Month: February 2019

NY Times Case

NY Times Case

In this week’s segment of Cline on the Constitution I’m once again get distracted by the latest shiny object.  The interruption of my series on voting rights continues so I can discuss Justice Clarence Thomas surprising call for the Supreme Court to reconsider the famous New York Times v. Sullivan case, a case which gutted slander and libel laws. Because President Trump has made similar comments there has been much wailing, rending of garments, and gnashing of teeth over the danger to Freedom of the Press in News Rooms across the land. I’ve written about the subject before. It’s worth revisiting. 

There are some threshold distinctions. 

The Basics:  Slander is the speaking of “base and defamatory words tending to prejudice another in his reputation, office, trade, business, or means of livelihood.” You know, like all the stuff we read on the internet! 

First, slander and libel laws are not about suppressing freedom of speech.  Freedom of Speech has never insulated the right to speak falsely of another.  Slander laws protect against false statements. It is axiomatic that the Truth is an absolute defense to any suit for slander and libel. 

Second, slander and libel are two sides of the same coin.  Libel is merely the written form of slander. 

Third, liability (money damages) attaches to not only the original person who utters the slander, but any person or organization that repeats (re-publicizes) the slander. Therefore, if I falsely accuse you of a crime, not only I am liable for the harm I caused you, but the person who repeats the slander is also liable for damages caused by his republication.

Now for the case.  

The NYTimes case deals with public officials (and public figures, movie stars, athlete’s etc.)

Decided in 1964 (another 60’s case!) it held that false statements published by civil rights groups about an Alabama public official were protected first amendment expressions. It overturned a monetary award made to the public official libeled by the falsehood published by the New York Times. The brand-new rule fashioned by the Supreme Court in the case required public officials to show false statements made about them in the media were not only untrue but were made with malice, that is intentionally or with reckless disregard of their falsity.  (Good movie about this rule:  Absence of Malice with Paul Newman.)

This is a judicially created rule.  It did not exist before 1964.  Somehow the republic survived near 200 years without it.

And it has not been without controversy.  Even among the Justices of the Supreme Court.  Justice Byron White,in a 1974 opinion, criticized the reasoning in the New York Times case and wrote, “First Amendment values are not at all served by circulating false statements of fact about public officials.On the contrary, erroneous information frustrates these values.  They are even more disserved when the statements falsely impugn the honesty of those men and women and hence lessen the confidence in government.”

Justice White also said, “It is difficult to argue that the United States did not have a free and vigorous press beforethe rule in New York Times v Sullivan was announced.” 

There is one further distinction that needs to be made.  

It centers on the use of the phrase “freedom of speech” synonymously with the phrase “freedom of press.”  The first amendment as it relates to speech has two separate clauses (three if you include Assembly, but we will put that aside for now).  

Is Freedom of Speech and Freedom of Press actually the same thing?  Or are they two different concepts? 

The contrast in the writings of Justice Potter Stewart and Chief Justice Warren Burger elucidate the distinction.  The difference between Freedom of the Press and Freedom of Speech is that one is institutional, and one is personal.

Justice Stewart noted the Press is the only organized private business given explicit protection by the constitution.  He emphasized the business of the Press, as envisioned by the framers, is more about the dissemination of news than the expressionof ideas.  

Chief Justice Burger, on the other hand stated:

“The Speech Clause standing alone may be viewed as a protection of the liberty to express ideas and belief, while the Press Clausefocuses specifically on the liberty to disseminateexpression broadly and comprehends every sort ofpublicationwhich affords a vehicleof information and opinion.”

Chief Justice Burger did not believe the two phrases, Freedom of Speech and Freedom of Press were a redundancy.  Rather the Press clause merited special attention in the Bill of Rights because it had historically been the object of official restraints.  The framers especially abhorred the licensing of the Press by the government that was done in the English system.

Which leads us to the final basic questions:  Who is the Press?  And why in the world should they be protected in negligently disseminating false information that hurts someone?

