Times v. Sullivan provides essential protection

Robert Kantowitz makes some provocative comments about First Amendment rights in his letter (Letters, Winter 2022 issue) on the Pentagon Papers article (from Summer 2021 issue). But his analysis veers off course when he conflates the rights of freedom of speech and freedom of the press, as if the latter was merely a subset of the former. Just as the “Religion” portion of the First Amendment incorporates two related but separate clauses, so does the “Speech” section. Freedom of speech and freedom of the press are not identical, and to a great extent not overlapping. But Mr. Kantowitz does not feel the press “deserves special solicitude.”

The authors of the Bill of Rights believed that freedom of the press was critically important to the success of our republican government. For that reason, freedom of the press was singled out for inclusion among the specific enumerated rights of the First Amendment, the only private industry included, and indeed the only private industry mentioned in the entire Constitution. But ascribing such importance to the press relied on an enormous assumption — that a vibrant, thriving, and economically sustainable press industry would always exist.

There is no denying that the internet’s democratization of publishing has made it more challenging for Americans to discern legitimate news reporting sources (“the press”) from biased, subjective, and even deceptive opinion platforms. But that doesn’t compel throwing up our hands in surrender. False or “alternative” facts and false news, like other deceptive content, are not protected by the First Amendment. And the task of differentiating the press from the chaff is not impossible. Citizens who read beyond what their smartphone screens show them can tell the difference. Our courts have also demonstrated this ability in cases such as Bollea v. Gawker.

Mr. Kantowitz sees a solution by making fake, sensationalist, and voyeuristic news poseurs more vulnerable to legal liability. He forecasts that “within the coming few years New York Times Co. v. Sullivan will be overturned or eviscerated … because its test is no longer practical.” To me, that would be the worst possible outcome — removing the single most important bulwark protecting the press from the revenue depletion of constantly responding to bad-faith, politically motivated, and meritless lawsuits, as we saw occur in the aftermath of the 2020 presidential election. Opening the legal liability gates by getting rid of Sullivan would likely result in the complete destruction of the press, accomplishing what has been the far-right’s objective all along. That outcome could produce an even more serious result: a mortal wound to the citizenry’s ability to think for themselves and speak truth to power.