Saturday, June 10, 2023

Actual Malice

Interesting article by Glenn Reynolds, law professor at the University of Tennessee, and proprietor of Instapundit.  In the guise of reviewing a new book, which he quite likes, by Samantha Barbas; Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, Reynolds suggests a new approach to libel law.

The 1964 Supreme Court case limited the ability of public officials to sue for defamation.  The case was triggered by an advertisement in the Times designed to raise funds for the efforts of Martin Luther King Jr and other civil rights advocates campaigning in the South.  Unfortunately, the ad contained a number of factual errors, creating potential liability for the Times and an opportunity for segregationist officials to strike back against a thorn in their side.  Two Alabama officials quickly won jury verdicts totaling $1 million.  Reynolds notes the stakes for the Times:

The $500,000 judgments would be chump change to the NYT today, even adjusted for inflation (the online Inflation Calculator shows $500,000 in 1960 as amounting to $5,124,375 today).  But the Times was poorer then, and in the middle of a financial crisis and an expensive confrontation with the printer’s union.  There was reason for worry that if these lawsuits succeeded, the proliferation of copycat suits would either bring the Times down financially or completely neuter its coverage.  And other organs would not be immune.

Sullivan's attorney stated that the only way for his client to lose the case was if the Supreme Court changed the law.  It did:

Deciding that the libel law of the past 150+ years offered too much power over national media to local officials, the Court established a new rule:  Where a public official claimed libel, he/she would have to show that the publisher acted with “actual malice,” meaning knowledge of falsity, or a “reckless disregard”as to whether the report was true or not.  The “actual malice” standard was an entirely new invention of the Court, and wasn’t even argued by any of the parties.  Brennan chose that standard because he knew the Times would lose on a negligence standard, since it had in fact been negligent. 

But, over time, the Court expanded on its original ruling:

But when government officials come together to use government institutions against private entities, it looks less like a duel and more like war.  So it’s plausible that in this special circumstance the First Amendment might reach farther than it has historically reached in libel cases.

This provides a useful and compelling defense of the Sullivan decision, and a plausible reading of it as well.  The only problem is that it’s not what actually happened.

Sullivan’s legacy quickly became one of generalized protection for the institutional press against, basically, anyone who might call it to account for false and defamatory content.  In very short order, the “public official” standard, which is manageably limited to government officials, became the elastic “public figure” standard, which means whatever judges want it to mean, as illustrated in this clip from the movie Absence of Malice:

In the St. Amant case, the Court interpreted the “reckless disregard” part of actual malice to only involve publications choosing to publish anyway when they entertained serious doubts about the accuracy of the material – there was no duty to investigate even outlandish charges so long as there was no subjective doubt.  And proving the subjective doubt became much more difficult as the Iqbal and Twombly cases held that charges of malice must be “plausibly” pleaded before any discovery – which would yield information demonstrating the existence of such doubts -- could even commence.

The result, according to Reynolds, is that the current standard:

. . . amounts to a subsidy, allowing press outlets to externalize the costs of poor or slanted reporting by dumping them on those defamed, and on news consumers, rather than paying those costs itself in the form of libel judgments and insurance premiums.   It is perhaps no coincidence that trust in the press has declined steadily since right about the time the decision was handed down.  And it is probably no coincidence that American politics has become more acrimonious and divided over the same period.

This analysis holds true anytime you tilt a playing field in favor of some person or institution.  It encourages bad decision making because the risk of consquences are so low.  I've seen this personally at play with federal administrative agencies, which between Federal court deference doctrines, and they overly expansive authority granted legislatively, know they can be sloppy and get away with it because the chances of successful challenges are low and the time and cost involved in such challenges discourages contests in the first place.

His prediction, which I hope proves to be correct:

My own prediction is that the Court will not formally overrule Sullivan but that it might return to the “Public Official” rather than the “Public Figure” standard, and that it will probably overrule St. Amant, and, even more likely, Iqbal/Twombly.

Friday, June 9, 2023


From Shorpy.

June 1942. "Knox County, Tennessee. Electrification of farms made possible by the Tennessee Valley Authority. Mrs. Wiegel, farm wife, uses electric vacuum cleaner."

The dramatic transformation of daily rural life that came with electrification in the first half of the 20th century is difficult for us to grasp today.   The time and physical savings from the exhausting daily routine of laundry, cleaning, and keeping a fire going in order to cook made life much easier.

In The Path to Power, the first volume of Robert Caro's biography of Lyndon Johnson, the author compares in detail the pre-electrification life in the Texas Hill Country to that after electrification.  It was LBJ, using all his guile, manipulative talents, and relentless energy, who was responsible for bringing power to the regime and that accomplishment solidified his electoral support for decades. Read The Need For Gratitude for more on Caro and LBJ.