So, who are the Press? The trite image of a news room as a hive of activity manned by sweaty virtuous reporters is no longer true—if it ever was. Modernly, the Press is not just newspapers and T.V., not just periodicals and circulars.  It includes the blogger, the commentator on YouTube, the purveyor of podcasts, Facebook, Instagram, and, of courage, Twitter.  In fact, many reporters from media outlets use each of these platforms to report the news.  It’s easy, it’s fast.  And it is also often wrong.  Plus it is extremely easy to introduce a totally false story into the news stream and have it be picked up and reported, and re-reported, and re-reported ad infinitum, by the mainstream media including the self-same NYTIMES. 

Likewise, it cannot by gainsaid that the Press today are often run by large national, even multi-national corporations.  Editorial polices and stories in most local newsrooms, including our own, are selected and driven by corporate headquarters in Washington, New York, Los Angeles, and Sacramento.  

Which brings us to crux of the matter.  Should these huge corporate entities be held to a standard of due care in putting out false information about people?  Is it ok for them to be negligent?  To damage people with false stories?  Not to have to be careful?  To check something out before publishing it and then having it published and republished forever?  Because the internet is forever.   

Because that is one other difference in modern times.  The republication of false stories on Social Media platforms like Facebook, Twitter and the rest.  Should they not held responsible for vicious lies about real people spread on their platforms?  Because the NYTIMES case eliminated any restraints on their republication of false slander too.  And remember we are talking about information that is demonstrably false.  The truth is an absolute defense to Slander.  

And, you know, it’s not like they can’t afford it.

Reminds one of the auto industry.  Once upon a time that industry felt they could make their Billions on products we had to have and if the product was inferior and dangerous and hurt people because the corporate giants couldn’t be bothered to make cars safe, well, too bad. Fortunately, there were no NYTimes case to Shield them from being held responsible. The laws of liability for their negligence required they change their behavior and be more careful. And they did.

So should News organizations and Social Media platforms be held to a duty of due care before they publish false information?

When one trades in information, just like any other trade, there is a duty to be responsible in making an effort to insure the damaging information is not false. 

The NYTimes case is a judicially created rule.  Times have changed since the 1960s. Justice Thomas’s call for it to be re-considered is prudent and timely.

For more writings by Phil Cline, visit philcline.com

Emergency Orders

Emergency Orders

In this week’s segment of Cline on the Constitution, I decided to pause in my review of voting rights cases to consider the President’s recent actions concerning our Southern Border.

The President’s declaration of an emergency and his orders to transfer funds to construct barriers on the Southern Border has generated extensive commentary on the legality of his actions as well as whether they are constitutionally permitted.  

How will the President’s orders fair in the Courts?  

As has become routine anytime this President seeks to exercise his Executive Powers there has been a rush to the microphones and threats launch a battery of new lawsuits. California’s own Attorney General couldn’t wait.  Instead of addressing the significant uptick of crime in our state, he consistently spends most of his time and huge sums of taxpayer dollars suing the federal government on behalf of non-citizens.  

The usual shoving and pushing to get in front of T.V. cameras, aside there are two questions from a Constitutional perspective about emergency orders.  First, does the President have authority to issue such an order.? The declaration is not the big thing, the orders made pursuant to the declaration are the issue. Second, and I think ultimately this is the most important, do federal district court judges have the authority to prohibit the actions before they are taken?

Article II provides that “The Executive Power shall be vested in a President of the United States of America.”  It was placed there to correct a weakness in the original Articles of Confederation.  The constitution also specifies that the President “Shall take care that the laws be Faithfully Executed.”  Taken together that is a very broad delegation of power.

The Supreme Court has recognized that in order to carry out the duties of his office the President has certain inherent powers.  Executive orders are deemednecessary tools to execute the functions of the office.  

In fact, they have the force of law if placed in the Federal Register.  

There are limits. Executive orders may not impinge on the functions of the other branches of government, on the constitutional rights of citizens nor on the powers reserved to the States. 

The most potential for conflict arises in the context of a National Emergency; those times when a President concludes an Executive Action is necessary to defend the country from an “existential” threat.  One of the most famous (or infamous if you will) was President Roosevelt’s executive order requiring the internment of citizens of Japanese decent in internment camps during World War II.  

