January 2013 LAW AND SOCIETY Spring 2013 / Louis D. Brandeis School of Law / University of Louisville Donald Vish, lecturer True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. ****Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment. -- MARCUS TULLIUS CICERO De Re Publica, De Legibus book 3, paragraph 22.trans. Clinton W. Keyes, p. 211 ________________________________ Course Description This course addresses the question: What is the source (s) of law and the basis of its enforceability and legitimacy? The centerpiece of the course is Herman Melville’s novella Billy Budd Sailor: An inside narrative. Three of the seven classes will be devoted to Billy Budd. Two classes will cover Cicero's Laws and limited excerpts from On Duties, one of the most influential texts of Western civilization. One class will review a three-chapter selection from Alexis de Toqueville's Democracy in America describing and analyzing the law of laws and the role that custom and culture play in law making. The class topics may be summarized as follows: Class #1: Introduction and Overview: the Law of Laws Class # 2: Toqueville, Democracy in America Chapters 2, 3 & 4 Class #3 & 4: Cicero “De Legibus” books I, II & III. Class # 5, # 6 and # 7: Melville, Billy Budd, Sailor: An inside narrative. (The discussion of Billy Budd is scheduled to begin upon return from Spring Break). Objective of the Course What is the objective of the course? This course is designed to introduce the student to the theoretical sources of law and the basis of the law’s legitimacy and enforceability. What is the course about? The course is about law making, not in a parliamentary sense but in a philosophical sense, not in a technical context but in an ideological framework. It is about the confluence of political power, the exigency and temper of the times as well as the more enduring influences of culture, customs, manners and values and priorities of the people that come together to produce law. Ultimate Questions Posed by the Course Every lecture, every class and text considered in the course raises the questions: What is the ultimate source of law? Where does the law derive is legitimacy and its enforceability? This course is about the law of laws. Where do laws come from: God or nature or reason or common consent or custom or wisdom, or necessity or convenience or the interest of the stronger? Class Dates: January: 8th and 22nd February: 5th and 19th March: (Spring Break is 11th thru the 17th) 5th and 19th April: 2nd and 16th (Reading Day is 4-23 and exams begin 4-24). Course Syllabus Basis of grading: Pass//Fail. The Pass//Fail grade will be assigned on the basis of a take home Final Exam which will entail a straightforward essay request: “What are the sources of law and what is the basis of the laws’ legitimacy and enforceability?” The answer must be completed in two hours so as to not covert the final exam into a formal paper. A passing grade will be earned by answering the question in a way that demonstrates familiarity with the assigned texts and some personal, analytical reflection on the subject. You may contact me directly at or you may communicate through a class ombuds committee of three students that will be appointed to facilitate presentation of any complaints, suggestions or requests that an individual student may not want to present directly. Class plan: There will be EIGHT classes beginning Tuesday January 8 and ending April 16. Seven class plans have been prepared. With one class meeting unplanned for review and flexibility. The first class is an introductory overview; the second considers three chapters from Tocqueville “Democracy in America; the third and fourth focus on Cicero’s two works, “On Duties” and “The Laws.” The remaining classes will treat extensively Melville’s novella “Billy Budd” and will provide an opportunity to compare and contrast the works of Cicero and Tocqueville DV: January 1 2013//November 24, 2012 In a time of war, the law falls silent. –Cicero [Class Plans Follow] Class 1. January 8, 2013 Where Does Law Come From  Ask the class to make a list  Tocqueville: the people  Cicero: nature (the nature of the people//God)  Melville: convenience OR in time of war laws are silent The Power of the People: the Law of Laws The people reign in the American political world like God over the universe. --Tocqueville 71 ______________________________________________ I will put my laws into their mind, and write them in their hearts."—Hebrews 8:10. After those days, says the Lord, I will put My Law in their inward parts, and write it in their hearts.”
Jeremiah 31:33. Unlike other Greeks, the Spartans never had their laws written down. Instead, they preserved their system from generation to generation with a distinctive, highly structured way of life based on Class 2 (Toqueville). January 22, 2013 Where Does Law Come From: Democracy in America Chapters 2, 3 & 4: The Power of the People: the Law of Laws Assignments for Class #2: Introduction: The Power of the People, Money and Property 1. Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335]. The discussion of Tocqueville will extend over the first four classes. Read Section III of the Introduction by Kramnick in its entirety, pages xxiv through xxxvii and pages xliii through xlvii, the concluding part of Section IV. Also read the author’s Introduction (an excellent historical description of the interplay between law and social policy) pp. 11-16: A new political science is needed for a totally new world. [16]. 2. Tocqueville Chapter 2 pp. 36-58 (always read the introductory head notes at the beginning of each chapter). This chapter is an overview of the social, cultural, religious mix that the United States is. It sets the course for the course. Many of its specific topics will be treated in more detail in ensuing classes: the national character, common language, equality, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition or support?) the relationship between law and social conditions. 3. Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64]. 4. Tocqueville Chapter 4 pp. 68-71 “The Sovereignty of the People”: The people reign in the American political world like God over the universe. [71].The collective will of the nation, two impediments to progress before independence, its role in all things. Class 3 & 4 (Cicero) February 5 & 19, 2013. Assignments for Class #3: Introduction: 3. Cicero “De Legibus” books I, II & III. 4. 1. Cicero, On Duties. On Duties, or On Obligations, has generally been the most popular of Cicero’s writings, and perhaps exercised more influence on thought and standards of the western world than any other secular work ever written. Michael Grant, Penguin Classics (1971): Book I. VII, 20 [role of justice and kindness], 21 [private property], 22 [duties to the state], 23 [foundation of justice], 24 [reason for crime], 26, 27 [injury and injustice], 28 [passive injustice], 29 [self-interest], 31 [the two principles of justice], 33 [chicanery], XI. 33 [limits to retribution and punishment], XIV. 42 [kindness and generosity], XVI. 50 [kindness], 51, 52 [public property], 63 [the soul of justice], 71 [duty to engage in public affairs], 87 [electioneering and scrambling for office], Book II, 49, 50 [winning admiration through law practice], 51 [capital charges against the innocent and defending the guilty], 66, 67[eloquence at the bar], 70, 71 [representing the poor], 74 [property taxes], 78-80 [agrarian laws], 83 [impartiality], 84 [debt and public safety], 85 [courts of equity], Book III, 54-57, 65-67 [a seller’s duty to disclose], 60-61 [criminal fraud], 69 [civil law versus moral law], 70 [good faith in contracts], 97 [doing evil to do good]. How would Cicero resolve conflicting duties? “The historical roots of casuistry can be found in ancient Rome and Greece.  Cicero, the great rhetorician, described early casuist methodology in his work, On Duty (106-43 BCE).  In it he states that “we need to consider ‘what is most needful in each individual case,’ … and that different circumstances should be carefully scrutinized in every instance.’” (David Jonsen, The Abuse of Casuistry, 1988 p. 10).  In On Duty, Cicero explores this proposal in cases that he presents where “conflicts of duty appear to arise.” His approach: what is most needful in each individual case, Jeramy Townsley, professor Butler University, 2003, http://www.jeramyt.org/; http://www.jeramyt.org/papers/casuistry.html 2. Cicero, The Laws, Book One, 16-35. Where does justice come from? Is law synonymous with wisdom? 3. Cicero, The Laws, Book Two, 37-40. What does music have to do with law? Why did Athens cut off strings from the instrument played by Timotheus? What would Plato think? See Plato, Laws 3. 700-1; Aristotle, Pol. 8. 5-7, Horace, Ars Poetica 202-19. Confer: Michel de Montaigne, Of Custom (1572-1574) (the last 14 paragraphs of the essay). What is Montaigne’s theory about the source of law? Would Montaigne support the idea of ‘health care reform’ and innovation? Why does Montaigne think the legal reformer should wear a rope around the neck? What does Montaigne think about legal tricks and artifice? The Hebrew Bible, Exodus (21-23ff); Leviticus (24:17-20); Deuteronomy (19:21). Compare with Dante’s concept of "contrapasso" or counter-punishment. Rabelais, On Judge Bridlegoose and Lord John the Loony [from Gargantua and Pantagruel]. HOW PANTAGRUEL PERSUADED PANURGE TO SEEK COUNSEL OF A FOOL through PANTAGRUEL’S STRANGE TALE OF THE PERPLEXITIES OF HUMAN JUDGEMENT. Judge Bridlegoose decides cases by rolling dice. Kafka, The Problem of Our Laws: Our laws are not generally known; they are kept secret by the small group of nobles who rule us … for the laws were made to the advantage of the nobles from the very beginning, they themselves stand above the laws Piers Plowman (14th c.): Neede hath no law. Publilius Syrus, Necessity gives the law, but does not herself accept it. What do the two maxims mean? Who is Ananke (or Anance) and what role does she play in the law. Class Flexible 4-A March 5, 2013 This class is unplanned to allow flexibility as the course evolves. Class 5,6 & 7 (Melville) March 19 and April 2 & 16, 2013. Assignments for Class #5, #6 & #7. Billy Budd - Wikipedia, the free encyclopedia There appear to be three principal conceptions of the meaning of Melville's Billy Budd. Herman Melville, Billy Budd, Sailor (An Inside Narrative) (1924 posthumously). Has any work of American literature generated more antithetical and mutually hostile interpretation than Herman Melville's Billy Budd, Sailor? And all the battles about the moral and political vision at the heart of the tale swirl around one question: Are we supposed to admire or condemn Captain Vere for his decision to sentence Billy Budd to death by public hanging? Somehow, astonishingly enough, nobody seems to have noticed that central to the story is the subject of capital punishment and its history. H. Bruce Franklin Reprinted from AMERICAN LITERATURE, Copyright 1997 by H. Bruce Franklin): See POSNER pp. 122,148-50, 162, 163, 165-173, 179, 181, 242. Is this correct? --end November 24, 2012. DV

Louisville attorney, photographer to bring nature’s healing to renovated hospital | Health | Downtown Louisville News

Louisville attorney, photographer to bring nature’s healing to renovated hospital | Health | Downtown Louisville News

How Do We Enlarge the Great Circle of Compassion?