Electrification also plays a role in the Coen Brothers, O Brother, Where Art Thou?, when, at the climax of the film, a rural Mississippi Valley is flooded to form a reservoir for power.  The event provides Ulysses Everett McGill (George Clooney) an opportunity to lecture his companions Pete (John Turturro) and Delmar (Tim Blake Nelson) on the virtues of electrification:

"Everything's gonna be put on electricity... Out w/ the old spiritual mumbo jumbo, the superstitions, and the backward ways. We're gonna see a brave new world where they run everybody a wire and hook us all up to a grid. Yes sir, a veritable age of reason, like the one they had in France."

Thursday, June 8, 2023

The Last Championship

On this date in 1986, the Boston Celtics won the last of three NBA championships during the Larry Bird era, beating the Houston Rockets 114-97 at Boston Garden.  Bird averaged 24 points, 10 rebounds, and 10 assists a game during the six game series.

I watched the game, which was memorable, not so much for the score - the Celtics won easily - but for the atmosphere (as a Celtics fan in those years I watched or listened to a lot of games).  The Rockets had won game 5, played at The Summit in Houston, with Bird playing poorly with only 17 points, 7 rebounds, and four assists, but that wasn't the story.  In the second quarter Houston center 7'4" Ralph Sampson was ejected for slugging Celtics bench player Jerry Sichting who was 6'1".   Game 6 was back in Boston Garden and the crowd was out for blood; Sampson's blood.

We'll let Bill Simmons tell what happened next:

For Game 6 of the Finals in Boston, my father and I were sitting right on the tunnel where the players walked on and off the court. People were holding "SAMPSON IS A SISSY" signs and the entire building was chanting "SAMPSON SUCKS!" even before Houston came out for warm-ups. When Ralph came out to earsplitting boos, there was legitimate hatred in the air. Ralph walked right by us and I remember thinking, That guy's done. He looked rattled. You know the rest — Ralph played terribly, Bird played out of his mind and the Celts blew them out. But Celtics fans never stopped holding a grudge after the Sichting fight — they booed Ralph every time he came to Boston.

The 85-86 Celtics squad was the finest of the Bird years.  Bill Walton joined the team that year, squeezing 20 minutes a game out with his damaged feet and establishing a telepathic on-court relationship with Larry.  The team went 67-15, winning an incredible 40 of 41 in the Garden during the regular season and all ten of its home games during the playoffs.

Before reaching the finals, the Celtics swept the Milwaukee Bucks in four, beat the Hawks in five games, and in the opening series swept the Chicago Bulls in three.  Despite the sweep it was the Bulls series that resulted in the most memorable moment of the playoffs.  The Celtics won Game 2 in double overtime, despite second-year player Michael Jordan's 63 points.  After the game Bird said:

“I didn't think anyone was capable of doing what Michael has done to us. He is the most exciting, awesome player in the game today. I think it's just God disguised as Michael Jordan."(1)

 Bird would go on to have two more great seasons, though the Celtics lost the '87 finals to the Lakers and the '88 conference finals to the hated Pistons.

Early in the 88-89 season, Larry had double Achilles surgery, ending his season.  Though he returned for three more years, his chronic back problems, which often required spending nights at the hospital in traction, and having to lay on the floor during games, limited his playing time.  Even with those limitations, during his final two seasons, the Celtics were 77-28 when Larry played and only 30-29 when he did not.

Bird had his last memorable playoff outing in the '91 series against the Indiana Pacers.  Tied 2-2 in a best of five series, Bird crashed to the floor face-first in the second quarter.  It turned out he had fractured his cheek bone, and with a possible concussion was advised by the team doctor to sit out the rest of the game.  Instead he returned in the middle of the third quarter and dominated the rest of the game, which the Celtics won. 

Bird was a member of the Dream Team at the 1992 Barcelona Olympics but his back was so bad he could not play.  However, while the Dream Team was training, a bunch of college all-stars was brought in to practice against them leading Jamal Mashburn to tell this very funny story about Larry and Magic Johnson

And there is no better way to end this post than with a Larry Bird highlight video.  Enjoy the passes.


(1)  I can't resist throwing in this quote from Pat Riley: 

"If I had to choose a player to take a shot to save a game, I’d choose Michael Jordan. If I had to choose a player to take a shot to save my life, I’d take Larry Bird."

Wednesday, June 7, 2023

At The Border

It's worth listening to this entire press conference in Nogales AZ by Senators Sinema (I-AZ) and Lankford (R-OK) regarding their recent border visit. Sinema is chair of the Senate subcommittee on the Border, while Lankford is the ranking minority members.  They have made several prior visits, and Sinema has been very vocal about the need for better border control.

