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Friday, September 30, 2022

Can’t Take The Heat? Get Out Of The Election!

Commentary
By Gary Kopycinski

After attending a mayoral debate in Park Forest, IL, Sunday afternoon, I have to wonder if the challenger to the incumbent has ever read the New York Times v. Sullivan Supreme Court Case, decided in 1964:

Has this mayoral challenger or his legal team (the challenger said, Sunday afternoon, that he had lawyers watching), apparently never read the 1964 Supreme Court decision The New York Times Co. v. Sullivan?

Anyone considering a run for public office of any kind should read it before circulating peititions. Here’s the basic issue, directly from the decision, written by Supreme Court Justice William J. Brennan, Jr.

Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate petitioner’s newspaper, the text of which appeared over the names of the four individual petitioners and many others. The advertisement included statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police department.

L. B. Sullivan was one of the three elected Commissioners of the City of Montgomery, Alabama. He brought civil action against four black Alabama clergymen and the New York Times. A jury in the Circuit Court of Montgomery County awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. Sullivan claimed that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, 1960. Entitled “Heed Their Rising Voices,” the advertisment stated the following:

 

“As the whole world knows by now, thousands of Southern Negro students are engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.”

It went on to charge that,

“in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom. . . .”

Succeeding paragraphs purported to illustrate the “wave of terror” by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, “the struggle for the right to vote,” and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery.

The third and sixth paragraphs of the ad were Sullivan’s libel complaint:

Third paragraph:

“In Montgomery, Alabama, after students sang ‘My Country, ‘Tis of Thee’ on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to reregister, their dining hall was padlocked in an attempt to starve them into submission.”

Sixth paragraph:

“Again and again, the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home, almost killing his wife and child. They have assaulted his person. They have arrested him seven times — for ‘speeding,’ ‘loitering’ and similar ‘offenses.’ And now they have charged him with ‘perjury’ — a felony under which they could imprison him for ten years. . . .”

You could argue that Sullivan was already on thin ice with this suit. His name never appears in the advertisement. Sullivan disagreed:

Although neither of these statements mentions respondent by name, he contended that the word “police” in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of “ringing” the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission. As to the sixth paragraph, he contended that, since arrests are ordinarily made by the police, the statement “They have arrested [Dr. King] seven times” would be read as referring to him; he further contended that the “They” who did the arresting would be equated with the “They” who committed the other described acts and with the “Southern violators.” Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King’s protests with “intimidation and violence,” bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as Commissioner.

The Supreme Court rejected Sullivan’s arguments, holding “A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves ‘actual malice’ — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. “

The key here is “actual malice.” Was there actual malice involved? SCOTUS said no, and this decision has been the standard-bearer for all cases that followed.

In short, to paraphrase a colleague of mine, you would have to falsely accuse a public official of something absolutely horrible, like infanticide, say that you know it is true, that you have seen proof — all the while knowing that what you are saying is a damn lie. Like it or not, public officials are considered “public property,” and the public can say almost anything at all about them, true or false, and face no consequence for doing so.

From SCOTUS again:

In Beauharnais v. Illinois, 343 U. S. 250, the Court sustained an Illinois criminal libel statute as applied to a publication held to be both defamatory of a racial group and “liable to cause violence and disorder.” But the Court was careful to note that it “retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel”; for “public men are, as it were, public property,” and “discussion cannot be denied, and the right, as well as the duty, of criticism must not be stifled.”

In essence, you’re main limitation on what you can and cannot say about a public official is your conscience. The law will let you say a lot.

Did you ever wonder why some politicians running for office say the most awful things about their opponents and get away with it? Despicable and lowly as this behavior is, it’s becuse they can. If you don’t like their behavior — and you shouldn’t — then campaign against them.

If you’re running for office and this bothers you, then get out. Right now, get out of the heat. Get out of the kitchen.

You may not like what New York Times Co. v. Sullivan has to say, but her threats are baseless. Does this mean that she can’t file a lawsuit, force a blogger to retain an attorney? Does this mean that no judge will take the case? Absolutely not. Our courts are full of baseless lawsuits, and we watch the most ridiculous lawsuits for entertainment on television. Ask Judge Judy.

Again, from SCOTUS:

We reverse the judgment. We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.

Look, You can sue anyone you wish, making life absolute hell for them in the meantime.

But if you are an elected official, or a candidate for elected office, it doesn’t matter.

You are public property, and, short of saying that you kill and eat babies, and, whoever is saying this has proof of your nefarious alleged actions, you can do nothing.

You are public property once you decide to run for office.

Don’t like what people are saying about you?

Get out of the kitchen.

That’s what NYTimes v. Sullivan decided in 1964.

Gary Kopycinski is editor and publisher of eNews Park Forest and a village trustee in Park Forest. He is also a candidate in the April 7, 2015 consolidated election in Park Forest. His reporting is his own. eNews Park Forest, Inc. is an independent media company and is not affiliated with the Village of Park Forest in any way.

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