For delivery April 15, 2012
St. Andrew’s Episcopal Church


Compassion

How Do We Enlarge the Great Circle of Compassion?

A Homily Originally Prepared for Delivery
January 17, 2010
National Coalition to Abolish the Death Penalty Annual Meeting
Louisville, KY

By: Donald Vish

***


Note: 4-15-12: In January 2010, the National Coalition to Abolish the Death Penalty asked me to deliver a homily at an interfaith worship service organized by our Terry Taylor of Interfaith Paths to Peace. At the conclusion of all NCADP meetings the participants join hands and form what they call the great circle of compassion. They asked me to address the topic: “How do we expand the great circle of compassion.” Here’s what I said:

** ** ** **

Thank you for staying for this part of the program--the homily. All the religions of the world agree on one thing for sure: there’s no thief worse than a bad sermon. So special thanks to each of you for your trust and your faith in remaining in this room.

When I was first asked to preach a homily on compassion I said "No. I am willing to preach to the choir but I'm not willing to preach to the pope. What can I possibly say about compassion to an audience that's got Sister Helen and my patron saint Bud Welsh in it? The only thing Sister Helen is going to like about me is that I don't talk with an accent." So, "No way" I said.

But my friend Fr. Delahanty would not take no and cajoled and flattered me into ‘yes.’

So, here I am. 



My invitation to speak so to speak included specific instructions to answer the question:



How Do We Enlarge the Great Circle of Compassion?

I’m going to answer that question. I’m just not going to answer it very quickly. I wouldn’t be a very good preacher if I got to the point too soon.

The Golden Rule: (Say it. You know the words): do unto others as you would have others do unto you.



That’s a good rule of good sense. It’s valuable as a cornerstone of justice. It’s a solid metric for fairness. It’s true in the same way it’s true to say: whoever smiles will always have a reason to smile.



But the Golden Rule is not an expression of compassion.



First, it affirms otherness, thee and me that leads to thine and mine. Secondly, it is ever so slightly animated with self-interest expressing in Elizabethan language what the 3-card Monte dealer says more plainly about the arc of justice: what goes around comes around.



Plato’s dictum comes closer to compassion: be kind, everyone you meet is fighting a hard battle.

Plato’s sermon is built on empathy not compassion. Empathy is based on perception, understanding. Empathy is neither sympathy nor pity each of which relates to the adverse impact someone else’s suffering has on us!

Sympathy means ‘fellow feeling’ and requires a certain degree of equality. Pity, on the other hand, regards its object as weak and hence as inferior. We have place in Kentucky we call down home. Everybody knows where it is. Down home they like to say pity don't cost nothing 'cause pity ain't worth nothing.

Compassion is the selfless disposition to relieve human suffering. It soars above empathy and sympathy and pity. Compassion is the noblest trait of human nature. Dante would call it caritas, pure love with no expectation of a quid pro quo.



Make no mistake: many good works are built on the Golden Rule, on empathy, on sympathy, on pity and on lesser motives like fame and glory and vanity and self-interest. They all count. But compassion is in a class by itself.

When General Agamemnon was ready to launch 1000 ships to invade Troy, he had two problems: the first one is so typical of blood vengeance—no one knew how to get to Troy. They attacked the wrong country.

Blood vengeance is always ready to act before its ready to act. Vengeance never misses an opportunity to miss an opportunity. It is ever and always aimless and misdirected even though its arc is predictable and certain: it comes around then goes around. 



Like Macbeth’s vaulting ambition, vengeance o’erleaps itself and then falls on itself.

Agamemnon’s second problem was the lack of wind. The ships could not sail. The man had 1000 sail boats and no wind. So he made a bargain with the gods—he sacrificed his daughter for a favorable breeze. Then the ships sailed for Troy and war began.

Agamemnon’s murder of his daughter ensured that he would return home from war to more war. 

Under the law of blood vengeance, his daughter’s mother was obligated to murder him—and she did; and under the law of blood vengeance her son was obligated to murder her—and he did; and under the law of blood vengeance, her daughter was obligated to murder her brother…and so it goes.

The arc of vengeance is as sure and as certain as the laws of mathematics: a series ending where it begins, and repeating itself.

Those words are the dictionary definition of a circle—as well as a complete treatise on blood vengeance.

Like a pebble dropped into a pond, vengeance sends out ripple after ripple each extending its sphere until it runs out of space or spends itself.

Vengeance is a circle. A circle delineates, it defines and separates the inside from the outside. The circle is closed. Any segment of a circle is a curved line.

In architecture, a curved line is pretty but it’s weak. Leonardo reflected on the weakness of curved lines and made an astounding observation: two curved lines when propped up against each other form an arch: one of the strongest formations in architecture. So an arch is a strength created by two weaknesses.



Here’s the answer to the question—enlarge the circle of compassion by never closing it.

Keep the circle open. Reach out, join hands with one another in a tangible display of unity, solidarity and connectedness; but let those on each end extend an open hand to the world at-large as an invitation to others to join hands.

Let the circle of compassion be like Leonardo’s arch, a strength comprised of many weaknesses.




As delivered
January 17, 2010
971 words

#12 Class--Law & Social Policy Review for Final Exam 4-9-12

In process Saturday 8:00 a.m.
Draft

4-9-12

Lecture # 12: Law & Social Policy: Review & Preparation for Final

***

1. Readings:
The scissors adorn by taking away. A French motto.

Literature is the art of sorting though. A French motto.

2. Summary of Classes #1 through #11: How Do You Prepare for the Final Exam?

Materials:
• The Syllabus—look at the four-page introduction and summary. Pay attention to the course objective, what is the course about and the ultimate questions posed by the course. Is justice the aim of both law and social policy? Look at all the quotes. Review broadly the class plans especially where I have made editorial comments in Lecture #1 and # 2 and # 5 and #11 and anything that describes the text, Democracy in America.
• Class # 5 Student Assignments on the big themes of the book functions as an index to the book as does the Class Plan # 4 in the Syllabus).
• Class summaries posted to Blackboard should be helpful. The substantive lectures are EXAMPLES of a broader topic: how law and social policy interact.
• The Text: Democracy in America---chapter 2: page 39: “The readers of this book will therefore discover in this chapter the seed of what follows and the key to almost the whole book”. Also page 816: “ I shall conclude with one general idea which comprises not only all the individual ideas expressed in the present chapter but also most of those which this whole book has aimed to highlight.” Chapters 3 & 4 are also important. Every question will allow you to use some of Tocqueville. While first two questions are about Tocqueville the others will allow you to use his text. I have read the book for you. In the book, pay attention to comments about the book: For example, the main idea of the book is to reveal American laws: see pages 335, 816-817, 49, 57, 58, 71, 319, 335, 357.
• Text: Federalist Papers: two main areas---war powers and how the government is structured. # 47 and #51 on checks and balance and separation of powers. #10 is the most famous (on factions, nature of constitution, dangers of majority rule).


The Big Ideas

• Equality,
• Freedom
• Judicial Review//Independent Judiciary
• Lawyers
• Free Press
• Threats of Majority Rule//Tyranny of Majority
• Liberty and Religion,
• War Powers
• Social Conditions and the Law (Sources of Law)
• The social //civic profile of America: Materialism, love of money, love of comfort, security, conformity, individuality, order, practicality, associations (factions).


3. Final Exam—specific questions considered
4. Administrative Time to allow students to complete written review of course//professor

#11 Class--Marriage and Sexuality 4-2-12

4-2-12

Lecture # 11: Law & Social Policy: Family & Marriage

***

1. Readings: none


2. Summary of Class #10: War Powers

In the first class we examined the Power of the People; the second, the Power of the Judiciary; the third the Power of the Legislature; the fourth the Power of the Executive Branch in the fifth we reviewed social, political and governance themes and issues treated by Tocqueville in his classic work, Democracy in America. The sixth class concerned the Death Penalty, the seventh class considered Race. In the Eight we covered libel, the Ninth Corporate Political Activity and the last class, the Tenth, we reviewed War Powers. Here’s what we’ve learned:

The ‘war powers’ class brings us to a new place----The invitation for conflict about the scope, operation and meaning of the war power is built into the constitution itself. Article I of the Constitution gives Congress the power to declare war but Article II makes the president the commander in chief. Our textbook writer says this feature of the constitution is an invitation to struggle over control and conduct of war. The judiciary has rarely intervened in the struggle mainly because of the political question doctrine—that doctrine declares off limits judicial review of issues that are essentially political decisions.
What is the evolutionary process by which laws come to reflect changing social policies (short of outright amendment to the law or adoption of new statues)? What’s the algebraic equation, what are the metrics, how do we track it, measure it, quantify it? The substantive lectures on the death penalty, libel, school segregation, corporate political activity, war powers, marriage are not the text—they are the footnotes to the text, illustrations of the various METHODS by which changing social policies impacted the law. Here is a list:

1. Judicial review (interpretation by its very nature is an evolutionary process). When a court is guided by broad principles, constitutional principals, change is built into the model. Examples:
2. The 8th Amendment, evolving standard of decency. Example: the death penalty. This was relatively easy concept for us to grasp. Changing mores are actually consulted to reach a result. The process is direct, deliberate and open although the steps may be open to contention (for example, whether foreign law or the opinions of experts is a legitimate consideration).
3. Racial separation in public education presented a more difficult challenge. Here the conduct that would be disapproved of was actually authorized by law. So social science was used to prove that the law’s requirement of equality could not be met through separation. Science, or more particularly social science, was used
4. Unlike the death penalty case where the was in place a constitutional concept to deal with the change in social policy or the race cases where science was used to give new meaning to old language, the libel case was somewhat of a blank slate. The defamation case didn’t fit any specific provision and there was no helpful legislative history; in fact, what little history was available was not helpful because private tort cases didn’t seems to involve state action. So here the social policy was reflected in overarching purposes of free speech and the important role it plays in democracy. Perhaps we might say the result was ‘necessary’ to vindicate broader values.
5. We learned the ‘commerce clause’ was the legislative entre into new fields and, if you will, new ways of thinking; that ‘cruel and unusual punishment’, ‘due process of law’ and ‘equal protection’ of the law were the concepts that allowed judicial review to enter new fields and new ideas about the law, justice and social policy.


