Our newsroom had a visit last week from Jay Ward Brown, a part-time Provincetown resident whose other home is in Virginia. Brown reads the Indie as well as his local weekly in Virginia, the Rappahannock News. He also practices law at the Washington firm Ballard Spahr, specializing in representing newspapers in defamation cases.
We were moved by his clear analysis of the First Amendment’s guarantee of freedom of the press and the threats to that promise today.
Brown has worked on some important cases, including Sarah Palin’s claim that she was defamed in an editorial in the New York Times. (Palin’s claim was rejected by a jury last year; she has appealed.) His work matters to us as a small community paper because of the far-reaching effects these cases have on press freedom.
Palin’s case is part of a concerted effort to get the U.S. Supreme Court to reverse New York Times Company v. Sullivan (1964), a cornerstone of case law governing libel. Sullivan, Brown explained, established the principle that newspapers must be allowed to make honest mistakes while reporting on and criticizing public officials. For a libel claim to be valid, the court ruled, an official would have to show that the editors knew in advance that a statement was false or exhibited reckless disregard of the facts.
In Sullivan, the Court established that in free debate, errors are inevitable — and they “must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive.” By setting a high bar for public figures to prove a libel action, the ruling opened the way to an era of fearless reporting of stories about the Pentagon Papers and the Vietnam War.
At least two of the current Supreme Court justices, Clarence Thomas and Neil Gorsuch, have said they want to revisit the Sullivan decision.
Brown told us about another case working its way through the courts: Robert F. Kennedy Jr., Dr. Joseph Mercola, and a group of other purveyors of misinformation about vaccines and Covid are suing the Washington Post, the Associated Press, the BBC, and Reuters for conspiring as a self-appointed “truth police,” violating their right to free speech.
The defendants did collaborate — for the purpose of exposing disinformation that led to people’s deaths. They are accused of violating antitrust law, which seems like an extremely far-fetched argument.
But the suit was filed in U.S. District Court in Amarillo, Texas, where the only judge is Matthew Kacsmaryk, the Trump appointee who recently tried single-handedly to overturn the FDA’s approval, 23 years ago, of the abortion medication mifepristone.
It is chilling to consider the long reach of this kind of “judge shopping,” where plaintiffs with an extreme political agenda can choose courts where they are almost sure of getting the outcome they want.
These threats to the freedom to fearlessly criticize the powerful and to call out demonstrable falsehoods show us all — not just reporters — how long-held rights that define our democracy can be rapidly removed.