Host Scot Bertram talks with:
Benedict Whalen, chairman and associate professor of English at Hillsdale College, to preview his brand-new online course, “The Odyssey.”
And Carson Holloway, department chair and professor of political society at the University of Nebraska at Omaha and a Washington fellow at the Claremont Institute Center for the American Way of Life, discusses the shortcomings of American libel law and his new book, No Liberty to Libel: The Constitutional Case against New York Times v. Sullivan.
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From the historic campus of Hillsdale College in Hillsdale, Michigan, where the good, the true and the beautiful are taught, nurtured and honored. This is the radio free Hillsdale Hour, bringing the activity and education of the college to listeners across the country.00:25S2
We are living in a new age technologically, in which anybody can publish anything almost instantaneously, and we need to think through how to handle that, because you need legislation to protect reputation, you need libel law.00:37S3
This is your host, Scott Bertram. Welcome to the Radio Free Hillsdale Hour. Part of the Hillsdale College Podcast Network. That was Carson Holloway, author of the new book No Liberty to Libel The Constitutional Case Against New York Times v Sullivan. Yes, we talked in depth about libel law later on in today’s program. First, we’re joined by Doctor Ben Whalen. He’s associate professor of English here at Hillsdale College. Also your teacher for the brand new Hillsdale College online course, The Odyssey. Find more hillsdale.edu/new course. Doctor Whalen, thanks for joining us.01:18S4
Oh, thanks so much for having me.01:19S3
Excited to talk today about the Odyssey. Every Hillsdale College student reads The Odyssey as part of the Great Books curriculum here. Why has Homer and this work remained at the foundation of a liberal arts education for now? Hundreds, actually, thousands of years.01:39S4
Uh, it’s it’s, it’s really a sort of a funny thing that the oldest work of literature we have in Western culture is, is also, uh, so great. Um, it’s, it’s sort of a remarkable thing. It actually, um, it’s well known that Homer, uh, probably didn’t write the story down himself that this it emerges from an oral culture where bards are reciting and singing songs. And, uh, it’s a testament to the excellence of the story, uh, that, uh, it’s been preserved from Homer’s time on. It was, in other words, it was immediately recognized as a truly great work. Uh, and people wanted to hear it and they wanted to hear Homer’s version of it. And, uh, so it was preserved and then eventually set down in writing and has been passed on to us. It’s a story that it obviously it part of its excellence is it just has so many great, uh, narrative moments. So of course, you have things like the Cyclops and the homecoming, the, the, the fight with the suitors, the Lotus eaters, these different goddesses, etc.. But it’s also excellent because it really does have, uh, philosophical, uh, reach. It’s got, it gets after deeply, universally human things. And so it’s, it’s really excellent because it, it not only has those sort of gripping, uh, moments of, of, of a really thrilling story, but, but it, it really helps you understand what’s, what’s proper to a human life and in all sorts of ways. So it’s, uh, it makes sense that even those earliest Greeks would retain and retell and, and finally write down Homer’s story.03:22S3
So we’ve got this major new film adaptation of The Odyssey. It’s one of the reasons we have the online course out. One of the reasons we have this conversation today. Why is this a good time to, to go back and maybe not just see the movie, but actually read Homer himself?03:38S4
Yeah. Well, I’m excited to see the movie, obviously. Christopher Nolan, great director, very interesting and thoughtful, uh, filmmaker, the, uh, the book itself though, and this, I love this about Hillsdale College that they, they wanted to produce a course on on the book itself, because we can’t let or we shouldn’t let even a great film, uh, obscure or or stand between us and the book. Uh, it is one of the things I love about the Odyssey in particular, both the Iliad and the Odyssey is that it’s, uh, remarkably easy and accessible despite its riches. And so I’ll tell students this, we’ll dive in and we’ll read a lot here. I teach it every year, uh, at Hillsdale. Uh, but, but that actually, as soon as you get into it, you’re having fun. You’re studying like very serious literature with real serious questions. But, but it’s delightful. It’s accessible. It’s a joy to read. And so I’m happy Nolan has made the film, and I hope it just inspires more people to actually go and read the book, because the book also will be fun and delightful. It’s not a labor to read. It’s a joy.04:51S3
Talking with Doctor Ben Whalen. He’s your teacher for the new Hillsdale College online course, The Odyssey. Find [email protected] slash. New course NEWCOURSE for the Odyssey. Your lectures here in the course follow this journey all around. Finally, at the end back home. How does each stop along this journey reveal something new about Odysseus?05:18S4
