DeSantis Is (Almost) Right About Libel Law

The New York Times dodged a bullet a while back in the Sarah Palin libel matter, and its publishers and editors know it, which is why a recent story is headlined, “DeSantis, Aiming at a Favorite Foil, Wants to Roll Back Press Freedom” a claim that—ironically, in this context—isn’t quite right. Presumably, “freedom of the press” does not include the freedom to publish untrue and defamatory things about people, and DeSantis is taking up the cause of a small group of activists, including a few conservative legal scholars, who want to make it easier for people who have been misrepresented by the press to win libel judgments against newspapers and other media properties. 

This hits close to home for the Times: The landmark Supreme Court case in the matter of libel is called New York Times Co. v. Sullivan, and the most recent big-time libel suit was Sarah Palin v. New York Times Co. Palin lost—wrongly, in my view—but is appealing. 

The Times’ misrepresentation of Palin should have been, liberated from the weight of political tribalism, an open-and-shut case. For this kind of claim in print to rise to the level of libel, it must meet three conditions: The claim must be false, the claim must be defamatory (meaning that it injures the reputation of the party in question), and, in the case of a public figure, it must have been made with “actual malice” or “reckless disregard for the truth.” The Times libeled Palin by falsely claiming in an editorial that Palin’s campaign rhetoric had led to the shooting of Rep. Gabby Giffords. “The link to political incitement was clear,” according to the Times, a claim that is—and this matters in this context!—not true. There was no connection at all between the Palin campaign and the Giffords shooting, a fact that has been reported in and confirmed by, among other reputable journalistic sources, the New York Times itself. Even if we accepted at face value the extraordinarily tendentious claim that Palin’s utterly normal campaign rhetoric constituted some sort of incitement to violence, the man who shot Giffords was not inspired by it and seems never to have even seen it before committing his crime. 

The editorial in question was not about the Giffords shooting or about Palin: The swipe at Palin was inserted—with positively reckless disregard for the truth—solely for the purpose of taking a swipe at Palin, i.e., with the intent to damage her reputation and harm her political prospects. This was, very straightforwardly, libel. The the jury saw it otherwise is a reminder of the limitations of juries. 

There isn’t anything inherently wrong with the “actual malice”/ “reckless disregard” standard, but it has been interpreted so narrowly—with so much solicitousness toward institutions such as the New York Times and so much callousness toward unsympathetic figures such as Palin—that nothing short of a signed and notarized statement of intent to commit libel seems to satisfy judges or juries. The political biases of the Times are not in and of themselves libelous, but they surely attest to a pattern of disregard for the truth that in the Palin matter grew to be reckless, indeed, and malicious in any meaningful sense of the word. 

The prolix New York state legal standard for “defamation” includes that which exposes someone to “public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace,” or that which brings about an “evil opinion of one in the minds of right-thinking persons.” Who can doubt that this was precisely the Times’ aim vis-à-vis Palin? It was, in fact, the only point of the exercise. 

DeSantis and others would like to see Times v. Sullivan overturned, and some legal thinkers have made a plausible case for doing so. At least two justices of the Supreme Court have signaled a willingness to reconsider the case. 

Floyd Abrams, the famous First Amendment lawyer who defended the Times in the Pentagon Papers case, tells his sometime client: “What they’re saying is that they want to crack down on American journalism.” I do not doubt that DeSantis and other Republicans generally hate the press (and the press has done its share to earn that hate), but that is an unfair overstatement. The first and most important criterion when it comes to libel is truth: Truth, in the familiar legal language, is an “absolute defense” against a libel claim—no falsehood, no libel. Donald Trump would like to punish CNN for comparing him to Adolf Hitler, but there is no libel in CNN’s comparison because there is no falsifiable claim of fact: If CNN had said, “Donald Trump is exterminating Jews in camps, just like Hitler,” then there would have been a real libel claim, but “We think Donald Trump is a lowlife and a thug who reminds us a lot of Adolf Hitler” is no such factual claim. So what’s in question here is not the ability of news organizations to do good journalism—what is in question here is what happens to them when they make a claim of fact that 1) is not true and 2) damages someone’s reputation. What is in question is not good journalism, but the consequences for making a false claim that damages someone’s reputation. For people who are not “public figures”—a term vaguely defined in the law—only two criteria need to be satisfied: that the claim is false and defamatory—no need for “actual malice” or “reckless disregard.” But newspapers do not often undertake vendettas against private persons, and there is a very good argument that the “actual malice” standard, or at least its current interpretation, gives newspapers such as the Times too much license to conduct precisely such vendettas against figures such as Palin. 

Ron DeSantis has good reasons for taking note of that. 

