In the Storm: Could It Get Worse?

By Scott V. Sandford
Law and Justice Editor with Don Kent in the Spy Weather Center

Outside our newsroom window today it looks something like this:

We don't have anything much to say about the weather, other than to hope you got your Doritos at the Market Basket before they ran out (more bad news for Biden!), but it did get us thinking about the other storm raging, not just in New England.

We're referring to the ongoing assault on our democratic institutions at the hands of enraged white supremacists stirred up by the Former Loser Grifter.  As Barton Gellman said in this month's Atlantic:

Technically, the next attempt to overthrow a national election may not qualify as a coup. It will rely on subversion more than violence, although each will have its place. If the plot succeeds, the ballots cast by American voters will not decide the presidency in 2024. Thousands of votes will be thrown away, or millions, to produce the required effect. The winner will be declared the loser. The loser will be certified president-elect.

The prospect of this democratic collapse is not remote. People with the motive to make it happen are manufacturing the means. Given the opportunity, they will act. They are acting already. 

White men will do great under Republican rule, right?

Think he's being hysterical? Read it for yourself and tell us what he got wrong.

And it wouldn't be the first time this century that the popular will was overturned by legal or illegal means.  The same thing happened in 2000 and 2016, and in each case one party (the Republicans, if you didn't take the hint) were perfectly OK with it, just as white supremacists of both parties were OK with suppressing the votes of Black Americans from 1789 to 1965, and then again after 2013 (thank you, John Roberts '76!).

This is certainly bad news for minorities, women, and other groups in the gun sights (literal and figurative) of white supremacist Republicans.  But let's consider what it means for white men like us.

You might think that the collapse of democracy and its replacement by white male Republican oligarchy wouldn't affect white men too badly.  We could still lift weights with Squiggy and drink ourselves insensible during Beach Week.  We don't need abortions.  We aren't stopped and shot by police on the basis of our skin color.  And if we're rich or old, we have health insurance.

What could go wrong?  Well, for those of us of the Hebrew persuasion (as our classmates used to say) plenty.  It turns out that the same nice white folks Biden didn't reach out to who are working to suppress any discussion of America's 400 years history of slavery and racism are also working to suppress telling their children about the Holocaust.

Last week, the white men comprising the McMinn County Tennessee school board decided that their impressionable eighth graders should no longer read Art Spiegelman's classic graphic memoir of his father's experience in Nazi concentration camps, Maus, because there was some bad language.  The details weren't too important to these crackers:

In any event, Shamblin suggested, this [deleting the bad words] wouldn’t do: “It’s more offensive than that.” He added this kicker: “I have not seen the book and read the whole book. I read the reviews.” The only item on the meeting’s agenda was what to do about Maus, and this board member had not bothered to glance at it. 

It doesn't get any whitemanner than that. Except for this one fun fact:  the county seat of McMinn County is, wait for it, Athens.

Don't worry; your free press is safe with them

Suppressing whole swaths of mankind's recent history to make dopey white men feel better about themselves might raise First Amendment issues. Before white men in smoking jackets get too comfortable with their rights under the First Amendment, maybe they should read it: 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

You'll no doubt recall that one of the white reactionary Republican priorities since 1968 has been to pack the Supreme Court with narrow minded Republicans who believe in interpreting the Constitution according to its literal words only (“textualism”) or the presumed original intent of the white men, many of them slaveholders, who wrote it (“originalism”).

Don't leave – this is going to get less boring, we promise.

The words of the First Amendment bind only the Congress.   They don't prohibit any state, any county, or any school board from regulating or suppressing free speech as they see fit.  And as we know from McMinn County and an insane number of other places that have banned telling the truth about American history, they see fit. 

So why can't they?  Well, in 1964 the Supreme Court held that the First Amendment protection of free speech did apply to states in a case called Sullivan v. New York Times, 376 U.S. 254 (1964):

By the way, lots of rights are protected from state interference on the same basis, even though they aren't explicitly stated in the Bill of Rights, like the right to abortion and bodily autonomy set out in Roe v. Wade.  And that principle, known as “incorporation,” is an unshakable pillar of Supreme Court jurisprudence.

STOP PRESS: We're just being handed a bulletin by our intern Louise.  It looks the right to abortion will end this year.  As Justice Long Dong Thomas said at oral argument:

“What is confusing is that if we were talking about the Second Amendment, I know exactly what we’re talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about because it’s written, it’s there. What specifically is the right here that we’re talking about?” Thomas asked. 

