We should heed what SCOTUS said unanimously in New York Times Co. v. Sullivan (1964) about our need to re-learn "the lesson[s] to be drawn from the great controversy over the Sedition Act of 1798." We should re-learn those lessons today, in part, because that "great controversy" was almost as great as the controversy over the ratification of the original Constitution and the controversy over the subsequent ratification of the first 10 amendments. At least as important, the "great controversy over the Sedition Act of 1798" precisely "crystallized a national awareness of the central meaning of the First Amendment." Crucially, it did so only a mere decade after the original Constitution was ratified (in 1788) and less than a decade after the first 10 amendments were ratified (in 1791). So the vast majority of the people who wrote, debated and ratified all the relevant parts of our Constitution were still alive and able to judge for themselves the power of the people to criticize our public servants and other particularly powerful people.
As SCOTUS in Sullivan highlighted, perhaps the first lesson to be learned is from the plain text of the Sedition Act, itself. Even if criticism brought even the highest national officials “into contempt or disrepute” and even “excite[d] against them” the “hatred” of the “people,” the Act expressly precluded punishing such expression or communication until the government had proved (beyond a reasonable doubt) material facts establishing how it was, first, “false," and then also proved facts establishing how it was "scandalous, and malicious." Those standards--in the Act--prompted SCOTUS in Sullivan to conclude that our Constitution protects our criticism of any purported public service of any purported public servant unless and until the government has proved material facts establishing how it was, first, a “falsehood" and then how it was "made" with "actual malice," i.e., actual "knowledge that it was false" or constructive knowledge, i.e., "reckless disregard of whether it was false or not."
Our Constitution precludes "any test of truth" that "puts the burden of proving truth on the speaker." Any "rule compelling the critic of official conduct to guarantee the truth of all his factual assertions" violates our Constitution. "The constitutional guarantees require" a "federal rule that prohibits a public official from" punishing or penalizing a speaker for the content of criticism "relating to [any] official conduct" unless and until someone "proves [how] the statement" was a "falsehood" and how it "was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Under our Constitution, "neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct," and even "the combination of the two elements is no less inadequate."
SCOTUS also clarified why the foregoing rule could not be limited to any particular category of expression, e.g., defamation (or parody or satire). SCOTUS (quoting James Madison) emphasized profound and overarching truths about our Constitution that are the foundation of our First Amendment rights and freedoms. Our "Constitution created a form of government under which ‘The people, not the government, possess the absolute sovereignty,’ so in our "Republican Government," in general, "the censorial power is in the people over the Government, and not in the Government over the people."
SCOTUS emphasized a crucial truth, i.e., about the essence of the entire Constitution: "[t]he structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels." As a consequence of such distrust, "the people of this nation have ordained in the light of history” that “these liberties” (our First Amendment rights and freedoms) are “essential to enlightened opinion and right conduct on the part of” all American “citizens” and our public servants. "Criticism of their official conduct" (regardless of the category of criticism (e.g., parody or satire) or the category of a claim against a critic (e.g., for defamation)) enjoys "constitutional protection," and it "does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations."
For very good reason, James Madison was long and often lauded as the "Father of the Constitution" and then the "Father of the Bill of Rights." Some of the best writing about our freedom of expression, communication and association and the right to petition and assemble was written by Madison.
One of the most pernicious practices of opponents (and proponents) of our freedom of expression and communication is trying to cram expression and communication into a particular category. SCOTUS repeatedly has highlighted the impropriety of this practice.
In N.A.A.C.P. v. Button (1963) SCOTUS emphasized that our public servants “cannot foreclose the exercise of constitutional rights by mere labels.” No “regulatory measures” (including any court rule or ruling) “no matter how sophisticated,” can “be employed in purpose or in effect to stifle, penalize, or curb” our “exercise of First Amendment rights.”
