If you are trying to make sense of how our nation has become so toxic, a good starting point is the Supreme Court’s 1964 decision in New York Times v. Sullivan. That case radically altered existing law so that, for the first time in our history, it was, as a practical matter, impossible for any “public figure” to bring a successful defamation suit. There can be no better example of the horrid effect of that decision than a recent race-based defamation against Governor Ron DeSantis.
Recently, the DeSantis administration sent a letter to the College Board informing it that the State of Florida would not allow a proposed AP African-American Studies curriculum to be taught within the state. The rationale was that much of the course was nothing more than a highly politicized and radical ideology dressed up as a history course, something illegal in Florida.
Factually, nothing DeSantis did was “racist”—that is, he did not treat Blacks differently because of their skin color. Nor did anything DeSantis say or do support “White supremacy”—that is, he did not promote White Americans as being inherently superior to Black Americans. And yet, the race hustlers instantly went on the attack:
Since the 1960s, progressives have been using the race card to demonize and defame their ideological opponents.
In that vein, it would be hard to imagine a more classically defamatory article than that penned the other day by Renée Graham, an associate editor of the Boston Globe: “Ron DeSantis’s Fear of American History.” Graham outrageously slanders DeSantis by claiming that racism motivated him. She compares DeSantis’s refusal to allow the wildly ideological African American Studies AP Course to be taught in Florida to the actions of a slave owner who refused to allow his slaves to learn to read. It is, she says, an act of “white supremacy.”
Graham paints DeSantis as an evil and immoral person. This relieves her of the burden of addressing the substance of the DeSantis Administration’s complaints about the College Board course. It is enough that she labels him a racist and white supremacist.
What Graham has written could not be more divisive for our nation. She abandons reason and substitutes defamation posing as reasoned argument. This approach defines post-modernism. (See a perfect example here.)
This style utterly permeates all the victim’s studies programs in academia—and increasingly all of academia itself. There, for six decades, victim studies programs have been allowed to grow cancerous, free of any academic rigor. There is no better example than to point out that charges we deemed ridiculous in 1960 because they were devoid of fact are today embraced as truth in the scurrilous 1619 Project, a calumny on the country itself.
With academia as ground zero for post-modernism’s “defamation as argument,” leftists charge that anything or anybody challenging them is “racist” or “white supremacist.” Doing so dangerously balkanizes America but gives leftists political power.
This could not be more toxic, yet it only gets worse with every passing year. Race relations in this nation were good and improving before 2008. Today, after almost two decades of relentless attack by progressive race hustlers with a political agenda, race relations are decaying rapidly and significantly. That is truly evil.
So how do race hustlers like Graham get away with their defamation? Why aren’t they being sued into penury and our national conversation being forced into one of substance, not demonization?
For millennia, Western civilization has used the law of defamation to blunt baseless lies and calumnies from destroying reputations and whole societies. That law allows a person who has been falsely maligned to sue.
The law’s roots go back to Ancient Rome, where, over 2,000 years ago, a Roman citizen could sue anyone who had made a false accusation against him, using an action for Calumnia (from which we today get the word “calumny”). This law passed into England’s legal system during the Roman Occupation. Before 1964, in an unbroken line under Roman, Anglo-Saxon, English, British or American law, there was no appreciable period where defamation law was unavailable to stop false accusations.
It changed in 1964 when a progressive Supreme Court, in its infinite wisdom, gutted this nation’s defamation laws in New York Times v. Sullivan, a case that arose because proponents of racist laws and treatment were successfully using charges of defamation to shut down legitimate criticism. In 1960, the New York Times published an advertisement supporting Martin Luther King. Because the advertisement had several minor factual inaccuracies, an Alabama Police Commissioner sued in state court for defamation and won a $500,000 judgment against the Times by using irrelevant errors to silence substantive criticism.
The Supreme Court, rather than acting with judicial restraint and limiting its holding to protect innocent parties on both sides of the issue (i.e., those who are falsely defamed and those who make legitimate criticism), came up with a different principle, unheard of in Western civilization. It held that public figures can sue for defamation only under unique and extraordinary circumstances.
The practical effect is that, in America today, a “public figure” has no recourse at law when defamed. The Court effectively led our nation into a bold experiment where people are free to lie and demonize their opponents without fear they’ll be held liable.
Thanks to that holding, people like Ms. Graham can hurl the race card with abandon, making horrible and false accusations against a politician; Joe Biden can tell blacks that white Americans want to “put y’all back in chains”; the Southern Poverty Law Center can accuse innocent organizations and people of “hate” simply for taking positions at odds with progressives; and George Soros can attack critics of his policies by claiming the critics are really just “antisemitic.” These attacks will, at best, silence those making legitimate points or taking reasoned stands and, at worst, will ruin their lives.
There is only one justice on today’s Supreme Court who seems to have the courage to revisit this disaster created by the Court: Justice Clarence Thomas. Six months ago, he wrote the following in a dissent:
“New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” [Citation omitted.] Those decisions have “no relation to the text, history, or structure of the Constitution.” [Citation omitted.] This Court has never demonstrated otherwise. In fact, we have never even inquired whether “the First or Fourteenth Amendment, as originally understood, encompasses an actual-malice standard.” [Citation omitted.]
He is right, even if the rest of the Court is willing to ignore this disaster.
Others see different ways to address the problem. For example, Glenn Reynolds of Instapundit draws a road map for reforming defamation law that would leave New York Times v. Sullivan standing but alter its impact.
I see a global change as preferable, one that challenges and blunts the Supreme Court’s constitutional overreach, which makes it the most dangerous branch of government. Progressives have treated the Supreme Court as a politburo over the past century, using it to advance policies that could never be passed through the ballot box. That situation, like the gutted law of defamation, cannot last if America is to survive.
Congress should treat the New York Times v. Sullivan decision and its progeny as being applicable only to the common law tort of defamation. Congress should exercise its unique authority as our nation’s only authorized legislative body (U.S. Const. Art. 1 § 1) to craft a statutory defamation law that would return the tort, in large measure if not entirely, to its pre-1964 standards. Only then can we rid this nation of the race hustlers who have used the gutted defamation law to fill the nation with toxic rhetoric, causing untold damage.
Cross-posted American Thinker.