3. Summary of Class #11: Sexuality and Marriage

Tonight we consider something new: FUNDAMENTAL RIGHTS. Unlike the death penalty cases that invoked an evolving standard of decency or the school segregations cases that used social science to define the parameters of equal protection of the law or the laws of necessity and implication to animate the meaning of free speech in the libel context and war powers, the issues regarding marriage and sexuality are no where mentioned in the constitution---we’re dealing with a blank slate.


4. Student Assignments Class # 11 Family & Marriage

Lecture #11: Family
[April 2, 2012]
I hold it to be an impious and detestable maxim that, politically speaking, the people have a right to do anything; and yet I have asserted that all authority originates in the will of the majority. Am I, then, in contradiction with myself? Tocqueville 292.
It is the very essence of democratic government that the power of the majority should be absolute. –Tocqueville 287
___________________________
Assignments for Class #11: Marriage, Procreation and Sexual Orientation
1. Meyer v. Nebraska 262 U.S. 390 (1923).
2. Loving v. Virginia 388 U.S. 1 (1967).
3. Goodrich v. Dept. of Pub. Health 790 N.E.2d 941 (MA. 2003).
4. Buck v. Bell 274 U.S. 200 (1927).
5. Skinner v. Oklahoma 316 U.S. 535 (1942).
6. Bowers v. Hardwick 478 U.S. 186 (1986).
7. Romer v. Evans 517 U.S. 620 (1996).
8. Lawrence v. Texas 539 U. S. 558 (2003).
9. Chemerinsky Chapter 9 Section 9.7.4 “Discrimination Based on Sexual Orientation” pp.807-809.
10. Chemerinsky Chapter 10, Section 10.2 “The Right to Marry” pp. 818-821 (and cases cited in Section 10.2.1 on Defense of Marriage Act and California’s Proposition 8) (Give special thought to whether the executive branch can refuse to defend a congressional law); Section 10.3 “The Right to Procreate” pp. 829, 833-834; Section 10.4 “Sexual Activity and Orientation” pp. 866-868

___________________________
Assignments for Class #11:  Marriage, Procreation and Sexual Orientation
1.    Meyer v. Nebraska 262 U.S. 390 (1923). JOSH PORTER
2.    Loving v. Virginia 388 U.S. 1 (1967). NATHAN BATEY
3.    Goodrich v. Dept. of Pub. Health 790 N.E.2d 941 (MA. 2003). BRANDI
MELVIN (Can’t attend).
4.    Buck v. Bell 274 U.S. 200 (1927).  BRAD CORBIN (Can’t attend).
5.    Skinner v. Oklahoma 316 U.S. 535 (1942). ZAC RICHARDS
6.    Bowers v. Hardwick 478 U.S. 186 (1986). SARA THOMSON
7.    Romer v. Evans 517 U.S. 620 (1996). LU JESSEE
8.    Lawrence v. Texas 539 U. S. 558 (2003). JASMINE HARDIN
9.    Chemerinsky Chapter 9 Section 9.7.4 “Discrimination Based on Sexual
Orientation” pp.807-809. LAUREN REYNOLDS
10.  Chemerinsky Chapter 10, Section 10.2 “The Right to Marry” pp. 818-821 (and
cases cited in Section 10.2.1 on Defense of Marriage Act and California’s
Proposition 8) (Give special thought to whether the executive branch can refuse
to defend a congressional law);Section 10.3 “The Right to Procreate” pp. 829,
833-834; Section 10.4 “Sexual Activity and Orientation” pp. 866-868. CHRIS ROBERT

Fighting for Peace

July 8, 2011 As delivered
The Temple
Interfaith Paths to Peace Annual “Recipes for Peace” dinner.

Fighting for Peace

My presentation is entitled “Fighting for Peace.” If you like the thesis, come back tomorrow when I will discuss “Having Sex for Chastity.” The idea that war makes peace is as silly as the idea that sex makes virgins.

We are witnessing remarkable progress in the modern world of peacemaking made possible through the art of artful language. War is all but gone—replaced by ‘self-defense,’ ‘police actions’ and most recently by ‘humanitarian interventions.’

But peace is not made through the quiddities and quibbles of lawyers or the rhetorical magic of diplomats. Peace is not linguistics and sex is not chastity.

Nevertheless, on a personal level, the mouth IS the first instrument of peace: but be careful. The difference between the sickle and the sword is the hand of the holder. The way up and the way down are the same.

Sometimes the best thing to do with the mouth is to keep it shut. And the very best way to open the mouth is by smiling.

Thích Nhất Hạnh [tʰǐk ɲə̌t hâːˀɲ] (TICK NYAT HAHN) the Zen Buddhist monk and peace activist said the most basic kind of peace work is the smile—and a compelling bit of folk wisdom holds whoever smiles will always have a reason to smile.

The English say fine words butter no parsnips but the Holy Book and our own experience teaches that a gentle answer turns away wrath as a harsh word stirs up anger. Proverbs 15:1.

I have a one-word recipe for peace: “hello” or if you’re less talkative “hi” works as well. The key is acknowledging people as people, ever mindful of Plato’s insight: be kind, everyone you meet is fighting a hard battle.

A story from the Native American tradition fits well into this night of eating and feeding and feasting in the name of peace.

The tribal elder warned young people of the tribe: inside each of us lives two wolves: one wants peace the other wants war.

Which prevails a youngster asked? The elder’s answer was: that depends on which one we feed.

That’s a good segue into my own recipe for peace: I’ve cast it in ballad rhyme:

Look inside yourself for peace//
and if you find none there//
Quit your search and rest assured//
You won’t find it anywhere.


380 words
July 8, 2011 as delivered: The Temple
Interfaith Paths to Peace Annual Recipes for Peace program
3 minutes





RECIPE FOR PEACE


INGREDIENTS


Egg
Salt
Pepper
Water




INSTRUCTIONS

Submerge the egg in boiling water for ninety seconds, remove, peel, slice and serve with salt, pepper and a smile.




Donald Vish
July 2011

# 10 Class--War Powers: 3-26-12

3-26-12

Lecture # 10: Law & Social Policy: War Powers

***
1. Readings
There are two things it will always be difficult for a democratic nation to do: beginning and ending a war. Tocqueville 755
A lengthy war in a democratic country places freedom under threat. Tocqueville 755

In America, conscription is unknown; men are enlisted for payment. Compulsory recruitment is so alien to the idea and so foreign to the customs of the people of the United States that I doubt whether they would ever dare to introduce it into the law. Tocqueville 260

In a time of war, the law falls silent. --Cicero

“…the Constitution is an invitation for a struggle between the president and Congress over control of the war power.” Erwin Chemerinsky p. 381.


2. Summary of Class #9: Corporate Political Activity

In the first class we examined the Power of the People; the second, the Power of the Judiciary; the third the Power of the Legislature; the fourth the Power of the Executive Branch in the fifth we reviewed social, political and governance themes and issues treated by Tocqueville in his classic work, Democracy in America. The sixth class concerned the Death Penalty, the seventh class considered Race. In the Eight we covered libel and the Ninth Corporate Political Activity. Here’s what we’ve learned about corporations and their right to influence the outcome of elections.


Corporate Political Activity

Since the 19th century, corporations have been prohibited from attempting to influence the outcome of elections. Kentucky’s prohibition is ensconced in its constitution. In the 9th class we examined the current state of state laws that restrict corporations from attempting to impact elections and determined that the 2010 case of Citizens United v. Federal Election Commission broke with past court decisions (saying stare decisis was not a method to compound and carry forward errors) and allowed corporations—legally deemed to be ‘persons’—to spend money—an exercise in political speech—to influence the outcome of elections (but could not make direct political contributions to campaigns). From the perspective of this class—where our principal focus is how the law evolves as a reflection of social policy---we are left with a nagging question. What is the status, the nature, the extent, the scope and purpose of stare decisis? This is the chief object of the concurring opinion by the Chief Justice. Here are some excerpts:

Justice Roberts Concurrence in Citizens United & Stare Decisis
"... if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake." (slip op., pp. 7-8).

