When the First Amendment Is at Stake

Our founding fathers may not have guaranteed the right to free speech in the first draft of the U.S. Constitution, but it did make it into the very first amendment to the document. A series of Supreme Court rulings during the Civil Rights movement extended the right to free speech, but now at least two Supreme Court Justices want to reverse that decision.

At the height of the Civil Rights movement, The New York Times published an advertisement that criticized terrorism against protestors in the Civil Rights movement in the South. L.B. Sullivan, the police commissioner of Montgomery, Alabama at the time, sued the newspaper, claiming the ad falsely accused him of misconduct. Sullivan was not even named in the ad, but a jury in Alabama ruled in his favor and awarded him $500,000 in damages.

The case made its way up to the Supreme Court, which reversed the decision. The Court based its ruling on the fact that the First Amendment of the U.S. Constitution prohibits public officials from recovering damages for defamation regarding their official conduct. The only exception to that rule is if the plaintiff can prove the allegedly defamatory statement was made with “actual malice”, meaning the defendant knew the statement was false at the time they made it, and they made it anyway with the intention of inflicting some sort of harm (financial or otherwise) on the plaintiff.

The Court concluded by saying the ruling was in the spirit of the First Amendment, which was designed to encourage free and open debate on public issues, even when it means leaving public figures to get attacked in the press. While the First Amendment initially applied only to public officials (those holding elected government positions), later Supreme Court rulings extended the protection to any speech about any public figure, including entertainers and other celebrities.

Now Clarence Thomas and Neil Gorsuch are threatening to overturn those rulings and impose stricter sanctions on one of the founding principles of our country that has separated us from England. While England’s government is a democracy, and while the U.S. government was largely based on that of England, one of the key differences between the two countries is the restrictions on defamation.

In the U.S., the First Amendment has allowed the press to flourish with books, newspapers, magazines, and TV and radio shows catering to all kinds of audiences and making all kinds of assertions, regardless of their validity. When a defamation lawsuit is filed, the burden is on the plaintiff to prove the statements in question were not only false, but that the person making them knew they were false at the time they made them.

By contrast, England’s much stricter defamation laws put the burden on the defendant to prove their statements are true. The result is that books revealing crucial information on powerful people (such as “Putin’s People: How the KGB Took Back Russia and Then Took On the West”) are more likely to get published in the U.S. than in England because they’re less likely to face legal action in the U.S.

Thomas and Gorsuch claim the rise of online trolling requires stricter defamation laws, but if they have their way, the American press could end up looking a lot like the British press, and that would not necessarily be a good thing for the press or for the American public.

At Lubin Austermuehle, we help clients navigate the complex laws and emotionally charged pathways to a court victory or settlement in slander and libel cases, as well as a vast range of other disputes from class action suits to breach of contract. We serve clients throughout Chicagoland from Waukegan, to Skokie and beyond. and the Chicagoland area. You can contact us online here or call us on our locally at 630-333-0333. Take advantage of our FREE consultation, where we can discuss your specific needs and wishes and our ability to meet them.

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