Happy Law Day

A free society needs free speech and a free press

By Gerald Williams

Law Day is held annually in the United States on May 1 to celebrate the rule of law. The theme of 2019 is: Free Speech, Free Press, Free Society.

Should First Amendment free press protections be absolute? Should private individuals have a greater right to privacy than celebrities? Should states have the ability to determine their own levels of protection given to journalists? How you view these questions may depend on how you view our First Amendment protections.

A free press is an important check on government power. In a republic such as ours, for voting to be meaningful, the voters must be aware of what is happening. Even those often-annoying political advertisements have First Amendment protection.

In a famous case, a police commissioner named Sullivan claimed that he was libeled in an advertisement that ran in the New York Times. The ad alleged that a variety of human rights violations occurred in Alabama in connection with the civil rights movement, including an implication that Sullivan had been involved in the bombing of the Rev. Martin Luther King’s home. The commissioner filed a lawsuit against the New York Times and won; but the case went all the way to the U.S. Supreme Court on appeal.

In New York Times v. Sullivan, Justice William Brennan wrote that while public officials can bring actions for libel and for slander, they cannot win unless there is clear and convincing evidence that the statement was made with malice. Malice means actual knowledge that the statement was false or that there was a reckless disregard as to whether it was true or false. In short, if a public figure wants to sue either print or broadcast media for defamation, in accordance with the First Amendment, he or she must prove that they knew it was or was likely false; but ran the story anyway.

Such a high standard is frequently impossible to prove; but it remains appropriate. Our founding fathers knew members of the press must feel free to criticize government officials, even if they sometimes get details wrong.

James Wilson, who signed the Declaration of Independence, was also a key framer of our Constitution. On October 6, 1787, he spoke to his fellow Pennsylvania citizens in support of the proposed federal Constitution, which did not yet include a Bill of Rights. While he believed a free press should not be controlled by the newly suggested federal government, he also believed that a Bill of Rights was neither necessary nor appropriate.

The draft Constitution gave the government no authority to regulate a free press. Mr. Wilson wrote, “If, indeed, a power similar to that which has been granted for the regulation of commerce had been granted to regulate literary publications, it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate.”

He believed future generations of federal government leaders would not attempt to govern in areas that were not specifically authorized by the Constitution. Of course, he was wrong.  

Judge Gerald A. Williams is the Justice of the Peace for the North Valley Justice Court. The court’s jurisdiction includes Anthem and Desert Hills.

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