The American Spectator

In addition, although false accusations of professional misconduct are per se defamatory in most U.S. jurisdictions, it is hard to imagine a Supreme Court justice — who is at the pinnacle of his profession and has life tenure — establishing much by way of actual damages. Such a case would also be highly disruptive to the federal judiciary. Imagine being the trial judge forced to rule on defense motions seeking to compel the plaintiff to testify about confidential judicial matters.

As a practical matter, then, a Supreme Court justice is a libel-proof plaintiff. The legal system offers him no recourse against defamatory speech by journalists or other members of the public.

For similar though not identical reasons, the same is true of the president, which is why sites like WorldNetDaily.com are able to publish demonstrable falsehoods about Barack Obama’s birthplace. (Note, however, that in itself it is not defamatory to make the false claim that Obama was born outside the U.S. Being born overseas is not a wrongful act or a defect of character.)

This is a price our top officials pay for pursuing positions of power and responsibility in a society so free and open. Those of us who are in the business of commenting on politics and government have a moral duty, even if frequently not a legally enforceable one, to tell the truth when we criticize public officials. If we fail to do so, our reputations ought to suffer. If there is justice in the marketplace of ideas, the New York Times will clean up its act or come to be seen as the WorldNetDaily of the left.