freedom of the press, as well as freedom of speech.

Besides the legal principles discussed in “New York Times re Kerry,” the case of Near v. State of Minnesota ex rel. Olson, 283 U.S. 697 (1931) makes it clear that politically-motivated speech may, under certain circumstances, not be protected under the First Amendment.

In Near, the County Attorney of Hennepin County, Minnesota, attempted to shut down a newspaper that had published editions,

. . . on September 24, 1927, and on eight subsequent dates in October and November, 1927 . . . which were “largely devoted to malicious, scandalous and defamatory articles” concerning Charles G. Davis, Frank W. Brunskill, the Minneapolis Tribune, the Minneapolis Journal, Melvin C. Passolt, George E. Leach, the Jewish Race, the members of the Grand Jury of Hennepin County impaneled in November, 1927, and then holding office, and other persons. . .. Near, supra, 283 U.S. 697 at p. 703.

The District Court found that The Saturday Press did, indeed, “engage in the business of regularly and customarily producing, publishing and circulating a malicious, scandalous and defamatory newspaper.” (Near, supra, 283 U.S. 697 at p. 706.) The Minnesota Supreme Court upheld the District Court’s judgment against the newspaper.

In overturning that judgment — and upholding the freedom of the press and freedom of speech in this case — the United States Supreme Court noted,

Liberty of speech, and of the press, is also not an absolute right, and the State may punish its abuse. Near, supra, 283 U.S. 697 at p. 708.

Specifically, the Court stated, “Remedies for libel remain available and unaffected.” (Near, supra, 283 U.S. 697 at p. 709.) The problem with Near, then, was not that freedom of speech permits the unfettered publication of any type of statement one might wish to make. The problem was with the “operation and effect” of the statute upon which Minnesota relied.

If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter — in particular that the matter consists of charges against public officers of official dereliction — and unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship. Near, supra, 283 U.S. 697 at p. 713.

The holding of Near, which is still good law, though circumscribed by New York Times v. Sullivan and its progeny, thus makes it clear that libel is not constitutionally-protected.

If all I was trying to do here was to say that the Swift Boat Veterans could not libel Kerry — that is, if my sole purpose were to support Kerry — there would be little point to this article. Frankly, for other reasons cited in Sparks’ article mentioned above, I have so far failed to make a definite statement of support for Kerry. Although I confess that I will not be voting for Bush, I have not yet decided if that translates into a vote for Kerry. Again frankly, I’m inclined to vote for the neophyte Edwards more than for Kerry, whom I see almost as a Bush-like “mini-me,” though perhaps without the blatant sell-out of America to large corporate interests. Kerry may benefit from my appreciation of Edwards.

The problem presented by the Swift Boat Veterans for Truth is much more significant, much bigger than, the problems they present for Kerry. The damage done by the Swift Boat Veterans for Truth to the political process is paramount. Were Democrats to make false defamatory statements about Bush with knowledge that they are false or with reckless disregard of whether they are false or not I would be equally vocal in calling for the President to sue them for libel.

Americans as a whole seldom elect anyone, including arguably the most powerful person in our country, based upon what he or she says, or even, usually, based on what he or she may do. The majority of the voting population places its bet — and that’s pretty much what it amounts to these days — based upon more emotive considerations. Just like the prettiest lotto card — or perhaps the one promising the bigger pay-out — gets the dollar in the supermarket impulse buy, so, too, is our President elected for reasons that have nothing to do with reality. (To fully appreciate the simile, keep in mind that the overwhelming majority of lottery tickets are empty promises; you’re virtually guaranteed to lose.)

Nevertheless, if there’s to be any hope of an election of the best candidate to the position, there must be some trust that the information brought out in the campaign is, in large part, true. When a slick ad campaign comes along, the voters who might actually be trying to use some other method than “eeny-meeny-miny” have to be able to count on the fact that what they’re hearing and seeing is not flat-out false, a knowing blatant lie aimed only at tarnishing its target. For while the Swift Boat Veterans may know that they are not, in fact, for Truth, a goodly portion of voters will not know that, even when other already-distrusted “news” organizations attempt to present the real story.

Shouting fire in a crowded theater is not protected by “freedom of speech,” because of the potential destruction to the hearers. So, too, should the laws against libel be enforced because of the potential destruction to the process of electing our leaders.

Special thanks to Chepooka for pointing me to the Sparks’ article.

Categories: Freedom of Speech


1 response so far ↓

  • 1 Rick // Aug 31, 2004 at 9:56 pm

    This seems relevant . . .


    The Bush White House has denied any connection to the Swift Boat Veterans for Truth[1] – the group that has been airing factually unsupportable smear ads against Sen. John Kerry’s war record. But a new report today shows that one of the key accusers in the smear ads was a lobbyist for a company that recently received a massive federal contract from the Bush administration.

    As the Washington Post reports, Rear Admiral William L. Schachte Jr., the man who claims Kerry was not under fire when he received his first Purple Heart, is a top lobbyist for a defense contractor that recently won a $40 million grant from the Bush administration. According to a March 18 legal filing by Schachte’s firm, Blank Rome, Schachte was one of the lobbyists working for FastShip’s effort to secure federal contracts.[2] On Feb. 2, FastShip announced the Bush administration had awarded it $40 million.[3]

    Schachte has other connections to the Bush administration. The Washington Post notes David Norcross, Schachte’s colleague in the Washington office of Blank Rome, is chairman of this week’s Republican convention in New York.[4] Records show that Schachte gave $1,000 to Bush’s 2000 and 2004 campaigns.[5] Additionally, Schachte helped organize veterans’ efforts against Sen. John McCain (R-AZ) and for Bush in the 2000 South Carolina primary.[6]

    This is not the first member of the Swift Boat Veterans for Truth who has been revealed to be connected to the President. The Bush-Cheney campaign’s top outside lawyer was forced to resign after he admitted providing legal services to the veterans group.[7] The Bush-Cheney campaign’s veterans adviser was also featured in one of the smear ads.[8]


    1. “Press Gaggle by Scott McClellan,” WhiteHouse.gov, 8/20/04, http://daily.misleader.org/ctt.asp?u=1222554&l=52656.
    2. “A Swift Shift in Stories,” Washington Post, 8/31/04, http://daily.misleader.org/ctt.asp?u=1222554&l=52657.
    3. “FastShip, Inc. to Receive $40 million in Federal Support for Marine Cargo Terminal in Philadelphia,” FastShipAtlantic.com, 2/02/04,
    4. “A Swift Shift in Stories,” Washington Post, 8/31/04, http://daily.misleader.org/ctt.asp?u=1222554&l=52657.
    5. OpenSecrets.org, 8/04, http://daily.misleader.org/ctt.asp?u=1222554&l=52659.
    6. Charleston Post & Courier, 2/17/2000.
    7. “Bush-Cheney Lawyer Advised Anti-Kerry Vets,” Washington Post, 8/25/04, http://daily.misleader.org/ctt.asp?u=1222554&l=52660.
    8. “Bush Campaign Drops Swift Boat Ad Figure,” Washington Post, 8/22/04, http://daily.misleader.org/ctt.asp?u=1222554&l=52661.

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