There's no “specific” Constitutional right protecting speech from being regulated or suppressed by a state as it sees fit either.

Of course, Justice Pubes on Cokes hasn't ever questioned the broad protection for free speech against state regulation established by New York Times v. Sullivan, has he?

Another funny story! 

Just before the Fourth of July holiday, Justice Thomas again urged his colleagues to revisit Sullivan, this time joined by Justice Neil Gorsuch....Thomas noted that, "[t]he lack of historical support for this court's actual-malice requirement is reason enough to take a second look at the court's doctrine," and urged the Court to reconsider Sullivan as it has "real-world effects. Public figure or private, lies impose real harm."

This year, the right to abortion disappears.  Next year could be free speech's turn.  Imagine if you will that “Ladies' Man” Clarence Thomas and “Thanks Mom” Gorsuch manage to persuade Sulky Sam Alito, Spooky Amy Barrett and Brett “I just want to grab it” Kavanaugh that it's time to teach the media a lesson and limit, if not overrule, Sullivan.

Or they could adopt an attitude of “neutrality” as between speakers and states that want to limit such speech.  Just like abortion.

Maybe white men shouldn't look so smug

All five have been subject to what they believe is terribly unfair criticism.  If Thomas could sue any media outlet for stating (correctly) that he is a perjurer and a sex offender under the laws of a Republican-friendly jurisdiction (say, Alabama), what would happen?  Unlike the facts in Sullivan (the Court noted that the Times's Alabama circulation was 394), in this Internet era all media are readily available in every state.  They are therefore subject to defamation suits in every state.  Therefore, if Sullivan were overturned, the free press would be free only to the extent permitted by the most redneck truth-denying white-supremacist state in the country.  Like Alabama.

Or a state could establish a bounty system for private citizens to sue any media outlet that publishes anything that makes them feel “uncomfortable.” 

Far-fetched?

It's as inconceivable as a defeated President (who also called for overruling Sullivan) inciting a mob to attack the Capitol to overturn a democratic election.  That happened, and for as long as we have the freedom to speak regardless of what Southern white supremacists say, you can read all about it.

But back to our fellow white men fat and happy in their smoking jackets.  Maybe the new Republican oligarchy won't lead to your bleeding to death following, say, an illegal abortion, or being shot by a cop because you were Black and so was the cellphone in your hand, but it might put a bullet through the free and independent press that at least sometimes will tell you the truth about your white male overlords.  

You'll be in the same position as the schoolchildren in Tennessee who have lost the right to learn about the Holocaust.  Or American slavery.  Or the role of vaccines in preventing infectious disease.  Or really anything at all.

UPDATE January 30, 2022 1200.

The sun is out.

So is Margaret Sullivan's latest warning:

But perhaps most potentially consequential is Palin’s suit against the Times over a 2017 editorial that inaccurately drew a connection between her political rhetoric and the shooting that gravely injured then-congresswoman Gabby Giffords and killed six others in 2011. ...

It’s not inconceivable that Palin v. Times could make its way to the Supreme Court. If it does, an unfulfilled promise of T---- — that he would “open up” the libel laws — might come to pass. Most legal experts scoffed when T----, both as candidate and president, declared that he wanted to make it easier for aggrieved public officials, such as himself, to sue news organizations and “win lots of money.”

Despite his bluster, the legal foundation on which those laws are built is still standing. That’s the 1964 Supreme Court ruling in New York Times Co. v. Sullivan that gives significant protections to news organizations when they are sued by public figures, requiring that plaintiffs prove “actual malice” or “reckless disregard” for the truth — in other words, that they published information knowing full well that it was false and proceeding anyway. The Times’s swift correction of its mistake strongly suggests there was no reckless disregard for the truth; just sloppy editing and poor judgment.

But, in today’s fraught atmosphere, it’s an open question whether judges and juries will see it that way.

“It seems like a sure bet that the press-friendly standard for libel the Times v. Sullivan case established is in for a serious challenge,” said Nicholas Lemann ['76], a professor at Columbia Journalism School and staff writer for the New Yorker magazine.

After all, as Lemann noted in an email to me, the current Supreme Court already “has shown that it is eager to revisit, and possibly reverse, the great liberal victories of the 1960s and 70s,” and Justices Neil M. Gorsuch and Clarence Thomas both have publicly said they would like to reconsider Times v. Sullivan.