An excellent example…

…of how to take a real person and their own words and still construct a strawman argument.  If you're into that sort of thing, anyway.

Geoffrey R. Stone at the Huffington Post begins by erecting a few mirrors:

To fully understand the practical importance of New York Times v. Sullivan, it is important to consider the historical context. At the time of the decision, the South was in the throes of the civil rights movement. Southerners were deeply concerned about public opinion in the rest of country. The more the national media covered civil rights protests in the South, the more public opinion turned against those who were seeking to preserve segregation. Strategic lawsuits for libel brought by public officials against the national media for technical misstatements in news reports about civil rights protests were intended to deter the national media from covering the civil rights movement. This strategy was made especially effective because Southern juries were inclined to grant excessive damage awards against those who were embarrassing the South. In 1964, there were many similar actions pending against the New York Times in the South. The Supreme Court was acutely aware of this state of affairs, and that awareness no doubt led the justices to give the case the attention it deserved.

The historical context is always interesting and needs to be understood, as a matter of history.  But in a courtroom, it should actually play little or no role.  That is, if we believe in such things as equal protection under the law and judicial restraint.  To achieve that, principles must be staked out and adhered to without regard to the persons, places or times. The point of this is not to give the reader any necessary information required to understand the case, but to invite the reader to join the Warren court in its justification for not upholding principles in order to serve the "needs" of the time.

Then for the smoke, he focuses on an error of fact in Justice Scalia's statement.  The Justice refers to New York law and the New York legislature in describing why he believes the finding of the Court in New York Times v. Sullivan was incorrect.  The case was in regards to Alabama law.  Knowing that, one simply need substitute "Alabama" for "New York" in the statement in order to get the actual point. 

New York Times v. Sullivan just cast [the traditional common law of libel] aside because the Court thought in modern society, it'd be a good idea if the press could say a lot of stuff about public figures without having to worry. And that may be correct, that may be right, but if it was right it should have been adopted by the people. It should have been debated in the New York Legislature and the New York Legislature could have said, 'Yes, we're going to change our libel law.' But the living constitutionalists on the Supreme Court, the Warren Court, simply decided, 'Yes, it used to be that … George Washington could sue somebody that libeled him, but we don't think that's a good idea any more.'

But the actual point is not what interests Mr. Stone.

In Justice Scalia's view, then, the critical question is whether the Framers of the First Amendment at the time understood the provision as embracing the rule of New York Times v. Sullivan. If not – and clearly they did not understand the Amendment in that way in 1790 – then that ends the matter. The Constitution has nothing to say about the issue in New York Times v. Sullivan and it's up to the people of New York to change their law, if they want to do so.

There are many things wrong with this argument, and with originalism generally, …, but I want to focus on one point in particular. Justice Scalia suggests that the solution to the problem in New York Times was for the New York legislature to change its libel law. But the New York legislature had absolutely nothing to do with this situation. This was a lawsuit in Alabama, decided under Alabama law by an Alabama jury. The New York legislature was completely powerless to affect the matter in any way.

He then takes that last statement and uses it to justify the Warren Court's finding.  Understand this; an error in the statement of the facts, and an apprehension of that that may or may not be willful, can be used to justify a decision 47 years after the fact?

It was precisely this fact that made a constitutional decision necessary. It's bad enough that Alabama wants to censor what its own citizens can read, but what the situation in New York Times v. Sullivan demonstrated was that the nation cannot constitutionally allow each state to censor speech on its own, because in a national marketplace of ideas censorship in one state effectively precludes the press from distributing news to people nationally. Although only a few hundred copies of that issue of the New York Times actually found their way into Alabama, that gave Alabama sufficient leverage to impose a huge penalty on the Times that was designed to deter it from writing negative stories about the South generally.

But all of that completely aside, the most egregious error in Stones' analysis, is the deliberate misstatement of J. Scalia's position on the matter.  Despite accurately quoting the Justice above; "New York Times v. Sullivan just cast [the traditional common law of libel] aside because the Court thought in modern society, it'd be a good idea if the press could say a lot of stuff about public figures without having to worry. And that may be correct, that may be right, but if it was right it should have been adopted by the people," 

In Justice Scalia's world, the New York legislature could do nothing to protect the right of its citizens to be informed, the national government could do nothing to protect the New York Times (and all other national news outlets) from such censorship, and as a result citizens throughout the nation would have their capacity to learn and to understand their own nation squelched by the State of Alabama. The Supreme Court in New York Times quite correctly concluded that such an outcome was profoundly inconsistent with what the Framers of the First Amendment had in mind. 

Nowhere did J. Scalia say that the legislature (of whichever state) could do nothing.  Only that they had done nothing.  The Justice also never states any opinion as to hwo he, if writing for the court in 1964, would have found–he may have found an argument that would have been judicially correct and still achieved the same or similar result, he may have dissented, or abstained.  Stone, unjustifiably, presumes the dissent.

In order to avoid Stone's primary and most visible error, again, we have to replace "New York" with "Alabama." This makes the statement false on it's face (ignoring also that this legislative action would protect the rights of citizens to be misinformed albeit with regard to "technical misstatements") even if 1964 Alabama would likely have been loathe to take such legislative steps–and that's the crux of the Warren Court's justification–to act legislatively where the legislature would not and the conclusion that Mr. Stone really wants us to accept.

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