And:

"To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect."
http://www.cato.org/pubs/articles/shapiro-nexus-vol16.pdf Excellent article on stare decisis prompted by Citizens United

3. Lecture #10: War Powers: A Debate. Did the President Commit an Impeachable Act by Attacking Libya?

What is the evolutionary process by which laws come to reflect changing social policies (short of outright amendment to the law or adoption of new statues)? What’s the algebraic equation, what are the metrics, how do we track it, measure it, quantify it? The substantive lectures on the death penalty, libel, school segregation, corporate political activity, war powers, marriage are not the text—they are the footnotes to the text, illustrations of the various METHODS by which changing social policies impacted the law. Might we actually list the methods:
1. Judicial review (interpretation by its very nature is an evolutionary process. When a court is guided by broad principles, constitutional principals, change is built into the model. Examples:
2. The 8th Amendment, evolving standard of decency. Example: the death penalty. This was relatively easy concept for us to grasp. Changing mores are actually consulted to reach a result. The process is direct, deliberate, open although the steps may be open to contention ( for example, whether foreign law or the opinions of experts is a legitimate )…..
3. Racial separation in public education presented a more difficult chalange. Here the conduct that would be disapproved of was actually authorized by law. So social science was used to prove that the law’s requirement of equality could not be met through separation. Science, or more particularly social science, was used
4. Unlike the death penalty case where the was in place a constitutional concept to deal with the change in social policy or the race cases where science was used to give new meaning to old language, the libel case was somewhat of a blank slate. The defamation case didn’t fit any specific provision and there was no helpful legislative history; in fact, what little history was available was not helpful because private tort cases didn’t seems to involve state action. So here the social policy was reflected in overarching purposes of free speech and the important role it plays in democracy. Perhaps we might say the result was ‘necessary’ to vindicate broader values.
5. The ‘war powers; class brings us to a new place----The invitation for conflict as to the scope, operation and meaning of the war power is built into the constitution itself; Article I of the Constitution gives Congress the power to declare war but Article II makes the president the commander in chief. Our textbook writer says this feature of the constitution is an invitation to struggle over control and conduct of war. The judiciary has rarely intervened in the struggle mainly because of the political question doctrine—that doctrine declares off limits judicial review of issues that are essentially political decisions.



4. Student Assignments Class # 10, War Powers

Assignments for Class #10:

Debate: Jonathan and Nicolas: “Patriots Debate: The Meaning of the Constitution in a Time of Terror.” ABA Journal, February 2012 pp.29-40 by Louis Fisher (only Congress Can Declare War), Richard Brust (Constitutional Dilemma) and John Woo (War Powers Belong to the President).

1. Brad Corbin: Chemerinsky Chapter 3 Section 3.5.1 “War Powers” pp.
290-291; Chapter 4 Section 4.1 “Inherent Powers” pp.343-348;

2. Zac Richards: Chapter 4 Section 4.3 “Executive Privilege” p.362; Section 6.3 “War Powers” pp. 381—392 (including presidential power and the war on terrorism, detentions, military tribunals).

3. Sarah Thompson: Tocqueville Vol. 2 Part 3 Chapter 22 “Why Democratic Nations Have a Natural Desire for Peace and Why Democratic Armies Naturally Seek War” pp. 750—757;

4. Cathy Barnes:Tocqueville Vol. 2, Part 3 Chapter 23 “A Few Remarks on War in Democracies” pp. 767-773.

5 & 6. Molly Isaacs McLeod and Judith Peoples ( you decide how to divide the work): The Federalist Papers No. 23, 24, 25, 26, 27 (Hamilton) pp. 148-173.

7. Stephanie Carr: The Federalist Papers No. 69 (Hamilton) on executive
branch power pp.414-416 only; and No. 74 (Hamilton) pp. 445-446.

Lecture #10: War Powers
[March 26, 2012]
___________________________
Assignments for Class #10:
1. Chemerinsky Chapter 3 Section 3.5.1 “War Powers” pp. 290-291; Chapter 4 Section 4.1 “Inherent Powers” pp.343-348; 4 Section 4.3 “Executive Privilege” p.362; Section 6.3 “War Powers” pp. 381—392 (including presidential power and the war on terrorism, detentions, military tribunals).
2. Tocqueville Vol. 2 Part 3 Chapter 22 “Why Democratic Nations Have a Natural Desire for Peace and Why Democratic Armies Naturally Seek War” pp. 750—757; Chapter 23 “A Few Remarks on War in Democracies” pp. 767-773.
3. The Federalist Papers No. 23, 24, 25, 26, 27 (Hamilton) pp. 148-173.
4. The Federalist Papers No. 69 (Hamilton) on executive branch power pp.414-416 only; and No. 74 (Hamilton) pp. 445-446.
Montesquieu was cited more by the American founders than any source except the Bible. He was a powerful influence on James Madison, the “Father of the Constitution” persuading him that freedom and stability required a clearly defined and balanced separation of governmental powers.

# 9 Class--Corporate Political Activity as Protected Speech--3-19-12

3-19-12

Lecture # 9: Law & Social Policy: Corporate Political Activity: Social policy, public policy or legal policy?

***

JUDITH: When gold talks all other tongues are silent. –Anonymous

MOLLY: Money is the world’s best deodorant—Dorothy Parker

JOSH PORTER: Money doesn’t stink--Vespasian, the Roman emperor to his son who objected to the vulgarity of his father’s proposal to tax the use of urinals in Rome.

LAUREN: Money is like manure. If you spread it around it does a lot of good. But if you pile it up in one place it stinks like hell--Clint Murchison Jr., former owner of the Dallas Cowboys and one of the country’s first billionaires.

JONATHAN RAYMON: He has an ox on his tongue—A proverbial Greek saying, used to describe the words or the silence of a judge or public official who has been bought. An ‘ox’ is a unit of currency, a coin, in ancient Greece.

NICOLE MADDOX: Pecuniae obediunt omnia—money answereth all things. The Holy Bible Ecclesiastes

NATALIE HUMPHREY: Money often costs too much—Ralph Waldo Emerson

1. Reading (student assignment carried over from Lecture # 8)
CHRIS MONCRIEF: Chemerinsky “First Amendment Limits on Tort Liability” pp. 1078-1088, 1090-1091; Section 6.3.1 “Rejection of Application Before Civil War” pp. 503-509.

2. Summary of Class #8: Libel (in 450 Words or Less) 450 words--- 4 minutes

In the first class we examined the Power of the People; the second, the Power of the Judiciary; the third the Power of the Legislature; the fourth the Power of the Executive Branch in the fifth we reviewed social, political and governance themes and issues treated by Tocqueville in his classic work, Democracy in America. The sixth class concerned the Death Penalty and the seventh class considered Race. In the Eight we covered libel. Here’s what we’ve learned about libel:

Libel—Law & Social Policy or Social Policy & Law?

Tocqueville thought the two most important powers in the United States were the power of the judiciary and the power of the press. In the 8th class we saw them both on display.

The purpose of the First Amendment is twofold: to prohibit the state (here the emphasis on ‘state’) from (1) licensing publications (as had been the practice in England) and 2) conducting prosecutions for seditious libel.
Other than these two purposes, we know nothing about intent behind the adoption of the First Amendment or the meaning of the words ‘freedom of speech.’ Consequently, there is no original meaning or original intent for courts to discern and apply in First Amendment cases. There are, however, four general theories that may be used to explain the cases although no single one explains everything. The four theories about the purpose of the First Amendment are to promote or facilitate: 1) self-governance; 2) truth (J.S. Mill); 3) autonomy of persons and 4) tolerance. No one case explains them all.

In the cases we considered we learned that public figures and public officials must prove ‘actual malice’ in order to recover damages for defamation and related theories of recovery such as infliction of emotional distress.

3. Lecture #9: Corporate Political Activity: Social Policy, Public Policy or Legal Policy?

Since the 19th century, corporations have been prohibited from attempting to influence the outcome of elections. Kentucky’s prohibition is ensconced in its constitution. In this class we shall examine the current state of state laws that restrict corporations from attempting to impact elections. We shall discuss the concept of speech as money, corporations as persons and ‘freedom of speech’ in the context of corporate political objectives.

Lecture #9: Corporate Political Activity: Class Plan, Student Assignments
[March 19, 2012]

The business aristocracy seldom lives among the industrial population it manages; it aims not to rule them but to use them. –Tocqueville 648

Assignments for Class #9:

CHRIS MONCRIEF: Chemerinsky “First Amendment Limits on Tort Liability” pp. 1078-1088, 1090-1091; Section 6.3.1 “Rejection of Application Before Civil War” pp. 503-509.

1. PAIGE: Tocqueville, “How An Aristocracy May Emerge from Industry,” Vol. 2, Chapter 20, pp. 645-648.

2. JASMINE: Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990): corporate wealth can unfairly influence elections [494 U.S. at 660]. REVERSED
in….

3. JACOB: Citizens United v. Federal Election Commission 130 S. Ct. 876
(2010).

4. JOHN BROWN: Kentucky Constitution (1890) Section 151 (Corporation not to use money or other thing of value to influence election).

5. JENN: Chemerinsky, Chapter 11, Section 11.3 “Is Corporate Spending
Protected” pp. 1117-1121; “Spending Money as Political Speech pp.1103-1116. Is money speech? Is spending by a corporation protected political speech? Justice Steven’s dissent in Citizens United v. Federal Election Commission. Criticism of Buckley v. Valeo (1976) holding that spending money is a form of political speech.

