The editors of the New York Times must have been happy
to get some “conservative” support for their smear campaign against
Supreme Court justices. It came in the form of a letter to the
editor from Bruce Fein, an eccentric libertarian who once served in
the Reagan Justice Department, published February 11:
Justice Antonin Scalia galloped beyond the farthest boundaries
of judicial propriety in secretly meeting on Capitol Hill to
discuss the Constitution with Tea Party members of Congress saddled
with a co-equal duty to assess the constitutionality of legislative
action. If there are better ways to destroy public confidence in
judicial impartiality, they do not readily come to mind….
Don’t be surprised if a Tea Party member soon speaks on the
floor of the House urging repeal of the health care reform law’s
individual mandate because Justice Scalia secretly advised that it
exceeds the powers of Congress.
If this is true, Scalia’s misconduct is even worse than Fein
suggests. Not only has Congress considered legislation to repeal
Obamacare, but the question of that law’s constitutionality is
currently before multiple federal courts. Canon 3 of the Code of
Conduct for United States judges stipulates: “A judge should not
make public comment on the merits of a matter pending or impending
in any court.” If Scalia told members of the public-including
congressmen-his opinion of this litigation, it would be a gross
violation of judicial ethics.
But it is false. The liberal website TalkingPointsMemo.com had
reported January 25 that Scalia’s constitutional seminar was open
to all representatives, not just Tea Party ones; that among the
attendees were two left-wing Democrats, Jan Schakowsky of Illinois
and Jerrold Nadler of New York; and that Schakowsky and Nadler both
“vouched for Scalia and the event, and dispelled the notion that
anything untoward happened.” Nadler noted, in TPM’s words, “that
Scalia steered clear of addressing timely issues, and that the
members who asked questions weren’t pressing him for legislative
guidance.”
Scalia stands falsely accused of serious professional
misconduct, which prompts a mischievous question: What if he were
to sue for libel?
Such a case would be hard for him to win. Scalia is a public
official, so under New York Times Co. v. Sullivan (1964),
it would not be sufficient to show that the claim about him was
false and defamatory. He would also have to prove, as Justice
William Brennan put it in that case, “that the statement was made
with ‘actual malice’ — that is, with knowledge that it was false
or with reckless disregard of whether it was false or not.”
Fein would have a strong defense on this element of the tort —
to wit, that he did not know the facts and believed in good faith
what he read in the Times. The relevant passage from the
February 5 editorial, which prompted Fein’s letter, reads as
follows:
Justice Scalia, who is sometimes called “the Justice from the
Tea Party,” met behind closed doors on Capitol Hill to talk about
the Constitution with a group of representatives led by
Representative Michele Bachmann of the House Tea Party Caucus.
So, could Scalia convincingly claim, in a lawsuit against the
New York Times, that this passage was libelous? No,
because it is artfully constructed so that every statement of fact
is true. Scalia did meet with a group of representatives, the
meeting did occur “behind closed doors” (it was not open to the
general public), it was organized by Bachmann, and she does belong
to the Tea Party Caucus.
The Times did not lie outright; rather, its deception
consisted in the omission of facts that demonstrate beyond any
doubt the propriety of Scalia’s conduct. Thus as a legal matter,
the Times did not defame Justice Scalia, which would
require it to make false statements of fact about him. It merely
participated in an effort to do so.
Fein’s letter illustrates how this effort works. His account of
the Scalia meeting is consistent with the Times’s. But
Fein fills in the blanks and resolves the ambiguities in the
Times account in ways that are contrary to fact but
consistent with the editorial’s implicit message that Scalia
behaved wrongfully. A reasonable surmise is that the editors
expected ideologically sympathetic readers to do just that, and
influential ones to propagate a false account that would damage
Scalia’s reputation — but for which the Times would bear
no responsibility because, after all, what it wrote was
accurate.
Just one problem: Fein’s letter was published by the New
York Times -- and not in some unmoderated online comments
forum, but in the heavily edited letters section of the newspaper.
That is to say, the Times’s editors made the decision to publish a
false accusation against Scalia.
Did they do so “with knowledge that it was false or with
reckless disregard of whether it was false or not”? That is a
factual question, for the jury in our hypothetical lawsuit to
resolve. But the careful way in which the editorial avoids any
outright falsehoods suggests that the Times’s editors were
familiar with the facts of the Scalia meeting.
ALL THAT SAID, it’s a safe bet that Scalia will not sue for
libel. Because of the protections afforded by the First Amendment,
it almost never makes sense to bring a defamation suit in an
American court — especially for a prospective plaintiff who is a
public figure and therefore bears the legal burden of proving
actual malice. A plaintiff in a lawsuit opens his own life up to
discovery motions by the defense, and defamation actions often only
bring more attention to the disputed allegation.
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.
