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Free Speech

by Cat Fri Mar 2nd, 2018 at 01:47:28 AM EST

The decision: New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Petitioners: The New York Times Company, a New York corporation which publishes the New York Times (NYT), a daily newspaper, and four individual petitioners who were officers of the Committee to Defend Martin Luther King (Ralph Abernathy, S.S. Seay, Sr., Fred Shuttlesworth, and Joseph Lowery) which purchased NYT publishing services
Respondent: L. B. Sullivan, one of the three elected Commissioners of the City of Montgomery, Alabama

Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate petitioner's newspaper, the text of which appeared over the names of the four individual petitioners and many others.
The published advertisement: "Heed Their Rising Voices"
The political activity: Protest of MLK's arrest and solicitation of funds from anyone receiving the NYT to pay for MLK's legal defense against two counts of felony perjury.
A jury in the Circuit Court of Montgomery County awarded him [SULLIVAN] damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. The advertisement included statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police department. The trial judge instructed the jury that such statements were "libelous per se," legal injury being implied without proof of actual damages, and that, for the purpose of compensatory damages, malice was presumed, so that such damages could be awarded against petitioners if the statements were found to have been published by them and to have related to respondent.

Happy Black History Y3 D60

The US Supreme Court reversed the decisions of Alabama appellate courts. Who has benefited? Surely los negros, the blacks, were vindicated. Who else benefited? The New York Time Company in defense of publishing that "black" advertisement, the Pentagon Papers in 1971, and "investigative journalists" purporting to "shield" authoritative sources of true and false information [1] from prosecution by US Special Counsel Patrick Fitzgerald, 2004-2006 [2]. Who else? Anyone to this day who expects model principles set forth to defend publishing, anyone who agitates for freedom to telecommunicate political speech to known and unknown recipients.


You are welcome.

The Sullivan doctrine raised an indefinite defense against prosecution of anyone who criticizes government functionaries and acts. The state, in the form of Sullivan, had sued the NYT Company and the negros separately in Alabama, of course, where statutory apartheid prevailed. The Supreme Court's review in effect joined appellants' petitions. For the "social value" of negros epitomized illegitimate expression of one's will to inform, to solicit, to influence, or to manipulate public opinion about state authorities. The NYT Company was the instrument of it its publication.

NYT did not question the negro advertisement's causal relation to Sullivan's supposed injury. Black petitioners did by demonstrating how the sole purpose of Sullivan's lawsuit was to exclude and punish political expression; how any "malice" ascribed to the advertisement actually enhanced Sullivan's reputation in Alabama; and besides the state, in the form of the Hon. Jones, had established, "the Fourteenth Amendment had no standing whatever in this Court." So it was, this intention, not alleged black "malice," not the "tenuous" link from the advertisement's account of police action to Sullivan's supposed injury, demanded a full accounting of contempt for constitutional deprivations under color of law applied to libel or sedition or seditious libel or misinformation, "factual errors."

A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves "actual malice" -- that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.
Unlike the blacks at the bar, the front men litigating the pretext of general and punitive "damages", foisted on an unwitting publisher by mere commerce, were people of European-heritage and privilege, persons presumed wealthy scholars, and partisan manqués. (For data "visualization" of the "ideological leanings" of the US Supreme Court over time see this. The pertinent period is the so-called Warren court, 1954-1969.) So it is retrospectively said, but for the contrite Klansman Justice Hugo Black and the attorneys who represented the negro question, specious qualification applied to free speech might not have circulated among the associate justices at all. No one sought authority from the UN Universal Declaration of Human Rights. William Rogers, I.H. Wachtel, and Samuel Pierce ironically argued that conceits of color-blindness had no place among the merits of petitioners' appeal. Rogers insisted:
The petitioners are not in truth being punished for what they did or failed to do in this case or what they said and did elsewhere and who they are. That the central fact of this case is that they are being--drastically punished because they were Negroes residing in Alabama, who've had the courage to speak out in the struggle to--to achieve the rights guaranteed by the Constitution for all citizens regardless of race or color. [3]
Herbert Wechsler led a phalanx of attorneys representing the pecuniary interest of the NYT Company in the outcome of the appeal. He added a certain lustre to the company's liability in accepting "factual errors" in paragraphs three and six of the advertisement by attributing primordial authority and instrumentality to the ORGANIZATION [4]. Patriotic homage to the dead Sedition Act of 1789 instead of the living Espionage Act of 1917 [5] appeared to dispel lingering suspicion about de facto exclusions to, about the truth of, First Amendment protection. In the opinion Justice Brennan recited precedent symbolized by criticisms of Geo. Washington's benevolent autocracy. Members of the US Congress enacted and protested the Sedition Act by reimbursing fines levied on political speech, paradoxically reasoning that the responsibilities of the electorate were differentiable from those of government.
As Madison said, "the censorial power is in the people over the Government, and not in the Government over the people."
However, the fatal blow to the state's impertinence was vacating judgment for Sullivan simply because it followed from prejudicial proceedings and undifferentiated injuries. The court then emphasized that some measure of reasoning "actual malice" must predicate the people's verdict. The contrite Klansman's concurring opinion, joined by Douglas, here brutally objects to suborning from litigants profoundly sophisticated proofs or evidence of truth and malice.
I base my vote to reverse on the belief that the First and Fourteenth Amendments not merely "delimit" a State's power to award damages to "public officials against critics of their official conduct," but completely prohibit a State from exercising such a power. The Court goes on to hold that a State can subject such critics to damages if "actual malice" can be proved against them. "Malice," even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides, at best, an evanescent protection for the right critically to discuss public affairs, and certainly does not measure up to the sturdy safeguard embodied in the First Amendment. Unlike the Court, therefore, I vote to reverse exclusively on the ground that the Times and the individual defendants had an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials.
And so these arbiters unanimously ruled against punishing political expression of those negros specifically and blacks identified by any other name, be that "minorities," "marginalized," or NAZI critics, for example. They added paid advertisement to tacit listings of forms of political expression, and they agreed to remove any burden of proving a negative --the truth in criticism of government and whether the truth is "true or false"-- from any speaker identified for prosecution by a state's agents. Absolute agreement cannot be found in abject disagreement.