Every reporter who is doing his job gets things wrong from time to time. Columnists, too. There’s isn’t any shame in an honest correction of an honest mistake. But honest mistakes can hurt, too. Every now and then, those mistakes will be the sort of thing that harms someone’s reputation: I know a reporter who was fired because he mixed up his notes and reported that the victim of a certain robbery was the suspect in that robbery and vice versa. I know of another case in which a campus newspaper assumed—wrongly, as it turned out—that a sex-crime suspect with an unusual name was the same person who worked in a women’s dormitory and had the same unusual name. (In the second case, the lawyer for the campus newspaper advised the relevant parties: “If he asks for anything less than $1 million, just write the check.”) If you’ve ever wondered why newspapers typically identify criminal suspects with three names and a place of residence—Oscar T. Grouch of the 100 block of Sesame Street—that is why. It is a way to avoid even innocent mistakes. 

But the Times case was not an innocent mistake of that kind: The Times was trying to damage Palin’s reputation and undermine her political ambitions—that was the whole point of the insertion that got the Times in trouble to begin with. And if that does not constitute actual malice or reckless disregard, then those words do not have any meaning. 

Losing the Palin case would have been good for the Times and good for American journalism—there’s nothing like having to write a seven- or eight-figure check to somebody you hate to encourage a newspaper to tighten up its editing standards. 

Or 10 figures. 

Do you know what the editorial writer in question, Elizabeth Williamson, does now? Her duties include covering high-profile defamation cases for the Times. “Alex Jones Files for Bankruptcy,” reads the headline over her gleeful account of the $1.5 billion judgment against the cynical conspiracy entrepreneur. Alex Jones’ financial situation has come into alignment with his moral situation, and the Times has Elizabeth Williamson to tell you all about it. That’s brass.

I don’t want to see the Times bankrupted. (Hello, David!) But it ought to have paid damages for its ugly and irresponsible smear of Sarah Palin. The fact that this did not come to pass is a big part of why figures such as Ron DeSantis want to see Times v. Sullivan revisited. The Times didn’t just hurt Palin: It undermined the very enterprise—journalism—about which it purports to offer such tender care. 

Expect this to be a continuing story. Maybe the Times will get Elizabeth Williamson to cover it. 

N.B., Elizabeth Williamson: no relation. 

And So It Begins

If you live in the hot part of the country, then you appreciate the sensation of walking into a store on a 93-degree day and feeling that first frigid, semi-Arctic blast of excessively conditioned air, a great pleasure that can be ruined by only one thing: Christmas music. Because I live in Texas, this gets complicated: The summers are getting longer and hotter, and the retail Christmas music starts earlier and earlier. September in Texas can be pretty weird, with Maharashtrian weather and, in some shops that really ought to be boycotted, the first choruses of “Rockin’ Around the Christmas Tree.” I don’t want to go into a whole Andy Rooney screed here, but we’re going to end up in a situation when the only time you don’t hear Christmas music in shops will be roughly between the weeks between the Feast of the Presentation and the Feast of the Annunciation, basically the end of February and the beginning of March. 

But I’d rather have bad Christmas music force-fed into my central nervous system Clockwork Orange-style than endure an expanded presidential-election season. But, like Christmas-shopping season, the presidential-election season is expanding: There’s too much money to be made to pass up the opportunity. Donald Trump announced his candidacy in November 2022, and Nicki Haley plans to make an announcement—her announcement has been announced, that’s how we do things, now—this week. It’s fixin’ to be happy hour at the Republicans’ version of Chalmun’s Spaceport Cantina, and drinks are on … well, here’s an interesting list, courtesy of the Washington Post. 

It wouldn’t bother me so much if I thought it was just about making money, one of the least-harmful of all human pursuits. But, tragically, this isn’t just a money-making scheme: These maniacs are sincere. 

Last week, I got off a plane in beautiful, sunny Charleston at 3 p.m. (Have you been to Charleston, lately? It’s really something.) By the time of my 6 p.m. engagement, I had been asked about the 2024 presidential election four times. Talk at dinner turned to presidents past and future. I might expect that if I were someone who spends a lot of time covering presidential campaigns and horse race politics, for the same reason that an orthopedist can expect to hear a lot of questions about his friends’ aching shoulders. (I’ll see you in a couple of weeks, Steve.) But that isn’t really what I do. I typically will spend some time covering a campaign every four years, maybe hit the Iowa State Fair during primary season, etc. But this isn’t about me and my work—the presidency is an American obsession, an increasingly central fascination of American public life. 

Republics don’t do well with deified leaders. 