1. Tocqueville, “How An Aristocracy May Emerge from Industry,” Vol. 2, Chapter 20, pp. 645-648.
2. Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990): corporate wealth can unfairly influence elections [494 U.S. at 660]. REVERSED in….
3. Citizens United v. Federal Election Commission 130 S. Ct. 876 (2010).
4. Kentucky Constitution (1890) Section 151 (Corporation not to use money or other thing of value to influence election).
5. Chemerinsky, Chapter 11, Section 11.3 “Is Corporate Spending Protected” pp. 1117-1121; “Spending Money as Political Speech pp.1103-1116.

Generally speaking, I think the industrial aristocracy which we see rising before our eyes is one of the most harsh ever to appear on the earth; but at the same time, it is one of the most restrained and least dangerous. However, this is the direction in which the friends of democracy should constantly fix their gaze; for if ever aristocracy and the permanent inequality of social conditions were to infiltrate the world once again, it is predictable that this is the door by which they would enter. –Tocqueville 648

***

Land Shark (1000+ posts) Sat Jan-23-10 11:23 PM
Original message
Citizens United Overrules KY Constitution Outlawing Corporate Influence on Elections



Edited on Sat Jan-23-10 11:35 PM by Land Shark
It is not just federal statutes of recent decades that fall to Citizens United, but state constitutional provisions like the ones in Kentucky below. You can decide for yourself how much of Kentucky's current constitution -- in force for nearly 120 years -- must fall before this single 5-4 vote by the US Supreme Court.

The key provision on Suffrage (I've appended a few on corporations as well) is one prohibiting corporations from "indirectly" or directly "influencing voters." As a penalty for corporate direct or indirect influencing of elections, it provides for revocation of their corporate charter (aka the "corporate death penalty")



The most recent KY Constitution was adopted in 1891, has had 78 amendments sent to voters, but the key provision below, Section 150, has stood unscathed since 1891.

Kentucky Constitution of 1891 (current) SECTION 150



{...} if any corporation shall, directly or indirectly, offer, promise
or give, or shall authorize, directly or indirectly, any person to
offer, promise or give any money or any thing of value to influence
the result of any election in this State, or the vote of any voter
authorized to vote therein, or who shall afterward reimburse or
compensate, in any manner whatever, any person who shall have offered,
promised or given any money or other thing of value to influence the
result of any election or the vote of any such voter, such
corporation, if organized under the laws of this Commonwealth, shall,
on conviction thereof, forfeit its charter and all rights, privileges
and immunities thereunder; and if chartered by another State and doing
business in this State, whether by license, or upon mere sufferance,
such corporation, upon conviction of either of the offenses aforesaid,
shall forfeit all right to carry on any business in this State {...} The
privilege of free suffrage shall be supported by laws regulating
elections, and prohibiting, under adequate penalties, all undue
influence thereon, from power, bribery, tumult or other improper
practices.

Full text at:
http://www.lrc.ky.gov/legresou/constitu/150.htm (adopted in 1891 and
never since amended)

Additional Provisions of Kentucky Constitution Re Corporations



SEC. 190. No corporation in existence at the time of the adoption of
this Constitution shall have the benefit of future legislation without
first filing in the office of the Secretary of State an acceptance of
the provisions of this Constitution.

SEC. 192. No corporation shall engage in business other than that
expressly authorized by its charter, or the law under which it may
have been or hereafter may be organized, nor shall it hold any real
estate, except such as may be proper and necessary for carrying on its
legitimate business, for a longer period than five years, under
penalty of escheat.

SEC. 195. The Commonwealth, in the exercise of the right of eminent
domain, shall have and retain the same powers to take the property and
franchises of incorporated companies for public use which it has and
retains to take the property of individuals, and the exercise of the
police powers of this Commonwealth shall never be abridged, nor so
construed as to permit corporations to conduct their business in such
manner as to infringe upon the equal rights of individuals.

SEC. 205. The General Assembly shall, by general laws, provide for the
revocation or forfeiture of the charters of all corporations guilty of
abuse or misuse of their corporate powers, privileges or franchises,
or whenever said corporations become detrimental to the interest and
welfare of the Commonwealth or its citizens.

See http://www.lrc.state.ky.us/legresou/constitu/intro.htm

#8 Class--Libel: 3-5-12

3-5-12

Lecture # 8: Law & Social Policy: Libel & The First Amendment—Law & Policy or Policy and Law?

1. Reading (words) (Josh Porter)
Despotism of the Future
(Begin at page 805) Thus I think the type of oppression threatening democracy will not be like anything that has been in the world before…….. (Conclude at page 806)…I have always believed that this type of organized, gentle and peaceful enslavement just described could link up more easily than imagined with some of the external forms of freedom and that it would not be impossible for it to take hold in the very shadow of the sovereignty of the people.”

(Cassle Kennedy): "The trial of [John Peter] Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America." Quote from Gouvernor Morris as members of the First Congress debated the proposed Bill of Rights. Morris was the great-grandson of Lewis Morris, one of the Constitution's principal drafters.

2. Summary of Class #7: Race Discrimination (in 450 Words or Less) 450 words--- 4 minutes

In the first class we examined the Power of the People; the second, the Power of the Judiciary; the third the Power of the Legislature; the fourth the Power of the Executive Branch in the fifth we reviewed social, political and governance themes and issues treated by Tocqueville in his classic work, Democracy in America. The sixth class concerned the Death Penalty and the seventh class considered Race. Here’s what we’ve learned about racial segregation in public education:

Law & Social Science (3 minutes, 362 words)

In deciding that school desegregation was contrary to the equal protection clause of the 14th amendment to the U. S. Constitution, the court used social science to establish the predicate that separate education is inherently unequal. While the result was most salutary, the method has been criticized—basing law on social science is a slippery slope pockmarked with potholes and landscaped with bramble bushes. The social science might be flawed or it might produce a result contrary to the interests on the country. Moreover, by basing the decision on social science rather than more enduring civic, social or justice based principles, the scope of the decision was limited to segregation is schools not segregation generally. Presumably, segregation in other areas of civic, social life could remain segregated if the social science supported it.

The power of the judiciary to declare laws unconstitutional is a special characteristic of the American judiciary. Tocqueville noted its uniqueness among governments and judicial systems. With Hamilton and Madison they believed the power to declare a law unconstitutional was an essential component of an independent judiciary that would ensure that the civic and political objectives of equality, freedom and liberty could coexist in the republic.

As a legal proposition, it may be said that the constitution is the ultimate source of law in America. As a political proposition, it may be said, as Tocqueville has in fact said it, that social conditions are the ultimate sources of law in America.
In the last two classes we posed some provocative questions: (1) can the constitution ever be UNCONSTITUTIONAL by authorizing or condoning conduct repugnant to either other sections of the constitution or evolving social or legal standards? (2) Does the constitution ever contradict itself? For example, by requiring a guided discretion approach to death penalty administration? If so, what is the judiciary to do with conflicting or inconsistent or outright unacceptable constitutional provisions when exercising its power of judicial review? Our classes treating the death penalty and school segregation furnished two examples.

We examine a third in this class on the First Amendment and libel that brings new substance and nuance to our study of law and social policy. 448 words.


3. Lecture #8: Libel—Law & Social Policy or Social Policy & Law? DV: 1003 words. 10 minutes
In this course on the interplay between law and social policy, we are interested in changes in the meaning or application of the law that we cannot explain by simple changes in a text of a statue or a vote of the people or an amendment to an executive order. In the current sequences of lectures treating the topics of capital punishment, school segregation, libel and corporate political activity the phenomena is demonstrable and discernible as the Supreme Court applies is unique power of judicial review guided not by the laws adopted by congress but by the constitution’s requirements, express and implied, according to either the original meaning or an evolved and elaborated application.
A social policy may be reflected in the constitutional analysis of a case or it might even drive the analysis. In the death penalty cases, for example, we have learned that an action specifically authorized by the constitution, the taking of life, may be prohibited if it is not carried out in a way that is fair or consistent with evolving standards of decency that mark the progress of society. In the school segregation cases, we learned that social science informs and animates the meaning of equal protection of the law.
Our focus in this Class # 8 is libel and the First Amendment. Tocqueville thought the two most important powers in the United States were the power of the judiciary and the power of the press. In this class we shall see them both on display.
The purpose of the First Amendment is twofold: to prohibit the state (here the emphasis on ‘state’) from (1) licensing publications (as had been the practice in England) and 2) conducting prosecutions for seditious libel.
The adoption of the Alien and Sedition Acts by Congress in 1798 prohibiting publication of ‘…false, scandalous and malicious writings…’ against the government is a perfect example of a seditious libel statute. The laws were adopted by a congress that included as members many of the people who drafted and ratified the constitution. The Alien and Sedition Acts were repealed before the Supreme Court ruled on their constitutionality.
Other than these two purposes, we know nothing about intent behind the adoption of the First Amendment or the meaning of the words ‘freedom of speech.’ Consequently, there is no original meaning or original intent for courts to discern and apply in First Amendment cases. There are, however, four general theories that may be used to explain the cases although no single one explains everything. The four theories about the purpose of the First Amendment are to promote or facilitate: 1) self-governance; 2) truth (J.S. Mill); 3) autonomy of persons and 4) tolerance.
I would like for you to hear the words of one prominent jurist on the purpose of the First Amendment:
(Chris Robert, please come forward). From Mr. Justice Brandeis’ concurring opinion in Whitney v. California 274 U.S. 357, 375 (1927) found in the Cherminsky text at page 954: (2 minutes).
“Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government…. that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” 168 words
The Brandeis quote blends all four theories I listed.
Some conservative thinkers, Judge Bork, for example, believe that the First Amendment is aimed at government and political speech, not individuals and personal//private type speech. And while that view has not prevailed, it lurks in and behind First Amendment discussion and was a factor to be dealt with in New York Times v. Sullivan, the landmark libel case we will consider later in this lecture. Listen to what our textbook writer, Erwin Chemerinsky says about the case:
New York Times is one of the most important First Amendment decisions in history because of its application of the Constitution as a limit on tort liability and because of its strong protection for political speech. P. 1080.
In the last two classes we watched the Supreme Court use its power of judicial review to declare administration of the death penalty cruel and unusual punishment because it was arbitrarily applied and contrary to an evolving standard of decency (because it was arbitrarily applied). Both the death penalty and public education involve the relationship between the citizenry and the state.
After the death penalty class, we studied the Supreme Court’s action in declaring unconstitutional the segregation of public education because---notwithstanding the clear authorization of segregation in the constitution—social science established that separate education was inherently unequal and therefore in violation of the equal protection clause of the 14th Amendment.
In today’s class, the eighth, we encounter new level of complexity. Unlike the death penalty and public education, which involve the state and its relationship to the citizenry, the libel laws concern the rights and responsibilities of private parties---not state action. How does, how can the constitution impact the rights and remedies of private parties?
That question will be the central focus of this our eighth class where we consider libel and the First Amendment to the Constitution. As we do, we will revisit issues about the power of the people as well as the power of the judiciary.
4. Student Assignments Class #8: Libel
3-5-12

