Right to Criticize

Access to truthful information allows people to be active participants in our democracy. Freedom of the press plays a crucial role in this process. This includes the right to criticize government officials and public figures.


In Freedom for the Though That We Hate, author Anthony Lewis describes cases that have had a lasting impact on freedom of the press. In 1927, a court order shut down an antisemitic newspaper put out by Jay M. Near after nine issues. The case ended up in the Supreme Court. By a narrow majority of 5-to-4, the court found the ban on the newspaper in violation of the First Amendment. This decision made it difficult for judges to issue prior restraint on the press.


Justice George Sutherland stated that the people are entitled to “full information in respect of the doings or misdoings of their government; informed public opinion is the most potent of all restraints upon misgovernment.” (Pg. 48)


Just over 30 years later, The New York Times published an advertisement by supporters of Dr. Martin. Luther King Jr. The advertisement called out racist southern officials for using lawless tactics against the civil rights movement. While the ad didn’t name names, L.B. Sullivan, a commissioner in Alabama, sued the Times for libel. The court awarded Sullivan  $500,000 in damages.


At this time, publications accused of libel were assumed false, and the burden was on the publisher to prove their statements true. This lawsuit had a significant impact on the civil rights movement, as other publications would be reluctant to cover it, for fear of being sued.


This case went to the Supreme Court, where the assumptions of libel were reversed. The Times lawyer, Herbet Wechsler argued that “To allow libel judgements for any misstatement would discourage the press and individual citizens from voicing criticism lest they make a mistake.” (Pg. 52) Going forward officials could not win libel damages without proving that a false statement had been made with knowledge of its falsity.


This victory for The New York Times resulted in open coverage of the civil rights movement. Informing the public of what was going on in the South, led to public outrage that pressed Congress to act. In other words, freedom of the press and the free flow of information allowed the public to take part in democracy.


These cases paved the way for a new era of journalism. Critical coverage of events like Vietnam and Watergate, and the publishing of the Pentagon Papers, empowered the public.


The results of these cases are still relevant today. President Trump has made many attacks on news outlets that have been critical of his administration, calling the press the “enemy of the people.” As Trump has pledges to open the libel laws, and make it easier for people to sue publishers for defamation, protecting the freedom of the press to be critical of government officials is as important as ever.

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