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Ron DeSantis Comes for the Free Press
Plus: Nikki's running! So what?
Nikki’s running and, as Sarah Longwell writes this morning, she’s the perfect candidate. For 2015.
On paper, Nikki Haley should be a top-tier contender in the 2024 Republican primary. She’s a successful former governor from an important, early primary state. She has an impressive personal backstory, solid foreign policy chops, and great candidate skills, too. This used to be an extremely attractive package for GOP primary voters.
Used to be.
But not anymore.
Instead, Haley’s candidacy represents the best of the “meh” middle tier of 2024 candidates, which for now includes the likely notional campaigns of Mike Pence, Mike Pompeo, and Chris Christie. No one is really asking any of those guys to run. But they don’t have anything better to do. So they’ll eventually put exploratory committees together and take a joy ride that may or may not make it to Iowa.
And Haley, despite how good she is on paper, finds herself in that same tier: No one is asking for what she’s selling. Why is that?
Meanwhile, Trump continues to compare the FBI to the Gestapo, and Ron DeSantis keeps playing the greatest hits from the Agnew/Trump playbook.
Happy Valentine’s Day, for those of you who observe.
DeSantis’s assault on press freedom
It is hardly breaking news that Ron DeSantis wants to go to war with the press. His relations with the local media range from hostile to press-conference-insult-dog; and he seems intent on matching Donald Trump’s obsessive loathing, if not his theatricality, for “fake news.”
But now DeSantis is launching a more substantive attack on press freedoms, and it would be naïve to brush off its implications.
Last week, the Florida governor staged a slickly produced event targeting the “legacy media” which he complained had divorced itself “from truth and instead try to elevate preferred narratives and partisan activism over reporting the facts.” Via the NYT:
But the panel’s message was as notable as its slick presentation: Over the course of an hour, Mr. DeSantis and his guests laid out a detailed case for revisiting a landmark Supreme Court decision protecting the press from defamation lawsuits.
Specifically, DeSantis was pushing the Supreme Court to overturn the 1964 ruling, known as The New York Times Company v. Sullivan, which ‘set a higher bar for defamation lawsuits involving public figures, and for years it was viewed as sacrosanct.”
During the panel discussion on Tuesday, Mr. DeSantis accused the press of using Sullivan as a shield to intentionally “smear” politicians and said the precedent discouraged people from running for office. Would the current Supreme Court, he asked the panelists, be “receptive” to revisiting the case?
DeSantis is seizing on the issue almost four years to the day since Justice Clarence Thomas suggested that the landmark ruling be scrapped. That same day, lawyers for 16-year-old Covington High student Nicholas Sandmann filed a $250 million defamation suit against the Washington Post. And, naturally, DeSantis made that case a centerpiece of his attack last week. (Don’t expect much originality here.)
As I wrote back then, conservatives should be careful what they wish for.
Under Times v. Sullivan, public officials must prove that a media outlet acted “with actual malice” in publishing false information. A unanimous court cited America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Mere errors would not suffice; litigants would have to prove that the media published information “with knowledge that it was false or with reckless disregard” for the truth.
Justice Hugo Black wrote a concurring opinion joined by Justice William O. Douglas that would have gone even further. “An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment,” he wrote. “I regret that the Court has stopped short of this holding indispensable to preserve our free press from destruction.”
Despite Black’s disappointment, that ruling has been one of the pillars of press freedom for more than half a century. Times makes it extraordinarily difficult for any public official or political actor to win damages in a court of law. And that, of course, has been a source of frustration for political actors for decades.
Back in 2019, Justice Thomas filed a brief concurring opinion in a case involving one of Bill Cosby’s accusers (in which he was joined by no other justice), declaring “there appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.”
Rather, he wrote, the case and the “the court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”
“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Justice Thomas wrote. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.”
At least for the time being, I wrote back in 2019, Thomas appeared to be an outlier. But it would be a mistake to ignore the threat. Experience suggests that it is naïve to think that gutting the libel laws would affect only statements of fact or would be used simply to target egregious errors. In an age of ideological and cultural hand-to-hand combat, the lines between fact, opinion, and analysis can quickly blur.
I made a pretty safe prediction back in 2019:
Given the right’s antipathy for the media, his attack on Times v. Sullivan will get traction in conservative circles, and more quickly than you might think. In fact, it may have been the opening shot in what will be one of the most serious challenges press freedom has faced in decades.
Trump was already leading the campaign:
Thomas’s criticism of the court’s precedent also echoes and magnifies Trump’s own hostility to the court’s jurisprudence. (It also reminds us that Thomas’s activist wife is tight with Trump World.)
Trump has denounced the current state of libel law – governed by Times v. Sullivan as “a sham and a disgrace,’ complained that it does not “represent American values or American fairness.” Throughout the 2016 campaign, Trump suggested that he wanted to “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
Now DeSantis has joined the chorus, making it more likely that (1) it will be an issue in the 2024 campaign, and (2) embolden judicial conservatives to renew their push to erode Sullivan.
