Supreme Court Versus Civility

Slander we have always with us (just ask Thomas Jefferson, who did not sleep with Sally Hemmings), but it is new that vile musings the likes of which have been spewed forth about Sarah Palin should cross from the lips of the low-minded and chatty into supposedly respectable news organs.

Like most of our societal upheaval, I lay this season's excesses at the feet of the Supreme Court, specifically NYT v. Sullivan, which destroyed the capacity of public figures to sue for defamation. Prior to that decision, it was dangerous to sling mud in print or on the airwaves (truth was always a defense). In Sullivan, however, the Court reversed the burden of proof from the defendant's obligation to prove the truth of his claim to the claimant's obligation to prove the defendant knew what he said or printed was untrue at the time he said or printed it.

Moreover, the Court basically decided that public figures have to lie back and take whatever's said about them. You & I can sue for defamation, but no one running for President can, no matter how vile the claim or how obviously without merit. And if the nasty cat-fight between you and me makes it to the papers? We also become public figures who lose our right to defend our names!

Effectively that means there is no legal redress for slander --and therefore every incentive to throw whatever mud we like and see what sticks. The law in this case has abdicated its responsibility to be a stay on unruly passions, instead encouraging them and affording them the protection of law.

The Court's reasoning was that --particularly in politics, where debate is necessary to the public good-- we want to be excruciatingly careful about curbing speech. Agreed. It's necesary in a free society to be able to say, "My opponent is a bastard" without being hauled into Court because everyone knows --and I did too--his parents were married. But the Court's solution --everything is permitted on free speech grounds-- is too broad, and has led us to this pass, where everyone talks about civil discourse, but few actually engage in it.