The first Roman public figure about whom we have much in the way of real reliable historical information is Appius Claudius Caecus, who was elected censor (meaning the keeper of official property records; the morality-police sense of censor would come later) in 312 B.C. (Many of the Roman figures familiar from literature, including my man Gaius Marcius Coriolanus, may not be historical at all.) Caecus was an infrastructure man, credited with commissioning both the first major Roman road (the Via Appia) and the first aqueduct (the Aqua Appia). Caecus was, in that sense, a real servant of the people, a public-minded man in the most genuine sense. In only a few hundred years, his political heirs would be declaring themselves gods—but they would go nearly a century without building any new aqueducts. In fact, the number of years elapsed between Caecus’ election as censor and Julius Caesar’s official deification is the same as the number of years between George Washington’s famous service in the French and Indian War and Joe Biden’s most recent State of the Union speech. A lot can happen in a republic in a relatively short time. 

Whoever the next president is, I hope to hear less about him, and less from him. This is an unhealthy fixation. 

And Furthermore … 

All I think needs to be said in response to Patrick Deneen’s predictably imbecilic misrepresentation of my work in that recent Harper’s forum on liberalism is: You can still read the original for yourself. 

Economics for English Majors

There are no original ideas. Or not many, anyway. 

I heard a story about a schoolkid who apparently, on his own steam, discovered that there was a regular, predictable relationship between the hypotenuse of a right triangle and the two other sides. He was disappointed to learn that this discovery—the Pythagorean theorem—predated him by several thousand years. The history of the theorem is a matter of debate—it may have been discovered independently by different mathematicians going back to ancient Babylon and well before Pythagoras’ time—and dozens of proofs of the theorem have been put forward over the centuries: Euclid had one, and Einstein had a different one.

So, I feel a little bit better about the Jevons Paradox. 

I have been writing about environmental and climate issues for some years, and I’ve made a point out of reminding people that the economics involved can get complicated and counterintuitive. My example—which I thought was a very smart example—had to do with limiting coal use: When the advanced economies restrict the use of coal, that doesn’t necessarily mean that less coal is used. Less demand for coal in the United States should, in theory, put downward pressure on the price of coal, to such an extent that we might expect to see more coal use in places such as China and India. The perverse effect there would be that not only would coal use not decline, the coal that is used probably will be used in Chinese and Indian plants that are, on average, more polluting than U.S. or German plants. 

There is in economics something known as the Jevons Paradox, which shows that when the use of a particular resource becomes more efficient—when our cars go from 10 mph to 30 mph thanks to technological improvement or government mandates—we end up using more of that resource rather than less, because the lower cost of use raises demand. So, even though it takes a little bit less of resource x to accomplish job y, we end up using more in total.

Do you know what William Stanley Jevons used to describe this paradox in 1865? Coal, of course. 

So much for my original insights. 

There are, of course, other examples. For example, if you figured out a more efficient way to use wood to frame a house, then you could build a 2,000-square-foot house with less wood than you would have used otherwise; but maybe you decide to build a 2,200-square-foot house instead, because you can get so much more out of your wood. Maybe structures that you might have built in a different way end up being wood-framed instead. Result: More wood use. 

(How much wood would a wood-hog hog if a wood-hog did hog wood?)

Jevons, unfortunately, had a Malthusian cast of mind—I accidentally typed “cast of mine” the first time, but that’s appropriate, too: Jevons famously predicted that Britain’s preeminent place in the world was threatened by the ultimately finite supply of inexpensive fuel: No more coal, no more British Empire, essentially. His acolytes have, unfortunately, kept up the bad habit. One of the articles linked in the Wikipedia entry begins with this summary:

The Jevons Paradox, which was first expressed in 1865 by William Stanley Jevons in relation to use of coal, states that an increase in efficiency in using a resource leads to increased use of that resource rather than to a reduction. This has subsequently been proved to apply not just to fossil fuels, but other resource use scenarios. For example, doubling the efficiency of food production per hectare over the last 50 years (due to the Green Revolution) did not solve the problem of hunger. The increase in efficiency increased production and worsened hunger because of the resulting increase in population. 

This is, of course, entirely untrue: In 1970, a third of the population in the developing world was undernourished, a number that fell rapidly throughout the rest of the 20^th century and into our own time, down to a little less than 13 percent—not of the world, but of the poor countries. As recently as 1990, some 656,314 people died worldwide from “protein-energy malnutrition,” in the clinical phrase, a number that declined to 212,242 by 2019—starvation deaths in absolute-number terms were reduced by two-thirds even as populations grew. 

Population Bomb author Paul Erhlich has made a very comfortable career predicting mass-starvation events and always getting it wrong: Hundreds of millions of people were, according to his calculations, supposed to have died of starvation in the 1970s, not only in sub-Saharan Africa, India, and China but in the wealthy countries, too. That … did not happen!