Yeah. Uh, so, um, in, in terms of overall chronology, the Odyssey essentially starts, um, uh, we hear about it in the middle of the work after the fall of Troy. Odysseus has been at Troy, they’ve sacked the city, and Odysseus starts his journey home. And one of the really interesting things is that what you see is that Odysseus, when he leaves Troy and starts to head home, the very first thing they do is they land on the shores of another city of the Cicones, and they sack that city and they they haul off plunder. And so you see that this immediately post Troy version of Odysseus is not actually a man who is most profoundly driven by a desire for home, yet. And he’s he’s not really ready for the role of king and husband and father. Instead, he’s more a marauder. He behaves more like a pirate than, than the king of a of an island or a husband or father. So the different stops over the course of the Odyssey, in fact, show a growth and an education, even for the old grizzled veteran. Odysseus needs to go through to learn that he really does belong back in Ithaca. And, and that that really is where his heart is. And he has to fight to get there. And he has to correct and change certain aspects of his character that were shaped by ten years at war. And so it’s, it’s a really wonderful thing to watch that. And it’s, it’s, it’s painful in parts. And it’s also illuminating. Eventually, Odysseus goes to the underworld at the very center of the book, we hear about this, his his journey to the land of the dead. And it’s there that he meets his mother. And she has died from heartbreak, yearning for Odysseus to return. And you see, that’s one of the moments where you see Odysseus learning, I really have to change what I’m what I’m doing, and I do. I need to go home.07:12S3
Throughout the lectures, throughout the course, you show that Odysseus isn’t just fighting monsters, but there’s also confrontations with various temptations along the way, too. Why are the internal battles that we learn about just as important as the external battles through the work?07:30S4
Yeah, I like when you say The Odyssey. I think people think of a Cyclops or maybe the suitors, and those are those are external trials, uh, man versus monster, man versus other men. But it is true. What what we see with Odysseus is that he’s given multiple, in fact, uh, I sort of joke with my students. Multiple options of island women that he could stay with. But but actually what he does is he these are sort of temptations and they entail different things. So one of these one of these goddesses offers him immortality. It’s a remarkable thing. And it only grows more profound as you read the work that Odysseus turns down the offer of immortality. He chooses his wife and his home and death, all of those things together. And not only death, but also Ithaca involves difficulty and suffering. He chooses all that together. Because as as Homer reveals to us, in fact, sort of a meaningful, noble human life, one in which a happiness can be true happiness. The deepest forms of happiness can be found also entails mortality and suffering and struggle. And that all this together makes up that which we find humanly meaningful.08:49S3
Doctor Ben Whalen is your teacher for the new Hillsdale Online course on the Odyssey. hillsdale.edu/new course. Uh, Odysseus is famous for his cleverness, but he also matures over the course of this story. How does Homer depict that growth for the reader? What lessons should we take from it?09:11S4
Yeah, one of the things I think that the work is particularly rich on is it’s, um, the education of Odysseus, both in his need and desire to get home. He has to prioritize that, but also that there’s a difficulty for men who become habituated to violence and force as the means of resolving problems that arise in life. And so in these ten years at Troy, Odysseus is he’s a he’s the he’s described as the, the masterful Tactician. Um, he’s he’s he’s brilliant. Uh, and he’s thoughtful, but it’s entirely in terms of the sort of exercise of force to get your way to conquer a city. And I think that one of the things that Homer shows us over the, over the course of the work is that the virtues of the warrior are not enough, uh, for the husband, father, uh, King, that the husband, father king does need to be able to exert force like Odysseus does have to actually kill these suitors when he gets home. But there’s something more that’s required for a a truly good and virtuous man. There are these other sort of domestic and more more intellectually, uh, or, um, peaceful if or if not peaceful, more sort of properly ordered ways in which a man has to direct his life. And we see Odysseus grow in that over the course of the over the course of the work. So that finally, when he does arrive home on Ithaca, for instance, uh, he he does not reveal himself, but instead, uh, thinks, okay, I can suffer this too, and I can. And he’s very slow and very careful and thoughtful. And it’s those it’s being slow and careful and thoughtful that are actually some of these virtues most necessary for a good king, a good husband, a good father.11:10S3
Talking with Doctor Ben Whalen, associate professor of English at Hillsdale College, also your teacher for the new online course, The Odyssey at hillsdale.edu/course. If you’re online a bit, there’s a little bit of side conversation around the release of the film about the women in the Odyssey. Yeah. The course that your course highlights Penelope as much as Odysseus. Really what makes her one of the truly great characters in Western literature?11:39S4
