Reflections on the First Amendment

The Application of Malice Clause & New Interpretation of Freedom Of Speech

The First Amendment of the United States Constitution maintains many provisions that work in a cohesive manner which serve to uphold the rights of citizens. Under the first amendment three key provisions are stated which protect the exercise of free speech. These provisions include not making laws which are infringing on the freedom of speech, infringing on the freedom of the press, or prohibiting the petitioning for a governmental redress of grievances. These provisions are intended to foster honest argumentation without fear of governmental or legal reprisal. These provisions of the 1st amendment are designed to support open discourse as the means of democratic government.

There have been many cases which have challenged and provided means of interpretation of the first amendment. One of the most famous and arguable most important is New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In this case, the United States Supreme Court would establish the actual malice standard which serves as the measure to be met before press reports concerning public officials and public figures are considered to be defamation or libel. The malice standard that all plaintiffs in defamation and libel cases prove that publishers of newspapers or similar publications knew that statements made were false of that the publisher acted with blatant disregard for the truth. The establishment of the malice clause allows free reporting truthful events without the constant threat of lawsuits. This case was born out of the civil rights movement in the Southern United states.

During the civil rights movement the press was under attack by government officials wherever stories were carried that depicted law enforcement and officials in a negative manner. Before this landmark decision there were approximately $300 million in libel and defamation suits pending against news organizations from Southern states. As a result media outlets were forced to exercise extreme caution when reporting civil rights events. These lawsuits would culminate into a legal battle that would forever change the interpretation of free speech.

The New York Times on March 29, 1960, printed a full-page advertisement defending Martin Luther King, Jr. in a perjury indictment in Alabama. The advertisement, “Heed Their Rising Voices” described law enforcement actions taken against civil rights protesters in Montgomery, Alabama. In a typical effort of the time to control public opinion, L.B. Sullivan the Montgomery Public Safety commissioner filed a defamation suit against the New York Times even though he was not mentioned in the article. Sullivan believed that the criticisms of the police were as well defamatory against him because of his position as commissioner.

Not only did Sullivan sue the New York Times he also filed suit against four black ministers mentioned in the article. Sullivan won $500,000 in an Alabama court judgment. The case was appealed to the Supreme Court and the decision was reversed. This decision created the malice clause for determination whether public officials could sue media outlets for defamation. The high court ruled, “A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves “actual malice” — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”

This landmark decision would expand civil rights by taking the fear away from media for being sued when reporting government actions. As well, this case expanded the right of freedom of speech in that it supported other provisions of the 1st amendment such as freedom of press, freedom to file grievance. This would give the people of the United States a greater freedom to express themselves. The civil rights movement could flourish without constant fear of legal action to bar its voice. As well, the true strength of the press could be realized as public servants who were still suborning discrimination and segregation could be exposed without hiding behind lawsuits. Many of the $300 million dollars in suits pending in courts immediately disappeared.

There are however some negative ramifications for the decision that have been realized in the time since the decision. Among these negative ramifications, the Supreme Court held that false information printed against public officials or persons in general does not constitute malice.

…there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times’ own files. The mere presence of the stories in the files does not, of course, establish that the Times “knew” the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times’ organization having responsibility for the publication of the advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under the Times’ policy of rejecting advertisements containing “attacks of a personal character”; their failure to reject it on this ground was not unreasonable. We think the evidence against the Times supports, at most, a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice (New York times, 1964).

In this explanation of the court’s decision, the malice clause is defined as an intentional choice. This severely limits the ability of people in general to sue the press especially those individuals who are public figures. The incredible task of trying to prove intention effectively reduces ones argument to almost subjective reasoning making it almost impossible to prove. Because of the malice clause, supermarket tabloids and many other entertainment style media outlets have been allowed to flourish without little legal reprisal. These magazines regularly print articles that lack quality sources and interpret the truth creatively. This is the price of freedom of the press in that to give society freedom some level of corruption of facts must be necessary.

The Times vs. Sullivan case also limited the interpretation of libel and defamation to persons mentioned in advertisements or articles. From this point, a government official could not sue for libel or defamation because of the supervisory or official connection to a group of mention. Sullivan could not sue because there was no direct connection between his being Safety Commissioner and the criticisms of the law enforcement of Montgomery Alabama. The court argued,

We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations. Since it was relied on exclusively here, and there was no other evidence to connect the statements with respondent, the evidence was constitutionally insufficient to support a finding that the statements referred to respondent (New York Times, 1964).

This would limit future actions of public officials to legal attack reporting of the news and set the standard for the malice clause in that the attack on a person must be personal in nature. Merely being the head of an organization does not mean that the person is being criticized in a personal manner when an organization is criticized in the press.