The following year in New York Times Co. v. Sullivan (1964), SCOTUS unanimously re-emphasized that no "mere labels” can justify (or prevent) “repression of expression.” “The test is not the [mere] form in” (or the label under) which government “power” was “applied but” whether “such power” was “exercised” consistent with our Constitution.
Here, the categories/labels are "parody," "satire" and "defamation." In Hustler, the protections in our Constitution were not limited to satire, parody or claims of defamation (and in Sullivan, the protections in our Constitution were not limited to defamation claims). In Hustler, SCOTUS expressly focused on speech about "public affairs," "public issues," "public office" and "public figures" i.e., people with the power to "shape events in areas of concern to society at large." Our Constitution protects our criticism of particularly powerful people, i.e., public officials and public figures. SCOTUS in Hustler even highlighted Garrison v. Louisiana, which did not pertain to satire, parody or defamation. SCOTUS in Garrison addressed our right to criticize the purported public service of any purported public servant (a lawyer publicly criticized 8 judges for being inexcusably lazy, if not criminally corrupt).
I wouldn't go so far as to say or imply that SCOTUS in Hustler Magazine v. Falwell (1988) said anything like "parody is not a statement of fact made with 'actual malice.' " SCOTUS was far more restrained: "The jury" (not SCOTUS) had concluded that the portrayal of Falwell could not "reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated." That particular jury reached a conclusion based on the facts of that particular case. A different jury in a different case could reach the opposite result regarding a different form of parody.
In Hustler, SCOTUS emphasized that our Constitution precludes punishing or penalizing criticism of any public servant (any government employee) or any socially powerful or influential person without proof of material facts establishing how the criticism constituted a "falsehood." Falwell had failed to prove any false statement or implication of fact. But that is not at all the same thing as saying that any speech that is labeled "parody" cannot be a statement of fact. That conclusion, like beauty, is in the eye of the beholder.
Another way to put how to properly analyze such speech is to ask whether it caused actual harm (because people were deceived and believed that a falsehood was true) or whether it caused mere hurt (because people laughed). Was the speech harmful deception or mere hurtful derision? Falwell improperly focused on the latter (claiming "intentional infliction of emotional distress").
Thank you for including a link to the actual SCOTUS decision. Its elaboration on the meaning of our Constitution is well worth reading because it highlights two important truths. First, our Constitution does not protect political satire merely because it is labeled or deemed "satire." Second, our Constitution and SCOTUS precedent established principles which protect far more than mere satire and which are extremely relevant today.
Hustler emphasized how our Constitution (due process of law) protects all criticism of a politically or socially powerful or influential person. Such criticism cannot be punished or penalized merely because its content "was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress." The critic's "intent" or "motivation" to cause offense is irrelevant. Criticism of a politically or socially powerful or influential person cannot "cannot, consistently with the First Amendment" be punished or penalized even if the critic intended to cause "emotional harm" or even if the "emotional harm" actually was caused and it actually was "serious" or "severe" and the criticism was deemed to be "outrageous."
Criticism of our public servants (any government employee) or any socially powerful or influential person cannot be punished or penalized based on the presumption that "it is of no constitutional import whether the statement was a fact or an opinion, or whether it was true or false." Certain due process of law protects all such criticism. Falwell tried to dispense with all the following due process of law, i.e., proof of material facts.
Our Constitution precludes punishing or penalizing criticism of any public servant (any government employee) or any socially powerful or influential person without proof of material facts establishing how the criticism constituted a "falsehood." Falwell had failed to prove any false statement or implication of fact. "The jury" had concluded that the portrayal of Falwell could not "reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated."
Even if a falsehood has been proved, the opponent of the criticism of any public servant (any government employee) or any socially powerful or influential person must prove material facts establishing that such falsehood was presented "with the requisite level of culpability," i.e., with "actual malice," which means actual "knowledge that [the falsehood] was false" or constructive knowledge, i.e., that the falsehood was presented "with reckless disregard of whether it was false or not."