Yeah, I, I have strong opinions about this, actually. If you get to a book 24 at the very end of the work. Odysseus has butchered all these guys. I’m going to plot spoiler here, but he 2500 years. That’s right, that’s right. He butchers all these suitors who were paying court to his his wife and. And book 24 opens with this scene where all of these suitors souls, the shades of the of the suitors go down to the underworld, and they’re greeted by some of the great heroes from the Battle of Troy. And in this remarkable moment, Agamemnon says to these suitors when he hears how they came to die, he. He says the gods will lift up an immortal song in praise of the glorious Penelope. This song that will never die. And that’s. That’s actually really what the Odyssey is. It’s. It’s Homer’s great song in praise of Penelope. Penelope is, uh, she’s an awesome character. She’s she’s. I always stress this to my students. She is certainly beset by these different suitors. So she’s sort of holding the household together and it’s under assault. Um, but she’s the opposite of a just a helpless damsel in distress. That’s not Penelope. Instead, she’s resourceful, she’s cunning. She, uh, she tricks the suitors. She she she really holds the whole kingdom together, uh, through her wit and intelligence. Until Odysseus returns. And it’s been 20 years, for heaven’s sakes. So, I mean, it’s that’s no minor undertaking. She’s she’s a great character. And really, uh. Homer. Homer’s work points towards her. Homer does not neglect her significance or. Homer’s work does not neglect the significance of women. Uh, really, the poem is much more ambivalent about Odysseus character than Penelope’s. She’s the one who has the sort of virtue and consistency and excellence that you. You can’t help but admire and, and think about, uh, throughout the whole work.13:42S3
Loyalty is one of the defining virtues in The Odyssey. And of course, that ties into Penelope as well. Why does Homer place so much emphasis on faithfulness inside the Odyssey?13:53S4
Yeah, I that’s a that’s a great question. At one point in Odysseus journeys, he comes to the land of the lotus eaters and, uh, the land of the lotus eaters. It’s, it’s this sort of strange, drug like substance that makes people forget their home and where they’re from and who they, they have no desire for anything but to just sort of lie around eating Lotus. And, uh, that’s sort of the, uh, in a certain respect, the antithesis of loyalty. So loyalty entirely. It consists of remembering who you are, who you have debts towards, who’s been your benefactor, who you love. And, and you stay true to that. And so, yes, throughout the Odyssey, there’s this interesting tension Between, say, the call of the lotus Eaters, where you. You could just lose yourself in momentary pleasure and in in the in the day to day and forget and and the man. And that’s that’s in contrast to the man of loyalty or the woman of loyalty who remembers and recalls and lives according to that code. So Penelope is a great figure for loyalty. There’s another wonderful figure, Eumaeus, the swineherd who has taken care of Odysseus, flocks on Ithaca, and he’s he’s described by Homer as the soul of loyalty because he remembers. He remembers his master, he loves him and he serves him. And it’s it’s it’s it becomes very obvious to us that that sort of memory and loyalty is, is a virtue of, of great significance compared to just momentary pleasure and forgetfulness.15:31S3
Readers who are experiencing the Odyssey for the first time might be familiar already with some pieces Cyclops, the Trojan horse. There’s a lot more to it than that. What are some of the overlooked moments that students tend to appreciate after reading The Odyssey?15:51S4
Oh, that’s a great. There are so many. I’ll share one that’s just a personal favorite. When Odysseus finally escapes from this island where he’s been held captive for 7 or 8 years, he. He’s sailed on a raft, and then he gets shipwrecked. And so he lands on this island, the island of the Phaeacians, where Nausicaa is the Princess. He lands there with with absolutely nothing, not even a shred of clothing. He is. He is naked and alone has nothing. And so he. He climbs ashore after this great storm, and he sleeps under this bush. And so he’s covered in leaves and twigs, and he’s. He’s filthy. And then the next morning he wakes up and he hears these young women playing with this ball. They’ve done. They’ve been washing some clothes in this stream, and they’ve been throwing a ball back and forth. And Odysseus hears them and he comes out of the bushes to to see what they are and, and where he is. And Homer has this wonderful simile where he likens Odysseus to suddenly this this lion about to come and prey on this, this well-defended homestead with these rich flocks. And I like to pause there with my students and encourage them to think about like, what does it mean that Odysseus naked without a weapon, without a tool, in a strange land, he’s got nothing. And yet in this simile, Homer likens him to a predator, you know, rather than rather than the suppliant, the beggar. He’s that’s how um, how dangerous he is, how forceful, how resourceful Odysseus is. So you get these wonderful little moments where this is another thing that Homer is so wonderful in is his similes. So you have on the level of the story, just this action going along. But then Homer will liken it to something and that shows you a whole different angle, a whole different way of, of seeing the character or the situation.17:53S3
