New York Times v Sullivan Faces Challenge amid Changing Judiciary, Emboldened Racists

Manitowoc County Sheriff Lt. Andrew Colborn (ret)
has included an argument in his federal defamation
suit against the creators and distributors of Making a
Murderer that seeks to eviscerate First Amendment
protections exemplified in the First Amendment
case, New York Times v Sullivan.

Update: Trump calls for new accusers of Justice Kavanaugh to file suit for libel, and for U.S. Justice Dept to "rescue" embattled judge, (Newsweek).
 --
Madison, Wisconsin — "One of the things I'm going to do if I win, ... I'm going to open up our libel laws so when they [the press] write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws," blustered Donald Trump in February 2016, (The Politico).

Trump repeated his views on modern libel law doctrine after taking office because apparently he was not informed there are no federal libel laws that he can "open up."

Further, holdings of the landmark Supreme Court case, New York Times v Sullivan (1964), prevent an aggrieved government official from winning "lots of money" and prevailing in a civil action against citizens expressing opinions deemed caustic, unorthodox or irreverent, for example, toward our 'leaders.'

So, why worry? Trump is a lunatic, and whatever fantasies he manages are tempered by the reality of long-won legal victories holding malicious public officials in check.

The First Amendment freedoms of the press, speech and expression with which Trump is actually quarreling offer the most powerful protection in the world to people voicing thought at variance with  public officials' assessment of their character and performance, (ACLU, Jan 2018; NYT, Feb 2019).

Trump's desire to litigate against the authors and publishers of prose written at Trump's expense seems little more than the wish of a half-wit pining for the 21rst century equivalent of the Sedition Act that criminalized writings thrusting government officials into disrepute.

Today, the Federalist Society, Republican senators and Donald Trump work assiduously to transform the federal judiciary into an adjunct arm of the Republican Party, white Evangelicals and corporate special interests, a la the corrupt Wisconsin Supreme Court.

Challenges to foundational cases codifiying American liberties are bubbling up through the federal judiciary.

And, Trump has "appointed nearly one in four of the nation's federal appeals court judges and one in seven of its district court judges," all activist ideologues vetted for their fidelity to an authoritarian and ahistorical jurisprudence, reports Carrie Johnson at National Public Radio.

Further, two of nine Trump-appointed justices serve on the Untied States Supreme Court forming a five-four majority of hyper-activist judges working for the interest of the Republican Party.

It is in this milieu that we ought to be concerned about Republicans on the United States Supreme Court hollowing out our liberties generally.

The Trumpist hostility against the press has escalated into a political assault against the journalists themselves. Reports the New York Times: "A loose network of conservative operatives allied with the White House is pursuing what they say will be an aggressive operation to discredit news organizations deemed hostile to President Trump by publicizing damaging information about journalists. ... [Poiltical] operatives have compiled dossiers and research that is "said to extend to members of journalists’ families who are active in politics, as well as liberal activists and other political opponents of the president."

Specifically, current efforts to ultimately convince the United States Supreme Court to revisit New York Times v Sullivan should be considered in light of the struggle between those who see human beings as instruments and often enemies of the State, and those who see the State as an instrument of human beings.

Crazy, crazy. It's rightwingers.

Cases in three different regional appellate circuits — Second, Sixth and Seventh — feature rightwing plaintiffs intent on revisiting Sullivan, the eloquently written opinion codifying First Amendment rights of the press, speech and expression by citizens voicing thought regarding public officials. [Sullivan protections were subsequently expanded to include other classes of public figures, somewhat more controversially.]

Though the three challenges do not appear to be well-organized, well-considered and linked, we would be fools to not be concerned.

New York Times v Sullivan

L.B. Sullivan, a Montgomery, Alabama Commissioner of Public Affairs filed a libel suit against "Negroes," clergymen and the New York Times Company for a full-page ad, entitled "Heed Their Rising Voices," run in the Times on March 29, 1960 in which the defendants call for human dignity, guarantees of the United States Constitution, the Bill of Rights, and defense of Dr. Martin Luther King, Jr, (p 257, New York Times v Sullivan).

The ad was signed at the bottom of the page by the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South."

L.B. Sullivan was not mentioned by name in the ad, but the ad condemned actions of the Montgomery police, and Sullivan reasoned he was implicitly criticized and libeled because of his authority as a supervisor of City police, (p 258, New York Times v Sullivan). 

A jury in the Montgomery County Circuit Court awarded Sullivan $500,000.

American Court victories won for liberty usually come after indescribable costs in blood and lives — state-perpetrated genocide, slavery, terror, massacres, murder, frame-ups, incarcerations, character assassination, trauma, intimidation, hate, racism and harassment, continuing today.

The New York Times and civil rights workers prevailed over the tyrannical Montgomery police and its odious City officials at the United States Supreme Court.

Justice William Brennan writing for a unanimous court authored a defense of the liberty of the people against government tyrants, a principle that today stands as both an inspiring statement for liberty and a landmark declaration of the power of citizens over public officials.

