By Reed Lee, Esq.
Today rings in the 50th anniversary of the SCOTUS decision in New York Times v. Sullivan. In my view, this was the single most important free speech case the United States Supreme Court has ever decided. Alexander Mieklejohn described the Sullivan decision as “an occasion for dancing in the streets.” I would like to suggest its 50th anniversary as an occasion for reflection on some of its most powerful words, which encapsulate its meaning:
Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
We might reflect even more on the underlying “pre-suppos[ition] that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection.” As Judge Hand once famously put it: “To many this is, and always will be folly; but we have staked upon it our all.”
I sometimes travel in circles where it is fashionable to have nothing good to say about a status quo power like the United States. But I’ve walked out of courts having represented clients who admitted shouting “fuck the police” but were acquitted because they personally did not throw the bottle at the cop.
A government and a legal system built on the propositions that the sole legitimate purposes of government is to protect individual rights and that all government derives its just powers from the consent of the governed gives us a great deal of room to argue for–and to often obtain–results which are the envy of the oppressed everywhere.
That’s worth remembering every once and awhile. Not perfect, to be sure; and that’s why the struggle continues.
The US Constitution was a major reason for my relocation in the US from the UK, and has held up a lot better than other aspects of the US government since 1970 (when I arrived). But let us not forget that the old USSR had a pretty good constitution in some ways, too. They just didn’t pay much attention to it.
The judicial branch of the US government has proved to be more trustworthy than the other branches.
The US supreme court has always to lesser or greater degrees been a political institution. For example from the circa 1940’s to 1980’s it was more of a check and balance against the tyranny of the majority. Today it is very political for the benefit of the right wing and the tyranny of the powerful minority who have much dogma to lead a large plurality(the working and middle class “conservatives). Our constitution with the exception of the bill of rights and amendments, is biased towards the creditor and acquisitive classes and today it is more than ever . Most countries have a good look and change aspects of their constitutions every 50 or so years. Its been over 200 years and we get an amendment now and then. Its high time to have something like another constitutional convention. Remember when our constitution was written it was done in secret. Madison wrote it all down, and would not release it after his death. One of our founders got a majority vote on “this democracy should be run by the opulent”.
This country is fortunate to have outstanding 1st Amendment lawyers like Reed Lee, Jeffrey Douglas, Marc Randazza and others. Without them our rights would not be protected.
Yes, but…Sullivan was decided 50 years ago. I don’t often read cases where the courts have the courage to actually stand up for the Bill of Rights these days. Way too often, the foundation of our country is chipped away to reach some compromise that leaves the fundamental rights, well, compromised. The fact that the Judiciary is more trustworthy than the other two branches is really pretty cold comfort.
Reblogged this on Cyber Report.