Is there a particular one of these lectures inside the new online course, The Odyssey that you’re excited for students to experience?18:01S4
Uh, that’s yeah, the, I mean, I’m excited for students to think about what Odysseus goes through when he goes to the land of the dead. Uh, it’s actually a katabasis is the phrase or the term that refers to the a great hero’s journey to and return from the land of the dead. It’s actually a sort of in a certain sense, and I’m not trying to Christianize this, but there’s, there’s a way in which, in fact, early Christians would even read these stories and see that there’s a sort of resurrection motif, or the greatest of heroes, your Hercules or your Odysseus. They. They travel to the land of the dead, and then they return with with some sort of profoundly deepened knowledge or understanding or it’s the mark of the greatest heroes. And so what’s interesting though, is when Hercules does that, it’s. It’s simply because one of his feats and he’s he’s the archetypal hero. When Odysseus does it, though, it’s about reordering the very desires of the human heart. And so it’s, it’s intellectual has to do with one’s loves and with one’s self understanding. And so I’m excited for students to, to get to that, to see Odysseus confront Achilles and Agamemnon in the land of the dead, to meet his mother, and then and then to realize really in part through that where he belongs and how he should conduct his life.19:29S3
Doctor Ben Whalen is associate professor of English here at Hillsdale College, and he’s your teacher for the new Hillsdale College online course. The Odyssey hillsdale.edu/course. NEWCOURSE, the Odyssey. Available now. Doctor Whalen, thanks so much for joining us here on the Radio Free Hillsdale Hour.19:54S4
Thank you very much, Scott.19:55S3
Up next Carson Holloway is with us. We’ll talk about his new book, No Liberty to Libel. I’m Scott Bertram. This is the radio free Hillsdale Hour. Welcome back to the Radio free Hillsdale Hour. I’m Scott Bertram. Be sure to find more great Hillsdale College audio on Hillsdale College Podcast Network. You can find it [email protected]. Older editions of this show, plus more from The Larry Arnn Show, Imprimis and the Hillsdale College Online Courses podcast, wherever you get your audio. We’re joined by Carson Holloway. He’s department chair and professor of political science at the University of Nebraska Omaha and a Washington fellow in the Claremont Institute Center for the American Way of Life. His brand new book is No Liberty to Libel The Constitutional Case Against New York Times v Sullivan. Carson, thanks so much for joining us.21:05S2
Thank you for having me, Scott. I really appreciate it.21:07S3
I have to say, I enjoyed the the typeface on the book, which makes it look like it’s New York Times type typeface. I’m sure that was somewhat intentional.21:15S2
Yes, yes. I think they did a great job encounter books did an excellent job with the look of the book.21:20S3
Very good. All right. So look, there’s a there’s a subset of Americans who likely have no idea what we’re about to talk about, which is libel law. And New York Times v Sullivan. Take us inside. Why New York Times v Sullivan matters. why? It’s an important First Amendment case. And then after that, we’ll get into why you think it’s wrong.21:39S2
Okay, that sounds great. New York Times versus Sullivan is considered by practically everybody to be one of the great landmark First Amendment freedom of the press rulings of modern times. It was decided by the Supreme Court in 1964, the Warren Court Justice William Brennan, one of the very consequential justices, a liberal justice, wrote the opinion for the court in that case. And the opinions important or the ruling is important because it changed the libel standards that the country has for public officials. And then later, the court extended the new standards to public figures as well as public officials. Libel, of course, is when people sue for defamation for the publication of false information that damages their character. And the court decided in New York Times versus Sullivan that libel cases involving public officials. And then, as I say later on, public figures raise a First Amendment problem. They. They create a problem in relation to the freedom of the press that the First Amendment is supposed to protect. So seeing that problem in the court’s mind, the justice’s mind. In 1964, they came up with a solution for that problem. And that solution is called the actual malice test or the actual malice standard. What the court said in the Sullivan opinion was that if you are a public official and you sue to protect your reputation in a libel suit, you will have to show not only that the publication about you was false and defamatory or injurious to your reputation. You’ll also. That’s what ordinary people would have to show, right? You’re going to have to show something else in addition to that, which is that the publication was made with actual malice. And that’s a technical term that the court devised to mean the following. Either the publisher knew that it was false, or they published with reckless disregard for the truth or falsity of the report. So