I supplemented my college education this week with a lesson about part of what makes this a uniquely free country.
The phrase “Free country” gets used in ways that mean a lot of different things. What I realized this week is how it’s more than a slogan. A free country is real, specific, and rare in the world.
The insight came to me at The Kentucky Author Forum in downtown Louisville. The guest was Deputy General Counsel of The New York Times David McCraw. He reminded me of a lawsuit decided by a unanimous U.S. Supreme Court in 1964. Every journalism student knows the case from their media law class—New York Times Co. vs. Sullivan. The case is so meaningful that I regularly think about it 45 years after first reading about it in my Law of Mass Communications textbook. Honest, I really do think about this stuff.
The case in a nutshell: civil rights advocates bought a full-page fundraising ad in The Times critical of police in several southern states. L.B. Sullivan, Commissioner of Public Affairs for the city of Montgomery, Alabama, sued, saying the ad defamed the police, and that parts of it weren’t even true. He said, for example, that during a college protest police didn’t “ring” the campus, but were just stationed nearby. Sullivan lost at the Supreme Court, even though no one disputed the factual errors. Instead, the court said that winning a libel case required proof not that the information was incorrect, but that it was published with “actual malice…knowledge that it was false or with reckless disregard of whether it was false or not.”
The court wrote that in America, public officials have to live in a system with “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
“That set the bar very high,” McCraw said in Louisville this week. No kidding. Think about it—the highest court in the land said that in proving libel in commenting on public issues, truth is not as big a deal as whether the publisher knew for sure the information was wrong and published it anyway in order to cause harm.
OK fine. I already knew all that from college—that we have a lot of leeway when it comes to public comment in this country. It was McCraw’s next comment about the Sullivan decision that perked up my ears and brain.
“It’s something you won’t find anywhere else in the world.”
And there you have our unique freedom. I’ll concede those broad limits might be controversial. I’ll concede the Sullivan decision creates a radical notion of allowing the speaking of truth to power. But it’s the law. A uniquely United States of America law.
During the Q&A I got to ask McCraw to elaborate on his view that his job was to get stories INTO the paper, when in my experience corporate lawyers can always make life easier on themselves by saying, don’t publish that.
“I don’t want to be the person who stopped the truth,” I was happy to hear him say. “Lawyers who instill fear do a disservice to to the First Amendment.”
On the other hand, for small local local newspapers, McCraw warned, even the threat of a lawsuit can be devastating enough to put it out of business. He likes working for a newspaper that can afford to risk being sued, to help “stop bullying.”
McCraw came to town as part of touring for his new book, Truth in Our Times—Inside the Fight for Press Freedom in the Age of Alternative Facts. I bought my autographed copy but haven’t read it yet—when I do, I’ll be sure to file a book report here.