The First Amendment secures "the freedom of speech" and "press" (freedom of expression and communication) against attack by government (including judges or juries acting to protect private parties). That substantive law (the First Amendment and SCOTUS precedent elaborating on it) determines the process that is due. The Fifth and Fourteenth Amendments preclude depriving any "person" of any "liberty" or any "property" before affording such person all "process of law" that is "due." Punishing or penalizing criticism of any public servant or any socially powerful or influential person without proof of all material facts violates rights secured by the First Amendment and the Fifth or Fourteenth Amendments.
Political satire is not childish invective, neither is it ridicule nor is it snark. It is a juxtaposition of the outlandish, analogized with a facet of reality that is the butt of the satire. It is always, when well-done, sophisticated and trenchant.
Yup, and that *would* have been the end of it had Brendan Carr simply kept his big yap shut. But he didn't so now the government is involved, and now we have to hold our noses and defend Kimmel.
We aren't really defending Kimmel per se. We're defending ourselves and people we care about. See, e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992) (Stevens, Blackmun, O’Connor, dissenting):
"As Thomas Paine warned, an 'avidity to punish is always dangerous to liberty' because it leads a nation 'to stretch, to misinterpret, and to misapply even the best of laws.' To counter that tendency, he reminds us:
'He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.' "
Haha, unfortunately yes — me and FIRE and anyone else that wants to stand on principle over popularity. I value freedom of expression more than I dislike Kimmel (and I’ve disliked him for 27 years ever since he was the worst half of the Man Show).
Yes, apparently the company made a business decision--to appease the guy in charge of a government agency (and his boss) who had the power to make business considerably more difficult because of mere expression that merely offended some of our purported public servants. That's why jawboning has been acknowledged (repeatedly) to violate our Constitution.
We should heed what SCOTUS said unanimously in New York Times Co. v. Sullivan (1964) about our need to re-learn "the lesson[s] to be drawn from the great controversy over the Sedition Act of 1798." We should re-learn those lessons today, in part, because that "great controversy" was almost as great as the controversy over the ratification of the original Constitution and the controversy over the subsequent ratification of the first 10 amendments. At least as important, the "great controversy over the Sedition Act of 1798" precisely "crystallized a national awareness of the central meaning of the First Amendment." Crucially, it did so only a mere decade after the original Constitution was ratified (in 1788) and less than a decade after the first 10 amendments were ratified (in 1791). So the vast majority of the people who wrote, debated and ratified all the relevant parts of our Constitution were still alive and able to judge for themselves the power of the people to criticize our public servants and other particularly powerful people.
As SCOTUS in Sullivan highlighted, perhaps the first lesson to be learned is from the plain text of the Sedition Act, itself. Even if criticism brought even the highest national officials “into contempt or disrepute” and even “excite[d] against them” the “hatred” of the “people,” the Act expressly precluded punishing such expression or communication until the government had proved (beyond a reasonable doubt) material facts establishing how it was, first, “false," and then also proved facts establishing how it was "scandalous, and malicious." Those standards--in the Act--prompted SCOTUS in Sullivan to conclude that our Constitution protects our criticism of any purported public service of any purported public servant unless and until the government has proved material facts establishing how it was, first, a “falsehood" and then how it was "made" with "actual malice," i.e., actual "knowledge that it was false" or constructive knowledge, i.e., "reckless disregard of whether it was false or not."
Our Constitution precludes "any test of truth" that "puts the burden of proving truth on the speaker." Any "rule compelling the critic of official conduct to guarantee the truth of all his factual assertions" violates our Constitution. "The constitutional guarantees require" a "federal rule that prohibits a public official from" punishing or penalizing a speaker for the content of criticism "relating to [any] official conduct" unless and until someone "proves [how] the statement" was a "falsehood" and how it "was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Under our Constitution, "neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct," and even "the combination of the two elements is no less inadequate."