I would say the significance of New York Times versus Sullivan is that it sets up under the allegation that the First Amendment requires this. It sets up a two tiered libel system in which ordinary people basically have to show that they were defamed by a false report, and public officials have to show that, plus this actual malice. Right. And one other thing I’d like to say about that, just by way of clarifying what it means in practice, the court was very clear in subsequent cases in which it elaborated on the doctrine that actual malice is something far more extreme and far worse than ordinary negligence. So basically what it means is it gives the press running room to be negligent with the reputations of public officials and public figures, because they’re going to have to show something worse than negligence. They’ll have to show, again, actual malice. And in practice, it turns out to be very hard to meet that standard, which is why there are not very many successful libel suits brought by public figures in the kind of Sullivan era.24:33S3
Come back to that question about reputation a little bit later on in the conversation. Americans today, I would guess a good number of them assume that freedom of the press means that there is broad protection, even for false statements about public officials. Is that how the founders understood freedom of the press?24:50S2
No. I think we are laboring under a delusion that’s been created by the Supreme Court. The founders, of course, did value freedom of the press very highly, including a kind of wide ranging and brawling culture in which you’re going to be criticized if you’re a public official, for sure. But they did not think about it in the same way that the court did in New York Times versus Sullivan. My book is an originalist argument, so I’m basically saying the courts departed from the original understanding of the freedom of the press that’s embodied in the First Amendment and in the broader public and legal culture of the founding. You know, there were protections for freedom of the press in many of the state constitutions. It’s not just a federal issue. So let me go back a moment to what I said about the Sullivan court. When I said they saw a problem, they saw that a libel suit involving a public official is impinging on freedom of the press. See, I think that’s the first error. The founders did not look at it that way. Their view was simpler. It was derived from what they learned from Blackstone’s commentaries on the laws of England. And it’s based upon the kind of classical moral distinction between liberty and license or licentiousness. I think the founders believed that libel, in the sense of defamatory, false publication about somebody, is simply outside the scope of the freedom of the press. It’s something that’s not protected. And in fact, there’s a long tradition in the Supreme Court and American courts prior to New York Times versus Sullivan, in which the justices or judges would say, kind of transmitting that tradition, that libel is one of the forms of unprotected speech, along with obscenity and fighting words and things like that. It’s not the kind of expression that was intended to be protected by the freedom of the press. It’s an abuse of the freedom of the press, or it’s an act of licentiousness that is outside the lines, so to speak. So the founders would not have thought that this kind of suit raised the kind of problem that the New York Times court thought that it did. And the other part of my argument would be that there’s nothing like the idea of actual malice in the thought of the founders not seeing this problem. They don’t devise the solution. There is some ways in which they would say that the standards are different in a libel case for public officials versus ordinary people. And I can talk more about that if you want me to explain that. But suffice it to say, in relation to what the court did in the Sullivan decision, there’s nothing like the actual malice doctrine at the time of the founding. They don’t think that a certain class of people have to prove something extra in order to prevail in a libel suit.27:25S3
Let’s talk about some guys with Carson Holloway, the author of the new book No Liberty to Libel, James Wilson, James Kent, Joseph Story, these legal commenters of the early Republic. Did any of these thinkers from the early Republic anticipate this more modern argument that public figures, or just some figures, should receive less protection than from libel than private citizens?27:50S2
Right. Yeah, they don’t anticipate that. And let me explain using them what I was hinting at just a moment ago. They do. They’re building on Blackstone, who I mentioned before. These are Americans of the early Republic who are great jurists and great legal commentators wrote big, massive, learned treatises on American law. They do anticipate the idea that the standards would be different for a public official versus a private person. In the case of the truth defense for libel. Now, let me explain the background to that just a little bit. Blackstone, the great English legal commentator, made clear that according to the common law, a criminal libel could even be a true statement because, he said, the libel, the criminal libel laws of the English common law are looking to prevent breaches of the peace more than they are looking to protect