Freedom of Speech or Something else?(BOOKS)

The Washington Times (Washington, DC), July 7, 2002 | Go to article overview

Freedom of Speech or Something else?(BOOKS)


Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

Like Don Quixote's platonic infatuation with Dulcinea, federal judges romanticize about freedom of expression

in largely shielding the media and sister industries from civil liability under the First Amendment. Decisions coo with sonnet-like praises for the virtues of undomesticated speech, for example, checking government abuses, promoting human dignity, advancing the search for truth, and, deflating social tensions that might otherwise erupt into violence. While such First Amendment poetry may be magnificent, it certainly is not serious law.

Now comes Robert M. O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, with a predictably uncritical contemporary survey of free speech and theories of civil liability, "The First Amendment and Civil Liability." Its glance at pioneering issues raised by the Internet and the digitizing of music, television and movies is informative for the academic, practitioner or media entrepreneur. In the bulk of the book, however, Mr. O'Neill scrutinizes First Amendment law with ancient roots: defamation, invasion of privacy, the right of publicity, incitement, commercial speech, and news-gathering. Mr. O-Neil's performance is workmanlike, but it resists examining the mythological mountain from which he pontificates.

That neglect is worrisome because First Amendment law is unusually intellectually flabby. It craves a sparing partner to melt away the counterproductive excess. The fortress-like constitutional protection of the media from defamation suits is emblematic.

The landmark Supreme Court ruling in New York Times vs. Sullivan (1964) and its extended family progeny prohibit defamation, invasion of privacy, or first cousin tort suits for injurious falsehoods unless the victim proves the publisher knew of the falsity or acted in reckless disregard of the truth, i.e., acted with actual malice. The proof must be clear and convincing; and, reckless disregard requires showing the publisher subjectively entertained serious doubts about the truthfulness of his defamatory bite, which obtusely places a premium on lazy and unsubstantiated reporting.

The actual malice shield is technically confined to media assaults on public officials or public figures. Private anonymities are not barred by the New York Times from recovering compensatory (as opposed to punitive) damages for media negligence in publishing falsehoods. But such would-be plaintiffs are deterred by the daunting financial demands in fighting a media giant and the personal pain and aggravation to reputation by the filing of the lawsuit, simpliciter.

According the Supreme Court and its First Amendment cheerleaders, the actual malice rule promotes an enlightened public scrutiny and understanding of serious public matters in a republic that cherishes self-government. Without that liability shield, the High Court insists, the media would shy from aggressive criticism and exposure of abuses by those who strut in the corridors of power charting the nation's destiny. (Tort law ordinarily creates liability for unreasonably risking harm to persons or property.)

Falsehoods, it is said, are inevitable in fast-moving commentary and news reporting - the first drafts of history. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Freedom of Speech or Something else?(BOOKS)
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.