In order to enjoy the priceless advantages guaranteed by press freedom, one must submit to the unavoidable evils it produces. --Tocqueville 213
The power of the periodical press is second only to that of the people. --Chapter XI 217
The press is by far the most effective democratic instrument of freedom. –Tocqueville 812.
_____________________
1. STEPHANIE CARR; Tocqueville p 315—319. The Jury in the United States Seen as a Political Institution “Thus the man who judges in a criminal trail is the real master of society. “ (P. 318). “I am so convinced that the jury is primarily a political institution that I still see it as such when it is used in civil cases.” (P. 319).
2. CASSLE KENNEDY: The John Peter Zenger Trial. Jury Nullification.
3. NATALIE HUMPHREY: Tocqueville “The Freedom of Press in the United States” Vol. 2. Chapter 3 pp. 209-219 especially 213 and 217.
Please read from page 222: “The more I observe the main effects of the independence of the press, the more I am convinced that this independence, in the modern world, is the principal and, as it were, the governing element of freedom.” A nation, therefore, which intends to remain free is entitled to demand respect for this freedom at whatever cost.”
4. DARRICK CRUMBLY: The Federalist Papers No. 84 (Hamilton) (arguing against a bill of rights) on liberty of the press (513).
5. CHRIS MONCRIEF: Chemerinsky “First Amendment Limits on Tort Liability” pp. 1078-1088, 1090-1091; Section 6.3.1 “Rejection of Application Before Civil War” pp. 503-509.
6. SARA THOMPSON: New York Times v. Sullivan 376 U. S. 254 (1964).
7. ZAC RICHARDS: Curtis v. Butts 388 U. S. 130 (1967).
8. BRAD CORBIN: Getz v. Welch 418 U. S. 323 (1974).
9. BRANDI MELVIN: Hustler Magazine v. Falwell 485 U. S. 46 (1988).
10. NATHAN B: Dun & Bradstreet v. Greenmoss Buildings, Inc. 472 U. S. 749 (1985).
11. MOLLY: Tocqueville: Page 812: begin on page 811: “In aristocratic times, each man was always tied very closely to several of his fellow citizens in such a way that he cannot be attacked without the others coming to his aid. In ages of equality, each individual is naturally isolated with no hereditary friends whose help he can demand….he is thrust easily aside and trampled underfoot without redress. At the present time, a citizen who is oppressed has only one means of defense, which is to appeal to the whole nation and then to the human race, if the former is deaf to his complaints. The only means of achieving this is through the press… CONSUQUENTLY, THE FREEDOM OF THE PRESS IS INFINITLEY MORE VALUABLE IN DEMOCRTIC NATIONS THN IN ALL OTHERS; IT ALONE CAN CURE MOST OF THE ILLS WHICH EQUALITY MAY PRODUCE…THE PRESSIS BY FAR THE MOST EFFECTIVE DEMOCRATIC INSTRUMENT OF FREEDOM.” P. 812.

From Cicero we learn there were few capital punishments in the twelve tables but libel was one. –Addison, The Spectator No. 451.
… there is no freedom of thought in America. –Tocqueville 299.
End
http://www.letsgetfreethebook.com/jurorsforjustice/powertothepeople-isnullificationlegal.html>
Is Jury Nullification Legal?
Is Jury Nullification Legal?
Absolutely. Not only is jury nullification legal, it is a basic part of our justice system that is upheld by basic principles of the Constitution.

A Brief History Of Jury Nullification
The idea that jurors should judge the law, as well as the facts, is a proud part of American history. The concept that jurors decide justice became an important part of American jurisprudence.

John Peter Zenger
The case of John Peter Zenger is one of the first recorded cases of jury nullification.

In 1735, John Peter Zenger, an American, was arrested and prosecuted for violating British law by publishing a pamphlet critical of the King. During trial, his attorney challenged the legality of the crimes for which his client was being prosecuted. It was one of the first times in American history in which a lawyer challenged the laws rather than the innocence of his clients. The jurors were stunned and didn't know how to, or even if they were allowed to, address whether the law itself was "legal."
At the end of the trial on August 5, 1735, the twelve New York jurors returned a verdict of "not guilty" on the charge of publishing "seditious libels," despite the Governor's hand-picked judges presiding. Zenger's attorney had successfully argued that Zenger's articles were not libelous because they were based on fact.
Zenger's victory is the first recorded in history that was certainly due to jury nullification. The case is still cited as a victory of justice through jury nullification.

The Trial of John Peter Zenger: An Account
http://law2.umkc.edu/faculty/projects/ftrials/zenger/zengeraccount.html>
By Doug Linder (2001)

No country values free expression more highly than does the United States, and no case in American history stands as a greater landmark on the road to protection for freedom of the press than the trial of a German immigrant printer named John Peter Zenger. On August 5, 1735, twelve New York jurors, inspired by the eloquence of the best lawyer of the period, Andrew Hamilton, ignored the instructions of the Governor's hand-picked judges and returned a verdict of "Not Guilty" on the charge of publishing "seditious libels." The Zenger trial is a remarkable story of a divided Colony, the beginnings of a free press, and the stubborn independence of American jurors.
Background
The man generally perceived to be the villain of the Zenger affair, William Cosby, arrived in New York on August 7, 1731 to assume his post as Governor for New York Province. Cosby quickly developed a reputation as "a rogue governor." It is almost impossible to find a positive adjective among the many used by historians to describe the new governor: "spiteful," "greedy," "jealous," "quick-tempered," "dull," "unlettered," and "haughty" are a sample of those that have been applied.
Within a year after arriving on American shores, Cosby embroiled himself in a controversy that would lead to Zenger's trial and ultimate acquittal. The man with whom Cosby chose to pick his first fight, Rip Van Dam, was the seventy-one-year-old highly respected senior member of the New York provincial council. Cosby demanded that Van Dam turn over half of the salary he had earned while serving as acting governor of New York during the year between Cosby's appointment and his arrival in the colony. The hard-headed Van Dam agreed--providing that Cosby would split with him half of the perquisites he earned during the same time period. By Van Dam's calculations, Cosby would actually owe him money--over £4000.
Governor Cosby responded in August 1732 by filing suit for his share of Van Dam's salary. Knowing that he had no chance of prevailing in his case if the decision were left to a jury, Cosby designated the provincial Supreme Court to sit as a "Court of Exchequer" (without a jury) to hear his suit. Van Dam refused to roll over, and had his lawyers challenge the legality of Cosby's attempt to do an end-run of the colony's established jury system. The decision on the legality of Cosby's creation of the new court fell to the three members of the Supreme Court itself, and in April 1733 it voted 2 to 1 to uphold Cosby's action. Cosby wrote a letter to the dissenting judge, Chief Justice Lewis Morris, demanding that he explain his vote. Morris did so, but to Cosby's great displeasure, his explanation appeared not in a private letter to the Governor, but in a pamphlet printed by John Peter Zenger. Cosby "went ballistic," removing Morris as Chief Justice and replacing him with a staunch royalist, James Delancey.
Cosby's action of firing Morris intensified the growing opposition to his administration among some of the most powerful people in the colony. Rip Van Dam, Lewis Morris, and an energetic attorney named James Alexander organized what came to be known as the Popular Party, a political organization that would constitute a serious challenge to Cosby's ability to govern.
Cosby attempted to maintain his grip on power by employing Francis Harison--a man called by historians Cosby's "flatterer-in-chief" and "hatchetman"--to become censor and effective editor of the only established New York newspaper, the New York Gazette. Harison defended Cosby both in prose and strained verse, such as this poem that appeared the Gazette's January 7, 1734 issue:
Cosby the mild, the happy, good and great,
The strongest guard of our little state;
Let malcontents in crabbed language write,
And the D...h H....s belch, tho' they cannot bite.
He unconcerned will let the wretches roar,
And govern just, as others did before.

