Should New York Times v. Sullivan Be Overruled because of The New York Times?

by Alan M. Dershowitz • March 24, 2021 at 5:00 am

The result of this decision has been open season on public figures. The media, and their lawyers, are aware of how difficult it is to prove malice. So in order to sell their product, many are prepared to print obvious falsehoods, exaggerations and outright lies about political opponents and others.
People at the top of CNN made a deliberate decision to doctor the recording so as to eliminate my carefully chosen words "unlawful" and "illegal." Then they had their paid commentators go on prime-time TV and falsely proclaim that I had said that a president could not be removed even if he did things that were unlawful or illegal. In other words, they doctored the recording to make me say the exact opposite of what I said.
Despite having been the target of deliberate media defamation, I am not in favor of a total overruling of New York Times v. Sullivan. In order for the First Amendment to thrive, the media must have the right to make honest mistakes: that is the right to be wrong.
"All the news that's fit to print" has become "only the news that fits our biased narrative."
I would propose a sliding scale, whereby the more serious and hurtful the defamation, the greater the media's obligation to engage in due diligence to determine whether or not it is truthful or false. If they fail to exercise due diligence, they can be held liable for defamation.

In a striking dissenting opinion, the highly respected Court of Appeals judge, Laurence Silberman, urged the Supreme Court to reconsider and perhaps overrule the leading case of New York Times v. Sullivan. Pictured: Silberman (right) on March 31, 2005. (Photo by Mark Wilson/Getty Images)

Previously, a public figure could sue a newspaper, or other media, if they defamed him. In that case, The New York Times had run an ad defaming a southern sheriff during the era of civil rights conflicts. The Supreme Court ruled that a newspaper could not be held liable for defaming a public figure, unless the defamed person could prove that the newspaper acted with malice, which it defined as knowing falsehoods or reckless disregard for the truth.

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Alexei Navalny: "Prepared to Lose Everything"

by Jiri Valenta and Leni Friedman Valenta • March 24, 2021 at 4:00 am

"I think that the ban of Donald Trump on Twitter is an unacceptable act of censorship... Don't tell me he was banned for violating Twitter rules. I get death threats here every day for many years, and Twitter doesn't ban anyone ...." — Alexei Navalny, Twitter, November 9, 2020.
Among the people who have Twitter accounts are cold-blooded murderers (Putin or Maduro) and liars and thieves (Medvedev)... Of course, Twitter is a private company, but we have seen many examples in Russian and China of such private companies becoming the state's best friends and the enablers when it comes to censorship. — Alexei Navalny, Twitter, November 9, 2020.
"If you replace 'Trump' with 'Navalny' in today's discussion, you will get an 80% accurate Kremlin's answer as to why my name can't be mentioned on Russian TV and I shouldn't be allowed to participate in any elections." — Alexei Navalny, Twitter, November 9, 2020.
"This precedent will be exploited by the enemies of freedom of speech around the world. In Russia as well. Every time when they need to silence someone, they will say: 'this is just common practice, even Trump got blocked on Twitter'." — Alexei Navalny, Twitter, November 9, 2020.
"The election is a straightforward and competitive process. You can participate in it, you can appeal against the results, they're being monitored by millions of people. The ban on Twitter is a decision of people we don't know in accordance with a procedure we don't know..." . — Alexei Navalny, Twitter, November 9, 2020.
"This [imprisonment] is happening to intimidate large numbers of people. They're imprisoning one person to frighten millions. This isn't a demonstration of strength — it's a show of weakness." — Alexei Navalny, Radio Free Europe, Radio Liberty, February 3, 2021.

Russian opposition politician Alexei Navalny was nearly murdered in August by poisoning with the nerve-agent novichok, and on February 2 was sentenced to two and a half years in a penal colony for an alleged parole violation. The resultant protests in support of Navalny have been attended by tens of thousands of citizens in more than a hundred Russian cities. Pictured: Navalny attends a hearing inside a glass cell at the Babushkinsky District Court in Moscow on February 20, 2021. (Photo by Kirill Kudryavtsev/AFP via Getty Images)

The near-murder of Russian opposition politician Alexei Navalny by the nerve-agent novichok last August, his return to Moscow in January, and the resultant protests attended by tens of thousands of citizens in more than a hundred Russian cities, raise the question of how long the Russian people will continue to tolerate President Vladimir Putin's repressive acts against political enemies and rivals.

The crowds were rallying in support of Navalny after his return to Moscow on January17, 2021 from medical treatment in Germany, some in temperatures of -60 degrees Fahrenheit. The police, attacking the protestors with batons, arrested more than 3,300 people.

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