SCOTUS also clarified why the foregoing rule could not be limited to any particular category of expression, e.g., defamation (or parody or satire). SCOTUS (quoting James Madison) emphasized profound and overarching truths about our Constitution that are the foundation of our First Amendment rights and freedoms. Our "Constitution created a form of government under which ‘The people, not the government, possess the absolute sovereignty,’ so in our "Republican Government," in general, "the censorial power is in the people over the Government, and not in the Government over the people."
SCOTUS emphasized a crucial truth, i.e., about the essence of the entire Constitution: "[t]he structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels." As a consequence of such distrust, "the people of this nation have ordained in the light of history” that “these liberties” (our First Amendment rights and freedoms) are “essential to enlightened opinion and right conduct on the part of” all American “citizens” and our public servants. "Criticism of their official conduct" (regardless of the category of criticism (e.g., parody or satire) or the category of a claim against a critic (e.g., for defamation)) enjoys "constitutional protection," and it "does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations."
For very good reason, James Madison was long and often lauded as the "Father of the Constitution" and then the "Father of the Bill of Rights." Some of the best writing about our freedom of expression, communication and association and the right to petition and assemble was written by Madison.
One of the most pernicious practices of opponents (and proponents) of our freedom of expression and communication is trying to cram expression and communication into a particular category. SCOTUS repeatedly has highlighted the impropriety of this practice.
In N.A.A.C.P. v. Button (1963) SCOTUS emphasized that our public servants “cannot foreclose the exercise of constitutional rights by mere labels.” No “regulatory measures” (including any court rule or ruling) “no matter how sophisticated,” can “be employed in purpose or in effect to stifle, penalize, or curb” our “exercise of First Amendment rights.”
The following year in New York Times Co. v. Sullivan (1964), SCOTUS unanimously re-emphasized that no "mere labels” can justify (or prevent) “repression of expression.” “The test is not the [mere] form in” (or the label under) which government “power” was “applied but” whether “such power” was “exercised” consistent with our Constitution.
Here, the categories/labels are "parody," "satire" and "defamation." In Hustler, the protections in our Constitution were not limited to satire, parody or claims of defamation (and in Sullivan, the protections in our Constitution were not limited to defamation claims). In Hustler, SCOTUS expressly focused on speech about "public affairs," "public issues," "public office" and "public figures" i.e., people with the power to "shape events in areas of concern to society at large." Our Constitution protects our criticism of particularly powerful people, i.e., public officials and public figures. SCOTUS in Hustler even highlighted Garrison v. Louisiana, which did not pertain to satire, parody or defamation. SCOTUS in Garrison addressed our right to criticize the purported public service of any purported public servant (a lawyer publicly criticized 8 judges for being inexcusably lazy, if not criminally corrupt).
I wouldn't go so far as to say or imply that SCOTUS in Hustler Magazine v. Falwell (1988) said anything like "parody is not a statement of fact made with 'actual malice.' " SCOTUS was far more restrained: "The jury" (not SCOTUS) had concluded that the portrayal of Falwell could not "reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated." That particular jury reached a conclusion based on the facts of that particular case. A different jury in a different case could reach the opposite result regarding a different form of parody.
In Hustler, SCOTUS emphasized that our Constitution precludes punishing or penalizing criticism of any public servant (any government employee) or any socially powerful or influential person without proof of material facts establishing how the criticism constituted a "falsehood." Falwell had failed to prove any false statement or implication of fact. But that is not at all the same thing as saying that any speech that is labeled "parody" cannot be a statement of fact. That conclusion, like beauty, is in the eye of the beholder.
Another way to put how to properly analyze such speech is to ask whether it caused actual harm (because people were deceived and believed that a falsehood was true) or whether it caused mere hurt (because people laughed). Was the speech harmful deception or mere hurtful derision? Falwell improperly focused on the latter (claiming "intentional infliction of emotional distress").