James Alexander, often described as the "mastermind" of the opposition, decided to take the unprecedented step of founding an independent political newspaper. Alexander approached John Peter Zenger who, along with William Bradford, the Gazette's printer, was one of only two printers in the colony, with the idea of publishing a weekly newspaper to be called the New York Weekly Journal. Zenger, who had made a modest living the past six years printing mainly religious tracts, agreed. In a letter to an old friend, Alexander revealed the Journal's mission: "Inclosed is also the first of a newspaper designed to be continued weekly, chiefly to expose him [Cosby] and those ridiculous flatteries with which Mr. Harison loads our other newspaper which our Governor claims and has the privilege of suffering nothing to be in but what he and Mr. Harison approve of."

On November 5, 1733, Zenger published the first issue of the Weekly Journal. The issue included a detailed account of the victory the previous week of Lewis Morris as Popular Party candidate for assemblyman from Westchester. Morris won the election despite the best efforts of Cosby to rig the election against him by having the sheriff disqualify Quaker voters (expected to be heavily pro-Morris) on the ground that the Quakers only "affirmed" rather than swore the oath required at the time of all voters. The election story, almost certainly written by Alexander, included this description of the sheriff's intervention:
[T]he sheriff was deaf to all that could be alleged on that [the Quaker] side; and notwithstanding that he was told by both the late Chief Justice and James Alexander, one of His Majesty's Council and counsellor-at-law, and by one William Smith, counsellor-at-law, that such a procedure [disqualifying the Quakers for affirming rather than swearing] was contrary to law and a violent attempt upon the liberties of the people, he still persisted in refusing the said Quakers to vote....
No doubt to the surprise and disappointment of Cosby, Morris won the election even without the Quakers' votes. The Journal story told of Morris's election being celebrated with "a general fire of guns" from a merchant vessel and "loud acclamations of the people as he walked the streets, conducted to the Black Horse Tavern, where a handsome entertainment was prepared for him."
Subsequent issues of the Journal, in addition to editorializing about other dubious actions of the Governor, contained ringing defenses of the right to publish, authored by Alexander, such as this offered in the second issue:
The loss of liberty in general would soon follow the suppression of the liberty of the press; for it is an essential branch of liberty, so perhaps it is the best preservative of the whole. Even a restraint of the press would have a fatal influence. No nation ancient or modern has ever lost the liberty of freely speaking, writing or publishing their sentiments, but forthwith lost their liberty in general and became slaves.
Cosby put up with the Journal's attacks for two months before deciding that it must be shut down. The first effort to silence the Journal occurred in January 1734 when Chief Justice Delancey asked a Grand Jury to return indictments based on the law of seditious libel. The Grand Jury, however, refused. Delancey tried again when the next Grand Jury met in October. He presented the grand jurors with broadsides and "scandalous" verse from Zenger's Journal, but the jurors, claiming that the authorship of the allegedly libelous material could not be determined, again refused to return indictment.

Cosby responded to these frustrations by proclaiming a reward of fifty pounds for the discovery of the authors of the libels and by issuing an order that Zenger's newspapers be publicly burned by "the common hangman."
Then, in an effort to get around the Grand Jury's refusal to indict, Cosby ordered his attorney general, Richard Bradley, to file "an information" before Justices Delancey and Philipse. Based on the information, the Justices issued a bench warrant for the arrest of John Peter Zenger. On November 17, 1734, the sheriff arrested Zenger and took him to New York's Old City Jail, where Zenger would stay for the next eight months.
The Weekly Journal was not published the next day, November 18. It would be the only issue missed in its publishing history. The next week, with the help of Zenger's wife, Anna, the Journal resumed publication with an issue that included this "apology":
As you last week were disappointed of my Journal, I think it incumbent on me to publish my apology, which is this. On the Lord's Day, the seventeenth, I was arrested, taken and imprisoned in the common jail of this City by virtue of a warrant from the Governor, the honorable Francis Harison, and others in the Council (of which, God willing, you will have a copy); whereupon I was put under such restraint that I had not the liberty of pen, ink or paper, or to see or speak with people, until my complaint to the honorable Chief Justice at my appearing before him upon my habeas corpus on the Wednesday following. He discountenanced that proceeding, and therefore I have had since that time the liberty of speaking thro' the hole of the door to my wife and servants. By which I doubt not you will think me sufficiently excused for not sending my last week's Journal, and hope for the future, by the liberty of speaking to my servants thro' the hole of the door of my prison, to entertain you with my weekly Journal as formerly.
The enormous bail of £800 set for Zenger turned into an important tactical advantage for the imprisoned printer. As a result of his stream of "letters" from prison, an outpouring of public sympathy for his cause developed.
The Trial
Zenger's defense would fall to sixty-year-old Andrew Hamilton of Philadelphia, perhaps the ablest and most eloquent attorney in the colonies--though that was not the initial plan. James Alexander and William Smith initially undertook Zenger's defense, but both were disbarred in April 1735 by Chief Justice Delancey when they audaciously objected to the two-man court (consisting of Justice Delancey and Philipse) Cosby had hand-picked to try Zenger's case.
Jury selection began on July 29, 1735, and once again Cosby attempted to influence events by having his henchman, Francis Harison, produce a roll of potential jurors that included forty-eight nonfreeholders, men presumed to be sympathetic to the Governor, including former magistrates and persons in Cosby's employ. This departure from normal procedures was too much even for Cosby's handpicked judges who, sitting behind an ornate bench in their scarlet robes and huge white wigs, rejected the ruse. Twelve jurors were quickly selected.
The trial opened on August 4 on the main floor of New York's City Hall with Attorney General Bradley's reading of the information filed against Zenger. Bradley told jurors that Zenger, "being a seditious person and a frequent printer and publisher of false news and seditious libels" had "wickedly and maliciously" devised to "traduce, scandalize, and vilify" Governor Cosby and his ministers. Bradley said that "Libeling has always been discouraged as a thing that tends to create differences among men, ill blood among the people, and oftentimes great bloodshed between the party libeling and the party libeled."
After a brief statement from John Chambers, Zenger's court-appointed attorney, Andrew Hamilton rose to announce that his client--sitting in an enclosed box in the courtroom--would not contest having printed and published the allegedly libelous materials contained in the Weekly Journal and that "therefore I shall save Mr. Attorney the trouble of examining his witnesses to that point."
Following Hamilton's surprise announcement, the prosecution's three witnesses (Zenger's journeyman associate and two of his sons) were sent home, and there was a long silence. Finally, Bradley spoke: "As Mr. Hamilton has confessed the printing and publishing of these libels, I think the Jury must find a verdict for the king. For supposing they were true, the law says that are not the less libelous for that. Nay, indeed the law says their being true is an aggravation of the crime." Bradley proceeded to offer a detailed and generally accurate account of the state of law on seditious libel of the time, supporting his conclusion that the truth of a libel is no defense.
Andrew Hamilton rose to argue that the law ought not to be interpreted to prohibit "the just complaints of a number of men who suffer under a bad administration." He suggested that the Zenger case was of transcendent importance:
From what Mr. Attorney has just now said, to wit, that this prosecution was directed by the Governor and the Council, and from the extraordinary appearance of people of all conditions, which I observe in Court upon this occasion, I have reason to think that those in the administration have by this prosecution something more in view, and that the people believe they have a good deal more at stake, than I apprehended. Therefore, as it is become my duty
to be both plain and particular in this cause, I beg leave to bespeak the patience of the Court.
Hamilton argued that the libel law of England ought not to be the libel law of New York:
In England so great a regard and reverence is had to the judges that if any man strikes another in Westminster Hall while the judges are sitting, he shall lose his right hand and forfeit his land and goods for so doing. Although the judges here claim all the powers and authorities within this government that a Court of King's Bench has in England, yet I believe Mr. Attorney will scarcely say that such a punishment could be legally inflicted on a man for committing such an offense in the presence of the judges sitting in any court within the Province of New York. The reason is obvious. A quarrel or riot in New York can not possibly be attended with those dangerous consequences that it might in Westminster Hall; nor, I hope, will it be alleged that any misbehavior to a governor in The Plantations will, or ought to be, judged of or punished as a like undutifulness would be to our sovereign. From all of which, I hope Mr. Attorney will not think it proper to apply his law cases, to support the cause of his governor, which have only been judged where the king's safety or honor was concerned....Numberless are the instances of this kind that might be given to show that what is good law at one time and in one place is not so at another time and in another place.
His arguments might have been well-received by jurors, but Hamilton had almost no law to support his position that the truth should be a defense to the charge of libel. Not surprisingly, Chief Justice Delancey ruled that Hamilton could not present evidence of the truth of the statements contained in Zenger's Journal. "The law is clear that you cannot justify a libel," Delancey announced. "The jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous."
In response to Delancey's ruling, Hamilton revealed the true nature of the defense strategy--jury nullification:
I know, may it please Your Honor, the jury may do so. But I do likewise know that they may do otherwise. I know that they have the right beyond all dispute to determine both the law and the fact; and where they do not doubt of the law, they ought to do so. Leaving it to judgment of the court whether the words are libelous or not in effect renders juries useless (to say no worse) in many cases. But this I shall have occasion to speak to by and by.
Hamilton's lengthy summation to the jury still stands as an eloquent defense not just of a German-born printer, but of a free press:
It is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt. They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow....
The loss of liberty, to a generous mind, is worse than death. And yet we know that there have been those in all ages who for the sake of preferment, or some imaginary honor, have freely lent a helping hand to oppress, nay to destroy, their country.... This is what every man who values freedom ought to consider. He should act by judgment and not by affection or self-interest; for where those prevail, no ties of either country or kindred are regarded; as upon the other hand, the man who loves his country prefers its liberty to all other considerations, well knowing that without liberty life is a misery....
Power may justly be compared to a great river. While kept within its due bounds it is both beautiful and useful. But when it overflows its banks, it is then too impetuous to be stemmed; it bears down all before it, and brings destruction and desolation wherever it comes. If, then, this is the nature of power, let us at least do our duty, and like wise men who value freedom use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust and boundless ambition the blood of the best men that ever lived....
I hope to be pardoned, Sir, for my zeal upon this occasion....While we pay all due obedience to men in authority we ought at the same time to be upon our guard against power wherever we apprehend that it may affect ourselves or our fellow subjects....
You see that I labor under the weight of many years, and am bowed down with great infirmities of body. Yet, old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land where my services could be of any use in assisting to quench the flame of prosecutions upon informations, set on foot by the government to deprive a people of the right of remonstrating and complaining, too, of the arbitrary attempts of men in power....
But to conclude: The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.
Chief Justice Delancey seemed unsure how to react to Hamilton's eloquence. He instructed the jury that its duty under the law was clear. There were no facts for it to decide, and it was not to judge the law. Delancey all but ordered the jury to return a verdict of "Guilty":
The great pains Mr. Hamilton has taken to show how little regard juries are to pay to the opinion of judges, and his insisting so much upon the conduct of some judges in trials of this kind, is done no doubt with a design that you should take but very little notice of what I might say upon this occasion. I shall therefore only observe to you that as the facts or words in the information are confessed, the only thing that can come in question before you is whether the words as set forth in the information make a libel. And that is a matter of law, no doubt, and which you may leave to the Court.
The jury withdrew to deliberate. A short time later, it returned. The clerk of the court asked the jury foreman, Thomas Hunt, to state the verdict of the jury. "Not guilty," Hunt answered. There followed "three huzzas" and "shouts of joy" from the crowd of spectators in the courtroom. Chief Justice Delancey demanded order, even threatening spectators with arrest and imprisonment, but the celebration continued unabated. Defeated, Delancey "left the courtroom to the jubilant crowd."
Trial Aftermath
Anti-administration supporters hosted a congratulatory dinner for Andrew Hamilton at the Black Horse Tavern. The next day, on the start of his return trip to Philadelphia, a "grand salute of cannon was fired in his honor."
The Zenger trial established no new law with respect to seditious libel, but in unmistakable terms it signaled the public's opposition to such prosecutions. Concern about likely jury nullification discouraged prosecutions, and press freedom in America began to blossom. A half-century after the Zenger trial, as members of the First Congress debated the proposed Bill of Rights, one of the Constitution's principal drafters and great-grandson of Lewis Morris, Gouvernor Morris, would write of the Zenger case: "The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America."