reputation. And since a humiliating publication about somebody that happens to be true might provoke them to violence, you could be punished for a true publication under the English common law. The founders liberalized that and come up with a more permissive and they thought, a more reasonable standard, which was that there ought to be a truth defense in a criminal libel proceeding. Alexander Hamilton, in the famous case, people versus Croswell, New York, case from around 18031804. Maybe. Hamilton said the truth defense should be understood as. You can defend yourself against a charge of libel. If what you published was true and published with good motives and for justifiable ends. Now that tells you that they understood the truth defence as being qualified. If you publish something true about somebody out of pure desire just to hurt them or to humiliate them in front of the public, you might still be, you know, liable for libel, so to speak. So where they’re anticipating a different standard for public and private people is that they basically all say, especially Kent, that, uh, there should be much more running room for a truth defense if you’re dealing with a public official. Right. Because the people have a right and a need to know about that person’s character. So if what’s published is true and actually relevant to your reputation, we’re going to give you more room to make that defense. But they all talk as if the publication is false and defamatory. Then if you’re the defendant, you lose already. Right. They’re all pretty close to what you might call strict liability for false defamatory statements. So there’s nothing in them to anticipate what the Sullivan Court is doing, which is creating a kind of protection even for publications that are admittedly false and that are damaging to reputation.30:33S3
That’s Carson Holloway. His book is No Liberty to Libel. We’ll continue with him in just a moment. First, I want to make sure you are aware there’s a brand new episode of The Larry Arnn Show available now, talking about leadership, talking about being a Navy Seal. Leif Babin is Doctor Arne’s guest. He’s a former U.S. Navy Seal officer, co-author of The New York Times best seller Extreme Ownership How U.S. Navy Seals Lead and Win, and co-founder of Echelon Front. They’ll talk about the lessons that he learned about leadership from his time in the Middle East, what real ownership, humility and command under pressure looks like from someone who’s learned the lessons the hard way and the challenges and threats America’s military faces. Today, Doctor Arne asks the questions Leif Babin provides the answers. The brand new episode of The Larry Arnn Show is available now. Find it at YouTube for the full video version. You can also find the audio version wherever you get your audio, including podcasts.hillsdale.edu. Check out the brand new Larry Arnn show. We continue with Carson Holloway, his new book, No Liberty to Libel The Constitutional Case Against New York Times v Sullivan Libel Law here in the U.S., Carson chapter four begins this look at the case itself New York Times v Sullivan and the Brennan majority opinion, which relied on discussions around the Sedition Act of 1798. And you argue that this use is I think it’s opportunistic and unconvincing, meaning that it’s it’s it’s sort of using originalist language when the opinion of Brennan is not originalist in any real way. Is that is that about right?32:24S2
That’s right. Like I said, I’m making an originalist critique of Brennan’s opinion, especially what the court did in the Sullivan case. He does have a kind of originalist window dressing, I would say, in his appeal to the Sedition Act controversy, which you just mentioned, and which takes up a few paragraphs in the opinion. And if you want to argue for a very permissive or libertarian approach to freedom of the press and freedom of speech, you can get some mileage out of great American founders like Thomas Jefferson and James Madison, who were opponents of the Sedition Act of 1798. But I think that that’s not a convincing argument. So let me try to explain that here. Basically, what Brennan does is to show that the Sedition Act included a truth defense along the lines of what we were talking about before. Nevertheless, it was assailed as unconstitutional by great men like Madison and Jefferson. So Brennan concludes from that. And also we should say that the Sedition Act was kind of, as Brennan points out, repudiated by the country. Right. The Jeffersonians won overwhelmingly in 1800. And and, uh, the Federalists took a real beating, and the country seemed to come around to the view that the Sedition Act was not constitutional. So the lesson that Brennan wants to derive from this is that there is evidence at the time of the founding that even false statements that are defamatory are protected by the First Amendment. I find this unconvincing because, frankly, Madison and Jefferson are arguing in the Sedition Act controversy that Congress has no power at all over the press because there’s no enumerated power in the first place. And then they think that’s confirmed by the First Amendment’s protection of freedom of the press. When people would say to them, in the context of that controversy, wouldn’t it be terrible if public men had no way to vindicate their reputation? Their response is, well, they can sue in the States, they can sue in state court where they can bring a libel suit. So I think that the the use of the Sedition Act controversy by the Brennan opinion in the Sullivan case is opportunistic and unconvincing, because it’s really proving something that the Sullivan Court doesn’t even affirm, namely, that there is no power at all in the federal government over the press. That’s not really a position that many people would defend these days. And in any case, it’s not a position that has to do with the meaning of the constitutional concept of freedom of the press.34:51S3