During the Civil War, President Lincoln made wide use of Executive orders and regularly trampled individual liberties both in the South and the North. He justified his actions under what he maintained were broad presidential powers to put down an insurrection. Significantly, when his unconstitutional order to suspend habeas corpus was quashed by a court he adroitlyasked, “Is it possible to lose the nation and yet preserve the constitution?”   

Though sometimes the language, tactics and lawlessness used by the radical left in this country at times take on the characteristics of an insurrection, we are not there.  At least not yet. 

But the question Lincoln asked encapsulates the dilemma facing the leaders of our country in times of great peril.

The Supreme Court’s approach to such questions of is to employ a formula from the Youngstown Steel case decided in the 1950s. During the Korean War President Truman seized steel mills whose production had been crippled by a strike.  The Steel was necessary, he argued, to support the war effort in Korea.  Congress had passed a resolution opposing his expected seizure of the mills.  

In a concurring the opinion overturning the seizure, Justice Jackson (who had been a lead prosecutor during the Nuremberg Trials in Germany), wrote that the legality of a President’s actions is at the highest when he acts in accordance with powers granted him by the Congress or expressly by the Constitution.  On the other hand “his power is at its lowest ebb”; when he acts against the express or implied will of Congress. 

In 1976, the Congress granted the President the power to declare an emergency and the power has been used numerous times by President from both parties.  

Significantly the Congress left it up to the President to determine what the definition of an Emergency is in a particular case.  If, the President is acting in accordance with that legislation he would seem to be on solid ground.  His position may have been stronger had he acted before agreeing to allow Congress to negotiate, however.   Ironically,  his waiting may have undermined his argument that an emergency required him to act.  

The second question concerns how the matter will be handled by the Federal Courts. 

As the President himself has stated, everyone expects some federal district court judge somewhere will grant a universal injunction stopping the Executive action unless and until it can be brought before the Supreme court.

There is a rather obvious problem.  We have over 600 federal district court judges in the country.  Is it now necessary to get pre-approval for any executive action by all 600?  Not exactly how the framers envisioned the judicial role.  

In Trump vs. Hawaii decided last year and which upheld the President’s “Travel Ban” Justice Thomas, in a brilliant concurring opinion, called on his fellow justices to put an end to the practice of lower federal court’s issuing universal injunctions. 

“These injunctions”, he wrote, “are beginning to take a toll on the federal court system preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the executive branch.”

He went on to review the history of a court’s power to issue extraordinary writs that came down to us from the old equity courts of England. The matters were debated in the Federalists and Anti-Federalists’ papers ending with the conclusion of Hamilton that the “constraints” of their duty to only decide the cases that came before them obviated the danger the courts would grab too much power. 

Justice Thomas pointed out that universal injunctions not only do not comply with the principles set out by the framers, but only emerged for the first time in the 1960s.  (where have we seen that before?!) and “dramatically increasing in popularity only recently.”  

In those years, he said, “some jurists began to conceive of the judicial role in terms of resolving general questions of legality, instead of addressing those questions only insofar as they are necessary to resolve individual cases and controversies.”  Which is, by the way, jurisdictional.  Under the Constitution the courts are only allowed to decide cases and controversies before them, not general questions of policy. Universal injunctions, the Justice opined, “appear to conflict with the original understanding of the judicial role.” 

After considering the various arguments made in their support, he concluded there is no constitutional authority for the use of universal injunctions. “But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power.  That at best “boil down to a policy judgement” about how powers ought to be allocated among our three branches of government.” But the people already made that choice when they ratified the constitution.”  

He concluded “In sum, universal injunctions are legally and historically dubious.  If federal courts continue to issue them, this Court is duty bound to adjudicate their authority to do so.”

In the final analysis, whether the caravans of illegals being organized and directed toward our Southern Border constitute an “emergency” may not be the most important question for the court to decide.  Instead it may be constraining the unconstitutional expansion of power by the federal courts. That may be the most important emergency of all. 