Although the Times vs. Sullivan expanded fundamental provisions of the first amendment, freedom of speech, press, and filing of grievances are still however severely limited and continue to be a source of debate. One of the debates that continue today is the debate over whistleblowing being an act of free speech and therefore a constitutional right. It has only been in the last decade that protections through the Oxley/Sarbanes Act of 2002 that whistleblower protection has been increased. At the same time the freedom of speech and the malice clause would be delivered a setback in the Supreme Court’s ruling in Garcetti v. Ceballos, 04–5, 547 US 410. The court ruled that government employees did not have protection from retaliation in performance evaluations by their employers under the First Amendment of the Constitution if the alleged speech was produced as part of his/her duties. The far reaching affects of this decision would mean that anything said while in the service of the employer did not fall under free speech provisions of the 1st amendment and therefore a whistleblower could be retaliated against for writing or expressing opinions that are committed while on the job. This 2005 decision limits free speech within the workplace to the extent that whistleblowers could face severe penalties and reprimands even if they were acting within the law.

In many ways, the first amendment has been consistently challenged and limited in ways that both benefit and detract from personal freedom. The balance between freedom of speech and creating malice seems to be a fine line of argument. This line becomes stretched especially where government interest is concerned. In Garcetti v. Ceballos the Supreme Court limits the freedom of speech in the workplace but one must understand that this concerned a federal occupation and not a state workplace (WAGNER, 2005). As well, the Sarbanes/Oxley Act of 2002 gives some protection to whistleblowers with regard to reporting unethical and illegal activities in publically traded companies. However this protection is limited to helping law enforcement with cases and investigations.

Employees that take lawful action to disclose information or assist criminal investigators, federal regulators, supervisors, and or other proper persons within a corporation or parties in legal/judicial proceedings in detecting or stopping fraud are entitled to protection. The protection is afforded to an employee when he/she has a reasonable belief that a violation of federal securities laws or rules has occurred or is occurring and reports same (Small, 2007).

Thus these protections only exist where violations of federal laws have occurred. There is an obvious bias in the Supreme Court’s rulings and in the legislature in that it seems to be self serving where the 1st amendment is concerned with the federal government. The question that seems to stand out is whether the Supreme Court would have ruled the same had the Times vs. Sullivan involved a federal commissioner rather than a state commissioner?

The federal government has continuously created legislation that has limited free speech which has been struck down when it has involved heated areas of debate such as pornography. The Supreme Court partially overturned the Communications Decency Act of 1996 (CDA) which attempted to limit pornography and indecent behavior on the internet, especially in favor of children (FCC, 1996). The Supreme Court held in Reno v. American Civil Liberties Union, that the indecency provisions, “…were an unconstitutional abridgement of the First Amendment right to free speech because they did not permit parents to decide for themselves what material was acceptable for their children, extended to non-commercial speech, and did not define- patently offensive… (Find Law, 1997)”

Although the provisions of the 1st amendment seem clear and when measured with the malice clause they support freedom with pornography and even the reporting of inaccurate information so long as it does not constitute intentional malice. The malice clause has been somewhat limited to libel and defamation suits and leaves the door open to legislation. The true tests of freedom of speech have just begun as the digital world reinvents communication through social media outlets such as Facebook and Twitter. The new challenges of globalization also bring challenges to free speech as Americans are no longer faced with just regulating and fighting for their own rights to speech and press but must now allow other cultures the same rights to express their diversity. The ruling of New York Times vs. Sullivan has become a footnote on the complex issue that freedom of speech has become today. How will courts rule on expression of libel and defamation of character when the sources of media are no longer clear? New decisions will need to be made but more importantly new definitions of freedom of speech will need to be interpreted if the United States is to maintain democratic authority.

References

FCC, . Congress, FCC. (1996). telecommunications act of 199 (104–104). Washington, DC : GPO. Retrieved from http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_public_laws&docid=f:publ104.104.pdf

Find Law. (1997, June 26). Reno, attorney general of the united states, et al. v. american civil liberties union et al.. Retrieved from http://caselaw.lp.findlaw.com/cgi- bin/getcase.pl?court=us&navby=case&vol=521&invol=844

New york times co. v. sullivan. (1964, January 7). Retrieved from http://www.bc.edu/bc_org/avp/cas/comm/free_speech/nytvsullivan.html

SMALL, H. S. (2007). Sarbanes-oxley act 2002 — whistleblower protectionand corporate exposure. Retrieved from http://www.halsmall.com/sarbanesoxley_act.htm

WAGNER, F. D. Supreme Court, U. S. Government Printing Office. (2005). Cases adjudged in the supreme court ( VOLUME 54). Washington, DC : U. S. Government Printing Office. Retrieved from http://www.supremecourt.gov/opinions/boundvolumes/547bv.pdf