You really can’t find Madison or Jefferson saying that public officials would have to demonstrate actual malice, say, to approve, to prove their case in a in a state libel proceeding. And in fact, they try to reassure people in various places, including in one of Jefferson’s inaugural addresses, that it’s perfectly legitimate for public officials to have recourse to libel law, to vindicate their reputations in that inaugural address, Jefferson kind of makes a show of saying, you know, I didn’t sue anybody because I’ve got better things to do. The administration has a lot of work to do. But he says that’s not to denigrate the purpose of libel law implicitly, even for public officials.35:31S3
Carson Holloway with his book No Liberty to Libel. There’s a chapter in which you go over a number of cases, some including Teddy Roosevelt. Um, these cases through the through the 1900s, including were courts generally capable of protecting vigorous public debate before this actual malice standard, before New York Times v Sullivan.35:53S2
I think so. Um, now, this is one of the big arguments about what would be the consequences of going back on New York Times versus Sullivan. A lot of the arguments that I find that are made are consequentialist in their character. I think it’s very hard to be an originalist and think that the Sullivan opinion is correct. But a lot of people have worries about abuse of libel law to silence people and stop them from criticising the government or criticising public officials. That’s understandable. I mean, I think as someone who’s fairly conversant with American political history, that our our history shows that our public discourse has been pretty candid and powerful and even brawling a lot of the time, even in the old days when when a public official or a public figure could bring a libel suit under the old standards. Interesting remark on this, by the way, is by one of the great jurists of the period. You were mentioning, William Howard Taft, who of course, later went on to be president of the United States, and Chief Justice. I’m talking about a period in his life where he was a federal judge, and he heard a libel case involving a public figure, we might say, a candidate for the House of Representatives. And, um, some of these arguments that the court relied on in New York Times versus Sullivan were brought up, or versions of them were brought up by the newspaper trying to defend itself. And basically Taft. This is in the late 19th century, batted those away and said, well, the standard really is that if, uh, if it’s false and defamatory, you’re going to have to answer for it. And then he talked about this concern that, uh, to use a term that the, uh, gets used much later on, that there would be a chilling effect on properly protected speech by this danger of libel. Taft just says, and it’s based on his observation at the time, he goes, nobody who knows the politics of Great Britain or the United States would think that the press is unduly hindered in its commentary on what public officials are doing. So, I mean, I take him as a serious observer of the scene. And yeah, I think that, uh, you did have a robust public discourse, even though there was a danger of libel suits. One other thing to remember on that, by the way, is that it ought to be possible, ordinarily, to have a very forceful discourse about public issues without defaming somebody’s character. Right. I mean, sometimes it’s necessary to do if someone really is guilty of wrongdoing and therefore disqualifying disqualifies themselves for public office. But I think one of the problems with the culture that’s created by the Sullivan Standard is that it permits so much running room for attacks on reputation that it distracts us from what we really ought to be concerned with, which is debates about public issues and what policies to pursue rather than, you know, often unconfirmed reports about alleged wrongdoing by public officials.38:46S3
Carson, a couple of things I picked up while reading No Liberty to Libel. There seems to be this underlying argument at times that that reversing New York Times v Sullivan is also additionally a benefit, a way to fix our media. Right. There’s so many issues people don’t trust the media. Overturning New York Times v Sullivan. Does that have the ancillary benefit of perhaps, uh, Improving media’s standing among Americans.39:15S2