What could possibly go wrong? Four years ago, I warned about the ‘Conservative Temptation.”
This will be immensely appealing to Trump’s conservative base. As Trump has learned, attacking the “fake news media” is the reddest of red meat and has the added advantage of feeding his own obsession with discrediting his critics. Having marinated in distaste for the media for years, conservatives will be tempted by the opportunity to strip the press of its legal protections.
But embracing the Trump/Thomas position would be a dangerous and ultimately self-defeating mistake. It would also be an ironic retreat on the issue of free speech. In recent years conservatives have embraced the First Amendment to push back against the stifling environment on some university campuses; and have adopted sweeping interpretations of its protection on free speech to invalidate a host of campaign finance laws.
In the very recent past, conservatives were appalled and outraged by suggestions that the federal government restore the Fairness Doctrine as a way of regulating and reining in conservative talk radio. They rightly saw the doctrine as restoring a form of “speech police,” who could be used to chill and harass the expression of unpopular (read conservative) opinion.
Pre-Trump, conservatives understood that their support for a free press was based on both principle and prudence. A weapon that can be used to shutter liberal media outlets can just as easily be turned against conservative activists, publications, and outlets.
Lawsuits are unlikely to put the New York Times or CNN out of business, but can the same be said of outlets like Breitbart, the Drudge Report, or the Daily Caller?
Billionaire litigants could make life miserable for Jim Acosta or Rachel Maddow; but billionaires on the left could also bankroll devastating legal attacks on talk radio hosts and right-leaning bloggers. The schadenfreude on both sides would be exceptional, but the price tag for democratic debate would be catastrophic.
So conservatives will once again face a choice in the Age of Trump, and this one may be distasteful for some, because they would be siding with the folks in the media they have been taught to loathe.
But this is the price of freedom and it is the genius of the Constitution that they claim to revere. By all means, conservatives should continue to criticize media malpractice when they see it; but they also need to reaffirm their support for “the principle that debate on public issues should be uninhibited, robust, and wide-open.”
It was, after all, Ronald Reagan who declared: “There is no more essential ingredient than a free, strong and independent press to our continued success in what the Founding Fathers called our ‘experiment’ in self-government.”
Give it a listen:
1. ‘He’s Got a Knife—Kill Him!’
In today’s Bulwark, Bill Lueders writes that not everything that makes police dangerous comes from culture. Some comes from the law—and the way cops train to operate within it.
Anthony Lowe was clearly trying to get away; there was no chance, really, that he would succeed.
The 36-year-old California man can be seen on cell phone video leaving his wheelchair behind and hobbling along on the stumps that constituted, as one news account put it, “what remained of his legs.” He can be seen waving a large knife, pursued by police with guns drawn. As other video seems to show, he had just used the knife to stab another man from behind.
Lowe, a black man, was a double amputee, having lost both legs below the knees last year. I use the past tense “was” because two of the officers, in a part of the videotaped encounter that was obscured from view by a parked vehicle, shot him 11 times in the torso, killing him.
2. Hope for Ukraine, Hope for the West, Hope for Democracy
Via Cathy Young: A conversation with Natan Sharansky and Bernard-Henri Lévy.
On Sunday afternoon in lower Manhattan, the now-familiar call Slava Ukraini!—Glory to Ukraine!—sounded in a packed auditorium of the Museum of Jewish Heritage—a location whose very nature, in a sense, challenges the propaganda tropes Vladimir Putin’s regime has used to justify its war against alleged “Nazis” in Ukraine. The museum, and the Jewish magazine Tablet, hosted an extraordinary conversation about Ukraine and the future of freedom between two towering figures associated with freedom’s cause in the twentieth and twenty-first centuries: Natan Sharansky, the ex-Soviet Jewish human rights activist who spent nine years in Soviet prison camps for championing the right to emigrate to Israel, and Bernard-Henri Lévy, the French intellectual and globetrotting public activist who has made various battles against tyranny and barbarism—in the former Yugoslavia, in Kurdistan, and now in Ukraine—his personal cause. Slava Ukraini! happens to be the title of Lévy’s just-completed documentary, the sequel to last year’s Why Ukraine? (which I wrote about in these pages). Sharansky has his own personal connection to the current events in Ukraine: he was born in Donetsk, the hub of the Kremlin-sponsored “insurgency” in Ukraine that served as the prelude to the current war.
3. What the Super Bowl Taught Us About Families
It goes without saying that these two are great athletes, but in this age of angry, rootless young singles and bizarre incels joining online cults, they are also role models, at ages 24 and 27, of what grounded, mature men should be. Both had dedicated parents with high standards. It’s not that complicated. Parenting is the key to nurturing responsible, admirable citizens.