Do you recognize yourself in "black" history?


One may suppose not. One may be ignorant of black history: It is hidden in canon of western civilization. Appeals to free speech "rights" are largely academic: Government giveth, and government taketh away. And legal challenges to exclusive speech "rights" are ever more attenuated these days. One may figuratively wave The Universal Declaration of Human Rights (1948), Article 19, in the faces of government functionaries. But Article 19 is silent on political expression, specifically, and is evidently unenforceable but for the largesse of the fourth estate, instrument of government. Let us see how the populi mediate truth and falsity of political expression.

A tiny sample published in past 72 hours EST.

Publisher electronicintifada.net reported that the University of Virginia (USA) did not quash political expression in the form of students' protest and a conference of Reservists on Duty at the Brody Jewish Center Hillel on its campus last week. The author provided a footnote account of police action ("hyperlink") during the event seeming to explain the story's sardonic title "Universities that censor speech on Palestine pose as champions of protest" [6]. Students and administrators criticized each other's conduct and purported advocacy regarding an international political coalition named Boycott, Divest, Sanctions (BDS) instead of US government legislation intended to punish seditious libel of Israel by anyone, anywhere.

euractiv.com pointed the burning spear of "investigative journalism" at free speech [7] by promoting (advertising) stories published by Buzzfeed.com that the campaign team of far-right candidate Marine Le Pen deliberately sought (i) "to manipulate public opinion" during the French presidential campaign (ii) by publishing "fake news" with Twitter account services and presumably paid advertising [8]. Jules Darmanin, journalist at BuzzFeed News, France --associating Trump with dim recall of black history in the most litigious nation of the west-- writes.

Cette vidéo, qui consiste à critiquer son adversaire plutôt que de défendre son propre programme, est un exemple typique d'attack ad. Ce procédé est né dans les années soixante aux États-Unis, et fait désormais partie du paysage outre-Atlantique. Et l'homme derrière cette vidéo est lui-même américain.[9]
An example of "malice" which impugned the credibility of the state is a "fake parody" of a France TV employee because Le Pen's factors claimed production credit too late, and the scripted speech of a state "persona" was all too credible.
L'ancien directeur de campagne reconnaît donc implicitement que la vidéo a été fabriquée par le FN. Mais sa ligne de défense paraît tortueuse. À l'époque, sur Twitter, plusieurs comptes Twitter s'affichant comme soutien du Front national n'avaient pas l'air de prendre la vidéo pour une parodie... [10]
Under separate cover, Marine Le Pen is personally charged with the crime of reproducing "Isis tweets" [11]. That is Le Pen expropriated photographs of the decapitated body a US journalist James Foley, a tank rolling over a man in an orange jumpsuit, and a man being burned alive in a cage to which she added her caption, "Daesh is THIS!" US citizens, parents of the slain journalist, advocate for censorship of political speech by the government of France. Perhaps they do not know who else to sue for personal injury attributed to ISIS political advertising [12]. They said:
Our family was informed this morning that Marine Le Pen, a French politician, tweeted a shamefully uncensored picture of our son.

About that rolling tank: A journalist discretely promoted the publisher China Digital Times that reproduced a listing of words and phrases ("keywords") which the PRC censors have identified as political speech and intend to excluded by constitutional Amendment from lawful public telecommunications ("online discussions"). Unlike the US Constitution, the constitution of the PRC, Chapter II The Fundamental Rights and Duties of Citizens, Articles 50-55 appear to express the responsibilities of China's citizens to national unity and likewise the authorities of government to compel citizens' obedience in fulfilling Mao Zedong Thought [13, 14]. This chain of orphaned political speech is entitled "China bans George Orwell's Animal Farm and letter 'N' as censors bolster Xi Jinping's plan to keep power indefinitely" [15]. The reporter does not address informants cited in China Digital Times by name or publisher, except to note "Facebook, Twitter and YouTube have long been blocked in the country and even Winnie the Pooh® recently found himself subject to China's latest internet crackdown." Neither publisher refers to the PRC constitution, hence comparison to more or less reliable constitutional protection and prosecution of political expression, as in UK common law, Human Rights Act 1998.
In the book Faces at the Bottom of the Well (1992) Derrick Bell, attorney, recounts the summer of 1964, when he helped to counsel residents of a Mississippi town to realize a court ordered desegregation of its schools. Shots had been fired, jobs terminated, and mortgages called to intimidate the blacks. Bell asked Mrs Biona "MacDonald" (her stigma) where she found the courage to stand for her civil rights, and she said.

I can't speak for everyone, but as for me, I am an old woman. I lives to harrass white folks.
Nearly sixty years later in Spain "another rapper" is convicted. His stage-name or -persona is Pablo "Hasel". The other convicted rapper is named Valtonyc. Their crimes are "praising terror groups, inciting violence and insulting the Spanish Crown and state institutions" with song lyrics and statements published by Twitter and Youtube account services. For example, Hasel's speech associated with figures of GRAPO and ETA, two illegal political ORGANIZATIONS. His supporters criticized the verdict outside court with a banner reading, "Without freedom of expression there is no democracy."[16]

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