Writes Brennan:

The First Amendment, said Judge Learned Hand,

presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked upon it our all. United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y. 1943).

Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375-376, gave the principle its classic formulation:

Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. ... Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Thus, we consider this case [New York Times v. Sullivan] against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. (New York Times v. Sullivan).

Parable of Racist Police

To understand the power of Sullivan today, consider a recent example of racist Wisconsin police in which the DeForest, Wisconsin Police Chief Daniel Furseth was caught on video surveiling and mocking a group of black teenagers dressed for their high school prom, and stopping by an area restaurant, as was reported by a former police intern on YouTube in June 2018.

DeForest, Wisconsin Police Chief Daniel Furseth is a racist
cop who surveiled and mocked five young black men
in some faux black slang with a demeaning, racist and
derogatory narrative caught on video. Furseth was widely
criticized, resigning under fire before joining like-minded police
at the Town, not the City, of Madison, Wisconsin. Prior to
the holdings in New York Times v Sullivan (1964), public
officials like the Furseth could prevail in libel actions, pleading
libel per se against those such as the police intern who
published the video on YouTube. Wrties the whistle-
blower: "This is what the stupid, ignorant, and imbecilic Village
of  DeForest elects to be their 'Top Cop.' This is the racist
Chief of Police Daniel Furseth, who is much like the rest of
DeForest, poorly educated, socially intolerant, and completely
incompetent when it comes to federal law (you know
the one that trumps state and local law when it’s in conflict
with it). Only a redneck and backassward community like
DeForest would want someone like this as a Chief to keep the
black man out."

Observing the youths and commenting in mocking accent, Furseth said: "Okay, we is out on our dates. We got the bitches, we gonna get them, and we gonna give them food. I got my cane, I’ve gots (sic) my suit. Oh baby … Okay, boys, let’s go in. This is the fanciest restaurant we ever been to and it’s called the Steak ‘N Shake. (Laughter) Unbelievable."

A reader should listen to the 36-second clip on YouTube to get a full accounting of the malice and racism that most small-town Wisconsin cops know to keep under wraps. Furseth and his all-white police force really do not like black people.

In August 2018 came reports of four new counts of misconduct by Furseth, (WISC-TV).

Chased out of office, the racist Daniel Furseth was never heard from again, right? Wrong.

Furseth was quickly hired by the town of Madison, not the City, in October 2018.

An official with the town of Madison police department, not the City, confirmed by phone on August 14, 2019 that Furseth is still employed with the Town police, locally notorious for racism, harassment, bogus citations and misconduct.

Pre-New York Times v Sullivan (1964), or had American jurisprudence taken another direction, the Town, DeForest and Furseth may have enjoyed cause for civil action for my opining that Daniel Furseth and Town and Village officials are racist, ignorant pig-fuckers who should have their teeth kicked out.

The former police intern who blew the whistle on YouTube similarly might not enjoy protections for his commentary about the character of the DeForest, Wisconsin Police Dept in which Furseth rose through the all-white ranks to become chief in 2015.

The judiciary over the last 60 years has risen to become a refuge for civil pleadings from social movements working for those persecuted by the State — often the repository of lurid souls like Daniel Furseth and L.B. Sullivan who, one may believe, should be anomalous is a classical liberal society.

Liberties Prevail

The United States Supreme Court of the 1950s, 60s and 70s in significant areas made it appear individual rights prevailing were a dynamic as inevitable as the triumph of reason over racism and liberation over atavistic taboo.

Landmark legal rulings after rulings were won and each victory seemed a fulfillment of long-denied liberties as the civil rights and peace movement flourished.

Brown v Board of Education (1954), New York Times v Sullivan (1964), Loving v Virgina (1967), Brandenburg v. Ohio (1969) and United States v. United States District Court (1972) and dozens more Court holdings promised to buttress citizens against routine incursions of liberty by State actors and law enforcement.

Sullivan under Attack
 
Many today fear an epic backlash, and the challenges to Sullivan are emblematic.

 There are now at least three cases in three different appellate circuits — Second, Sixth and Seventh — in which rightwing plaintiffs appear intent on revisiting New York Times v. Sullivan.

• Sixth Circuit - Nicholas Sandmann v. WP Company LLC, d/b/a [doing business as] The Washington Post (2:19-cv-00019). Plaintiff says he will appeal the dismissal decided in jUly 2019.
• Seventh Circuit - Andrew Colborn v. Netflix, Inc (1:19-cv-00484). Likely to be dismissed in a  Dec 19, 2019 hearing in District court. An appeal is possible.
• Second Circuit - Sarah Palin v New York Times Co, 2nd U.S. Circuit Court of Appeals, No. 17-3801. Case will be heard on the merits in U.S. District Court.

All three plaintiffs above are political rightwingers.

Sandmann and Palin are demonstrable racists.

All three cases appear more the result of isolated rightwing angst at the liberal press, and, in Colborn's case, astonishment that analysis and commentary dare accuse a law enforcement officer of criminal misconduct.

So, Google-alert the cases and keep your eyes out.