Presswatch

Actual Malice

By From the April 2011 issue

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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. 

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About the Author

James Taranto, a member of the Wall Street Journal's editorial board, writes the Best of the Web Today column for OpinionJournal.com.