New York Times Co. v. Sullivan
From Wikipedia, the free encyclopedia

The New York Times Co. v. Sullivan


Supreme Court of the United States

Argued January 6, 1964
Decided March 9, 1964
Full case name The New York Times Company v. L. B. Sullivan
Citations 376 U.S. 254 (more)
84 S. Ct. 710; 11 L. Ed. 2d 686; 1964 U.S. LEXIS 1655; 95 A.L.R.2d 1412; 1 Media L. Rep. 1527
Prior history Judgment for plaintiff, Circuit Court, Montgomery County, Alabama; motion for new trial denied, Circuit Court, Montgomery County; affirmed, 144 So. 2d 25 (Ala. 1962); certiorari granted, 371 U.S. 946 (1963)
Holding
The First Amendment, as applied through the Fourteenth, protected a newspaper from being sued for libel in state court for making false defamatory statements about the official conduct of a public official, because the statements were not made with knowing or reckless disregard for the truth. Supreme Court of Alabama reversed and remanded.
Court membership
Case opinions
Majority Brennan, joined by Warren, Clark, Harlan, Stewart, White
Concurrence Black, joined by Douglas
Concurrence Goldberg, joined by Douglas
Laws applied
U.S. Const. amends. I, XIV

Wikisource has original text related to this article:
New York Times v. Sullivan
New York Times Co. v. Sullivan, 376 U.S. 254 (1964),[1] was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel[2]; and hence allowed free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press. The actual malice standard requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty in proving essentially what is inside a person's head, such cases—when they involve public figures—rarely prevail.
Before this decision there were nearly US$300 million in libel actions outstanding against news organizations from the Southern states and these had caused many publications to exercise great caution when reporting on civil rights, for fear that they might be held accountable for libel. After The New York Times prevailed in this case, news organizations were free to report the widespread disorder and civil rights infringements. The Times maintained that the case against it was brought to intimidate news organizations and prevent them from reporting illegal actions of public employees in the South as they attempted to continue to support segregation.
Contents [hide]
1 Background of the case
2 The court's decision
2.1 Actual malice
3 International comparisons
4 Later developments
5 See also
6 Notes
7 Further reading
8 External links
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Background of the case
On March 29, 1960, the New York Times carried a full-page advertisement titled "Heed Their Rising Voices",[3] which solicited funds to defend Martin Luther King, Jr. against an Alabama perjury indictment. The advertisement described actions against civil rights protesters, some of them inaccurately, some of which involved the police force of Montgomery, Alabama. Referring to the Alabama State Police, the advertisement stated that "They have arrested [King] seven times..."[4] However, at that point he had only been arrested four times. Although the Montgomery Public Safety commissioner, L. B. Sullivan, was not named in the advertisement, the inaccurate criticism of the actions by the police was considered as defamation against him as well by virtue of his position and duty to supervise the police department.
Alabama law denied a public officer recovery of punitive damages in a libel action brought on account of a publication concerning their official conduct unless they first make a written demand for a public retraction and the defendant fails or refuses to comply, so Sullivan sent such a request.[1] The Times did not publish a retraction in response to the demand. Instead it wrote a letter[citation needed] stating, among other things, that "we ... are somewhat puzzled as to how you think the statements in any way reflect on you," and "you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you".[1] Sullivan did not respond but instead filed this "libel" suit a few days later. He also sued four black ministers mentioned in the ad, specifically Ralph Abernathy, S.S. Seay, Sr., Fred Shuttlesworth, and Joseph Lowery. Sullivan won $500,000 in an Alabama court judgment.[citation needed]
The Times did, however, subsequently publish a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who asserted that the publication charged him with "grave misconduct and ... improper actions and omissions as Governor of Alabama and ex-officio chairman of the State Board of Education of Alabama."[1] When asked to explain why there had been a retraction for the Governor but not for Sullivan, the Secretary of the Times testified: "We did that because we didn't want anything that was published by the Times to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the state and, furthermore, we had by that time learned more of the actual facts which the ad purported to recite and, finally, the ad did refer to the action of the state authorities and the Board of Education presumably of which the Governor is the ex-officio chairman...." On the other hand, he testified that he did not think that "any of the language in there referred to Mr. Sullivan."[1]
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The court's decision
The Court ruled for the Times, 9-0[5]. The rule of law applied by the Alabama courts was found constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct. The decision further held that under the proper safeguards the evidence presented in this case is constitutionally insufficient to support the judgment for Sullivan.
[edit]
Actual malice
The Court held that a public official suing for defamation must prove that the statement in question was made with actual malice, which in this context refers to knowledge or reckless lack of investigation, rather than the ordinary meaning of malicious intent. In his concurring opinion, Justice Black explained that "'[m]alice,' 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."
The term "malice" was not newly invented for the case, but came from existing libel law. In many jurisdictions, including Alabama (where the case arose), proof of "actual malice" (actual knowledge of falsity, or reckless disregard for the truth) was required in order for punitive damages to be awarded, or for other increased penalties. Since proof of the writer's malicious intentions is hard to provide, proof that the writer knowingly published a falsehood was generally accepted as proof of malice, under the assumption that only a malicious person would knowingly publish a falsehood. In Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95 (1930), similarly, the court said: "The plaintiff alleges that this criticism of him and of his work was not fair and was not honest; it was published with actual malice, ill will and spite. If he establishes this allegation, he has made out a cause of action. No comment or criticism, otherwise libelous, is fair or just comment on a matter of public interest if it be made through actual ill will and malice." (p. 106)
In New York Times Co. v. Sullivan, the Supreme Court adopted the term "actual malice" and gave it constitutional significance, at the same time defining it in terms of the proof which had previously been usual.
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International comparisons
The rule that somebody alleging defamation should have to prove untruth, rather than that the defendant should have to prove the truth of a statement stood as a departure from the previous common law. In England, the development was specifically rejected in Derbyshire County Council v. Times Newspapers Ltd[6] and it was also rejected in Canada in Hill v. Church of Scientology of Toronto[7] and more recently in Grant v. Torstar Corp.[8] However in Australia, the outcome of the case was followed in Theophanous v. The Herald & Weekly Times Ltd.[9]
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Later developments
▪ Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) held that public figures who are not public officials may still sue news organizations if they disseminate information about them which is recklessly gathered and unchecked.
▪ Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974): Actual malice not necessary for defamation of private person if negligence is present
▪ Hustler Magazine v. Falwell, 485 U.S. 46 (1988): Extending standard to intentional infliction of emotional distress
▪ Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990): Existing law is sufficient to protect free speech without recognizing opinion privilege against libel claims.
▪ Westmoreland v. CBS (1982): Reaffirmed New York Times Co. v. Sullivan
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