Freedom of Expression® help desk

Prompted by one of our members, I’m posting this help desk where you can seek and receive clarification, elaboration and answers to questions related to what we’re doing in class. I sometimes make assumptions about what we know, and of course assumptions are often wrong. So don’t hesitate to ask for more, or to step back and go over something again. And everyone in the class is invited to chime in and crowdsource the answers.

From our last time together, I wanted us to outline the significance of Times v. Sullivan, which included

  • the establishment of a higher level of fault that libel plaintiffs had to prove if they are government officials (actual malice, which is reckless disregard for the truth, as compared to negligence for just us regular folk)
  • the distinction the Court made between political speech (the people’s speech, not just politics) and commercial speech (expression for the purposes of commerce), as well as the speech that is somewhere in between, like the Times ad in the case and Hillary: The Movie
  • that the burden of proof after Times is on the plaintiff, not on the defendant (news media)
  • and that in making these distinctions the case has proven to provide in some ways “the central meaning of the First Amendment,” as the book describes.

We’ll return briefly to the case to look more closely at Hugo Black’s absolutism, and to make sure we all feel good about where Times v. Sullivan fits into the pantheon of landmark First Amendment cases.

Taking your questions . . .

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2 Responses to Freedom of Expression® help desk

  1. Emily W says:

    So with Times vs. Sullivan, we discussed that it accomplished three major milestones. 1) A huge step in ending seditious libel. 2) Instigating commercial speech and 3) the genesis of American libel. We said that it “shifted the burden of proof” and started “truthiness”…when we say the burden of proof, what exactly are we placing on the plaintiff and not on the defendant (as stated above)? I’m not sure I quite understand the distinction between actual malice and negligence. Is actual malice just for government and negligence for regular citizens? Hmmm…it’s easy to see all the “little parts” of Times v. Sullivan…but looking at the big picture, the forest of the case is a little cloudy.

  2. 1. Yes, Emily, effectively ending seditious libel in America, despite SecDef Rumsfeld’s threats, in striking down an Alabama state libel law.

    2. Not “instigating” commercial speech, but recognizing for the first time that commercial speech deserves some First Amendment protection and in doing so, nullifying Valentine v. Chrestenson (1942).

    3. Putting the burden of proof in libel claims on the plaintiff.

    4. Establishing actual malice as a new, higher level of fault that a plaintiff has to prove if that plaintiff is a public official. Actual malice is a reckless disregard for the truth, while negligence is not following professional practices and standards, or being negligent in one’s duties. Private figures need prove only negligence.

    Thanks for your question.

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