The Supreme Court has shaped social, political and civil life for Americans, more so than any other institution. It has weighed in on the death penalty (first against, then for) - and on abortion (first for, then against). However, one issue for which its rulings have always followed the same direction is freedom of the press. This is due to the First Amendment, which states that “Congress shall make no law ... abridging the freedom of speech, or of the press”. Even highly conservative panels of judges have been compelled to exercise tolerance in this domain.
The late New York Times journalist Anthony Lewis, who reported on the Supreme Court for decades, wrote in his essay Freedom for the thought that we hate: a biography of the First Amendment, - a legal text enacted in 1791, - that “America’s commitment to free speech is fascinating because it stems from a particularly repressive society,” that of Reformation England and the Europe that later rose up against the effects of the French Revolution.
The First Amendment accounts for a number of rulings that serve as legal landmarks for freedom of speech. The case of Hustler Magazine v. Falwell (1988) - beautifully recounted in Milos Forman’s film The People vs. Larry Flynt - is one such reference: he had published a cartoon ad depicting him having drunken sex with his mother in a toilet. In the film, his lawyer’s speech, played by Edward Norton, before the magistrates is particularly heartwarming: “I am not trying to suggest that you should like what Larry Flynt does. I don’t like what Larry Flynt does, but what I do like is the fact that I live in a country where you and I can make that decision for ourselves.”
However, there is an even more interesting ruling that characterized Dominion’s recent lawsuit against the ultra-conservative Fox network, which it accused of deliberately lying by holding the company responsible (with no proof and against all evidence) for manipulating the election results - The New York Times v. L.B. Sullivan (1964). Sullivan, a Montgomery police chief, denounced the newspaper for an advertisement intended to raise funds for the defense of Martin Luther King (who was a reverend in the Alabama capital from 1954 to 1960). The text contained some inaccuracies, stating, for example, that King was arrested seven times, when in fact he was apprehended four times. The climate against the newspaper in the Old South was so hostile that, during the trial, its lawyer had to hide in a motel some 40 kilometers from Montgomery because he was at risk of being lynched, according to Lewis.
However, the Supreme Court ruled in favor of The New York Times. The judges argued that journalists have the right to be mistaken and that it would be impossible to produce a newspaper with no errors. Their description of the profession echoes the old definition that David Randall provided in The Universal Journalist: “All newspapers should publish an explanatory note in all their editions reading as follows: ‘This newspaper, and the hundreds of thousands of words it contains, have been produced in about 15 hours by a group of fallible human beings, who work at overcrowded desks trying to find out what has happened in the world by turning to people who are sometimes reluctant to do so and are sometimes decidedly opposed to doing it.”
The judgment states that for defamation to occur there must be actual malice and that the onus of proof must be on the person allegedly defamed. “A law that would require criticism of officials’ conduct to guarantee the truth of all statements of fact amounts to something resembling self-censorship,” holds the ruling, which defends that “freedom of expression enables the rest of the freedoms to breathe.”
All of Fox’s hopes in its lawsuit with Dominion hinged on this ruling. They eventually settled by paying the company $787 million, convinced that they faced an uphill battle because dozens of internal e-mails proved that the network’s anchors and executives were fully aware of their lies and that Donald Trump had lost the election. The documentation made it abundantly clear that actual malice was involved and that lies were commonplace.
On the strength of the Supreme Court rulings, which serve as a guiding light for freedom of expression throughout the world, the Fox network succeeded in growing and prospering on the basis of a tolerance that it denied to others. One movie (Bombshell) and one TV series (The Loudest Voice) portrayed the toxic atmosphere at the network, under the domination of its founder, Roger Ailes, who was ultimately fired for sexual abuse, along with flagship anchor Bill O’Reilly.
Nevertheless, they also showcased the enormous power he achieved in the conservative sectors of the United States. And his blatant disregard for the truth: Ailes’ purpose was not to tell what was going on, but what his viewers wanted to hear. He undermined one of the institutions underpinning a democratic society - agreement on facts, disagreement on policies. The lies spread by numerous Spanish media outlets and politicians about the perpetrators of the 11-M attacks, for example, are straight out of the Fox school. Their legacy is an unending trail of lies that reaches all of us. And there is nothing to indicate that, once the corresponding paycheck has been signed - as Pepe Isbert says in Bienvenido mister Marshall: “As your mayor, I owe you an explanation and I will pay you for it”-, things will not go the same way.
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