The Malthusians almost always get it wrong. 

Jevon-style analysis predicting “peak oil” or “peak x” typically ignores the basics from Econ 101: Even if technological progress makes using a certain resource more efficient and thereby encourages its use, when you run up against the reality of scarcity, you can expect prices to go up and, as a result, that demand will go down. Some things really are finite, and nobody appreciates that fact better than the people who pull those commodities out of the ground for a living.

Words About Words

Inflation costs us financially, but it also costs us lexically. 

Just as economic changes have forced us to retire the formerly glamorous-sounding “jet set”—because the poor souls bovinely packed into Southwest flights are not very much like Don Draper drinking a bloody mary on a first-class TWA flight from JFK to LAX—we’re going to lose “millionaire,” too. Already, the word is a little ridiculous when considered too literally: There are a lot of people with some home equity and modest IRAs who are millionaires in the technical sense, i.e., people with a net worth in excess of $1 million. But they are not Thurston Howell III. On the other hand, we have not yet inflated ourselves to the point at which billionaire can do the work that millionaire used to do—there aren’t enough Waltons and Zuckerbergs to go around. Multimillionaire is too vague, in that there is a heck of a lot of difference between $2 million and $999 million. There is a big difference between the decamillionaires ($10 million-plus) and the hectomillionaires ($100 million-plus). But those Greek-derived terms are unwieldy, and using them in general writing often feels like a stunt. 

But, as “jet set” shows, substituting the qualitative for the quantitative is no good, either, because—hooray!—the widening circle of radical prosperity means that things that once were millionaires’ conveniences and pleasures are much more commonly consumed. “Champagne and caviar”? Sure, but you can get a tin of decent caviar and a bottle of Veuve Clicquot at Whole Foods for $150—that’s not nothing, but there are a lot of Americans with an extra $150 to spend frivolously. 

Maybe it’s because I am traveling this week, but I keep reverting to my preferred bright neon socioeconomic dividing line in American life in the early 21^st century: There’s private-jet money, and there’s everybody else. Being a mere millionaire does not mean a lot in Anno Domini 2023. 

Elsewhere

You can buy my most recent book, Big White Ghetto, here. 

You can buy my other books here. 

You can see my New York Post columns here. 

Please subscribe to the Dispatch if you haven’t. 

Elsewhere Elsewhere … 

What does a Marine have to do to get fired?

I don’t mean these three:

A Marine charged with taking part in the January 6 insurrection at the U.S. Capitol was transferred into a highly sensitive intelligence assignment at the headquarters of the National Security Agency after the violent attempt to overturn the 2020 election results, Marine Corps officials have acknowledged. The Marine confessed to his role in the Capitol riot last summer during a security clearance interview, but was not charged until last month.

Following his alleged participation in the 2021 insurrection, Sgt. Joshua Abate, a special communication signals analyst, was assigned to the Marine Cryptologic Support Battalion, which acts as a liaison between the Marines and the NSA at Fort Meade. The transfer into the liaison unit after the Capitol riot placed Abate inside one of the most sensitive facilities in the entire U.S. government.

Two other Marines charged with entering the Capitol alongside Abate on January 6 were also given sensitive new intelligence assignments within the Marine Corps after the insurrection, according to statements from the Corps. Sgt. Dodge Dale Hellonen was assigned to the 3^rd Marine Raider Support Battalion, which provides intelligence support to the Marine Forces Special Operations Command at Camp LeJeune, North Carolina. And Cpl. Micah Coomer was assigned to the Marines 1^st Radio Battalion, which provides signals intelligence and electronic warfare support for the Marine Expeditionary Force based in Camp Pendleton, California.

Those guys don’t need to be fired—they need to go to jail. The one who needs to be fired is whoever made the decision to promote them and give them sensitive assignments. At some point, we have to expect people—including military officers—to do their jobs. 

If not fired, they should at least be demoted. Surely there are toilets that need scrubbing somewhere. 

In Closing

Last week, I was invited to speak to a group of very (mostly) nice conservative activists, as I do from time to time. I enjoy these talks and am grateful for the opportunity, but I sometimes wonder why people invite me to speak at these things. The people who turn out for these events tend to be very active, very partisan Republicans, committeemen and county chairmen and that sort of thing. And what do I tell them? “Your party is corrupt and dysfunctional, your candidates are mostly somewhere between pathetic and loathsome, none of this is as important as you think it is, and you need a lot less Fox News and a lot more confession and penance.” This message is not what you would call universally well-received. Conservatives have grown so used to being pandered to that they have become as sensitive as Bryn Mawr undergraduates, on high alert for the most subtle slight or insult. And I’m not that subtle.