For more writings by Phil Cline, visit philcline.com

Voting, Part Two

Voting, Part Two

In Abbott v. Perez, The Supreme Court slapped a federal district court with a much-needed douse of cold water in an attempt to wake them up, force them to embrace reality for once and have them return to their lane in the governance scheme set out in the Constitution.  Abbott is the second case on voting decided by the Supreme Court last term I wanted to bring to your attention.  It is one of a series of cases which seem destined to set up a blockbuster decision on Gerrymandering most scholars anticipate will be decided this term. 

This case involved a redistricting plan. Under the Constitution re-drawing district lines for congressional offices is a power left to the States and not delegated to the Federal Government.  However, the Equal Protection Clause of the Fourteenth Amendment passed after the Civil War, forbids “Racial Gerrymandering.”   And under the express power to legislate enforcement of the Fourteenth Amendment the Congress passed the Voting Rights Act.

After the 2010 census, the Texas State Legislature set out to redraw district lines.  

A plan was passed in 2011 but was tied up in court and never used.  In 2013, after the Shelby decision (discussed in a previous post) invalidating part of the Voting Rights Act, the state legislature attempted to resolve the issue by approving a redistricting plan modeled on one the district court itself had approved.  But, of course, that plan was also attacked. As the Supreme court said, “The Legislature had reason to know that any new plans it devised were likely to be attacked by one group of plaintiffs or another.”  Sadly, that is a modern truism about any attempts to govern by a legislative body. Somebody is going to sue, and some federal district court somewhere is going to figure they know better how to govern than those elected to do the governing. 

In yet another example of overreaching arrogance by a lower federal district court where no action of a government ever seems to be satisfactory, this new plan was struck down because the federal court decided the State had not satisfied the court of their good intentions.  

In an opinion crafted by Justice Alito, the Supreme Court did two things which to one unschooled in the law may seem minor, but which any lawyer will recognize as important.

First, it reversed the lower court’s assignment of the burden of proof.  Instead of placing it on the government, it placed it back where it belongs with the plaintiff, the person or entity bringing the law suit. The lower federal court without any authority to do so had decided the government had to show that they had somehow “purged” and “cured” the taint of the 2011 plan, a plan that had been “alleged” to be discriminatory and a plan that wasn’t even used.  The lower court went further and in a brazen display of judicial interference in the legislative sphere, it required the legislature to conduct its deliberations in a way the court approved.  Reminds one of a court requiring a showing that the taint of a statement by a candidate in an election must somehow be cured before the court can even read, much less consider the actual legislation before it.  It’s like federal courts see themselves as high priests requiring a trip to the confessional by the other supposedly co-equal branches of government for an expiation of sinful thoughts.  

Second, the Supreme Court confirmed the principle that should always apply to official actions by those democratically elected to govern.  That is that their acts are presumed to have been done in good faith. The federal court erred in ignoring the evidence that in fact the Texas state government had acted in good faith.

In applying the law to the case, the Court reiterated the general rules regarding redistricting challenges.  It must be shown by the person or entity attempting to block the redistricting, 1) is  a geographically compact minority population, that is a majority in the district.  2) There is political cohesion among members of the group and 3) bloc voting by the majority is taking place to defeat the minorities preferred candidate.  And after all that, then the plaintiff must prove under the totality of circumstances the district lines dilute the votes of the minority group.

In the Abbott case, the tests were not met.  And it was plaintiff’s burden to make the showing. In other words, to prove what they alleged.

In elections across the land, attempts to draw district lines face multiple challenges no matter what efforts the local government expends to do the redistricting in a fair way. Statistical models are used and provocative language about voter suppression and racism are inevitably pressed at every opportunity.  That is all find and dandy.  So be it.  

But in Abbott the Court reaffirmed a basic principle.  It is one we should be applying in our general public actions and statements. If you allege it, then, by God, prove it!  

Don’t accuse a person of something and then adopt the presumption that it must be true.  Don’t require a person prove they didn’t do the wrong or, worse, think the wrong thoughts at the wrong time.  No.  It’s your allegation.  Prove it. It’s the legal equivalent of saying, “Put up or shut up.”