Thank you for including a link to the actual SCOTUS decision. Its elaboration on the meaning of our Constitution is well worth reading because it highlights two important truths. First, our Constitution does not protect political satire merely because it is labeled or deemed "satire." Second, our Constitution and SCOTUS precedent established principles which protect far more than mere satire and which are extremely relevant today.
Hustler emphasized how our Constitution (due process of law) protects all criticism of a politically or socially powerful or influential person. Such criticism cannot be punished or penalized merely because its content "was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress." The critic's "intent" or "motivation" to cause offense is irrelevant. Criticism of a politically or socially powerful or influential person cannot "cannot, consistently with the First Amendment" be punished or penalized even if the critic intended to cause "emotional harm" or even if the "emotional harm" actually was caused and it actually was "serious" or "severe" and the criticism was deemed to be "outrageous."
Criticism of our public servants (any government employee) or any socially powerful or influential person cannot be punished or penalized based on the presumption that "it is of no constitutional import whether the statement was a fact or an opinion, or whether it was true or false." Certain due process of law protects all such criticism. Falwell tried to dispense with all the following due process of law, i.e., proof of material facts.
Our Constitution precludes punishing or penalizing criticism of any public servant (any government employee) or any socially powerful or influential person without proof of material facts establishing how the criticism constituted a "falsehood." Falwell had failed to prove any false statement or implication of fact. "The jury" had concluded that the portrayal of Falwell could not "reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated."
Even if a falsehood has been proved, the opponent of the criticism of any public servant (any government employee) or any socially powerful or influential person must prove material facts establishing that such falsehood was presented "with the requisite level of culpability," i.e., with "actual malice," which means actual "knowledge that [the falsehood] was false" or constructive knowledge, i.e., that the falsehood was presented "with reckless disregard of whether it was false or not."
The First Amendment secures "the freedom of speech" and "press" (freedom of expression and communication) against attack by government (including judges or juries acting to protect private parties). That substantive law (the First Amendment and SCOTUS precedent elaborating on it) determines the process that is due. The Fifth and Fourteenth Amendments preclude depriving any "person" of any "liberty" or any "property" before affording such person all "process of law" that is "due." Punishing or penalizing criticism of any public servant or any socially powerful or influential person without proof of all material facts violates rights secured by the First Amendment and the Fifth or Fourteenth Amendments.
Did my earlier comment get censored form the FIRE discussion?
I think it is time for a war on “war on”.
Political satire is not childish invective, neither is it ridicule nor is it snark. It is a juxtaposition of the outlandish, analogized with a facet of reality that is the butt of the satire. It is always, when well-done, sophisticated and trenchant.
As a political cartoonist and illustrator the First Amendment is the very ink of free speech. Here's a recent example: https://mark192.substack.com/p/cartoon-the-real-explosive-diarrhea
I'll let mr xkcd.com speak for my viewpoint here:
https://xkcd.com/1357/
The network that deep-6'd Kimmel is a business. It makes business decisions.
Yup, and that *would* have been the end of it had Brendan Carr simply kept his big yap shut. But he didn't so now the government is involved, and now we have to hold our noses and defend Kimmel.
We aren't really defending Kimmel per se. We're defending ourselves and people we care about. See, e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992) (Stevens, Blackmun, O’Connor, dissenting):
"As Thomas Paine warned, an 'avidity to punish is always dangerous to liberty' because it leads a nation 'to stretch, to misinterpret, and to misapply even the best of laws.' To counter that tendency, he reminds us:
'He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.' "
“We…”?
Haha, unfortunately yes — me and FIRE and anyone else that wants to stand on principle over popularity. I value freedom of expression more than I dislike Kimmel (and I’ve disliked him for 27 years ever since he was the worst half of the Man Show).
Yes, apparently the company made a business decision--to appease the guy in charge of a government agency (and his boss) who had the power to make business considerably more difficult because of mere expression that merely offended some of our purported public servants. That's why jawboning has been acknowledged (repeatedly) to violate our Constitution.