I hope so. Um, again, the core of my argument is kind of a principled, legalistic or constitutionalist originalist argument. I think one of the key benefits, therefore, of reversing New York Times versus Sullivan would be simply returning to the country to the correct understanding of the First Amendment. Another benefit would be creating better protection for reputation, which the founders did think is a very important right. Just as important as property or personal security. It’s a natural right, I think, in their thinking. But there is this other problem, which is, as I mentioned in the book, trust in the media is at a very low point. I don’t know if it’s at an all time low, but it’s not great. The publisher of The New York Times gave a speech about this a couple of weeks ago, and he even admitted this and kind of blamed it on President Trump for his attacks on the media. But I think it’s more plausible that the media’s reputation is at a low point because they report a lot of hysterical charges that are designed to damage the reputations of certain public officials that don’t always pan out and don’t turn out to be true. So they generally Revere the ruling because they think it’s essential to their work. But I would counsel them to reflect on the fact that the way they’re doing their work undermines the public’s confidence in them. And so it might be better if there were a legal standard that were more strict to hold them, to be more careful about the reputations of the people on whom they’re reporting more careful of the truth generally. I mean, I would say one more thing about that, though, since I mentioned the expression truth, even if you were to reverse New York Times versus Sullivan, there would still be a lot of room for media to make mistakes and even to publish things that turn out to be not true, because libel is not an action against any untrue statement. It’s an action against one that’s damaging to an individual’s reputation. So even if you had the older standards, there could still be a lot of fake news. But I think having the older standards would nevertheless encourage a greater respect for truth in relation to the reputations of leading public figures and public officials, which would help our public discourse. And this is, by the way, the way a lot of the early jurists talked about it. And I go over this in the book, you’ll find the early Republic judges saying things like, well, the public has an interest in knowing only the truth about the people they entrust with public authority. So they, you know, they think that the standard is helpful to keeping the public discourse the way it should be.41:48S3
Carson, you write in no liberty to libel that reputation is a right as precious as any other. The public has a vital interest in receiving true info about public figures. I know it’s an originalist argument, but in this social media age, when false claims can can rattle around all that more quickly, Does the argument against Sullivan then become even stronger when it comes to reputation?42:14S2
Yeah, I think so. Um, we are living in a new age technologically, in which anybody can publish anything almost instantaneously. Uh, and we need to think through how to handle that. And even correcting our constitutional interpretation won’t solve all of our problems because you need legislation, uh, to protect reputation, you need libel law. And it may be that things need to be treated differently depending upon how they’re published or what kind of platform is used. But it’s an old principle, I think, of defamation that, you know, slander is spoken, defamation libel is published, defamation. And the traditional approach was to treat slander as less serious because less damaging. If you publish something, you’re basically telling it to the whole world in principle. But if you simply say something, the reach of that may not be as great. So the sense was that the threat to reputation and the damage is worse in a libel case. But now we live in a situation in which practically anybody can publish their thoughts immediately and kind of individualistically through these social media platforms. So there’s a lot of there’s just a lot more publication going on, and it might require some thinking that I admit I haven’t done yet to figure out how to regulate those kinds of things. Um, and maybe treat them differently from what other like more formalized publication is doing. But the underlying principle we would get from the founders would certainly be that there has to be accountability for people’s right to publish and to speak, because you can’t use those precious rights in such a way as to damage the rights of other people, namely, their right to reputation.43:50S3
Carson Holloway is a department chair and professor of political science at the University of Nebraska, Omaha. In a Washington fellow in the Claremont Institute’s Center for the American Way of Life. His brand new book is No Liberty to Libel The Constitutional Case against New York Times v Sullivan. Carson, thanks so much for joining us here on the Radio Free Hillsdale Hour.44:12S2
Thank you for having me, I appreciate it.44:14S3
That will wrap up this edition of the Radio Free Hillsdale Hour. Our thanks to Doctor Ben Whalen from here at Hillsdale College, your teacher for the new online course, The Odyssey. Find it now at hillsdale.edu/course. hillsdale.edu/course. And Carson Holloway, his book is No Liberty to Libel. Remember, you can hear new episodes every week on this station. You also can find extended versions of some of our interviews, or listen anytime to the podcast. Find [email protected] or wherever you get your audio. Until next week, I’m Scott Bertram, and this has been the radio free Hillsdale Hour.
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