 A few things that jumped out at me:

The composition of border crossers has changed dramatically with Spanish-speakers no longer in the majority.  More and more illegals are coming from Central and South Asia, Russia, Africa, and China.

Unlike with Mexico and some other Spanish speaking countries, where we have agreements allowing us to access criminal records, we have no way of knowing if these illegals from other regions are criminals.

The Mexican cartels control the flow of illegals, determining when and how many are coming on any given day.

Border Patrol personnel are bogged down processing asylum requests at Ports of Entry and unable to adequately police the rest of the border.

Only about 10% of asylum requests are legit.

Notwithstanding the above, once the asylum requests are made the applicants are released within the United States and it usually takes years before they have a hearing, which they often don't show up for.

Not stated directly by the senators, but evident to anyone knowledgeable, is the Biden administration's game playing with the process and with public reporting of illegal entry to the United States.  They know the public is unhappy with the collapse of border security so they want to appear to be doing something, but they also want to keep the flow of illegals coming.

I applaud the effort by both senators to come up with a bipartisan legislative proposal, but doubt they will be successful.  The dominant Progressive wing of the Democrats is opposed to anything that would stop the border flow (and they hate Sinema) and a number of Republicans are opposed to any compromise and would rather keep the border as an open political issue.

The bigger problem is that President Obama, and now President Biden, have sent the message the compromise is not possible legislatively and any Republican supporting a compromise would be a chump.

Compromise means both parties don't get everything they want.  Sometimes it means compromising in the middle, sometimes it means I get this provision and you get that provision.  Any Republican participation in a compromise will require increased border security and enforcement.

With his DACA Executive Order, President Obama demonstrated that, with the stroke of his pen, he could undo a legislative compromise and there was nothing his opponents could do about it.  And President Biden has demonstrated that with Democratic control of the federal bureaucracy, he can make any statutory language meaningless by manipulating the budget and enforcement process.

It's hard to see how any Republican legislator could support compromise legislation, no matter how good the wording is, because any Democratic administration will simply gut the enforcement provisions via the bureaucracy.

Tuesday, June 6, 2023

The Aftermath

 Ruins of the town of Monte Cassino, a result of massive Allied bombing during an attempt to dislodge German troops occupying the city, 1944.

Today is the 79th anniversary of D-Day.   There will be plenty of articles on that topic.  Almost forgotten is that on June 4, 1944 Allied forces liberated Rome, as part of the Italian campaign that began in September 1943 and ended on May 2, 1945 with the surrender of the remaining German army in northern Italy.

The Allies (American, British, Canadian, Polish, French, Brazilian and those from several other nations) suffered 60,000 to 70,000 killed in the course of the campaign, of whom half were Americans.

The photo above (from Life Magazine), taken in May 1944, shows the ruins of the town of Cassino, and above it, those of the Benedictine monastery of Monte Cassino.  The town and the hill on which the monastery were located had to be taken by the Allies because it controlled the only viable route north towards Rome.  In early November of 1943, Allies forces reached a point twenty miles south of the town and monastery.  It took over six months of gruesome fighting, crossing rivers and rocky open-faced mountains amid terrible weather and stubborn German resistance to cross those twenty miles; a distance that is now a leisurely half hour drive by car (which we did in 2006).  After failed assaults in January, February, and March the monastery was finally captured by Polish troops on May 18.

The town is now rebuilt as is the monastery.  The first monastery was constructed around 529.  Destroyed by the Lombards in 570 it was not rebuilt until 718.  The second monastery was destroyed by Moslem raiders in 883 and rebuilt in 949.  It was that 10th century structure that was bombed in 1944.

Sunday, May 28, 2023

Waddy's Wagon


I'd seen this photo before but until recently did not know the entire crew was killed in action.  This is Waddy's Wagon, a B-29 Superfortress based in Saipan.  The crew is imitating the caricature painted on the plane.  They flew their first mission over Tokyo in November 1944.  On January 9, 1945 Waddy's Wagon was shot down while attempting to escort another damaged B-29 to safety after a raid on the Nakajima aircraft factory.

The man in the lead is Captain Walter R "Waddy" Young from Oklahoma, an All-American college football player who also played in the National Football League.  He volunteered for the Army Air Corps in 1941 and was 28 when he died.

The other crew members are:

Jack Vetters, pilot, Texas

John Ellis, bombardier, Missouri

Paul Garrison, navigator, Pennsylvania

George Avon, radio operator, New York

Bernard Black, flight engineer, New York

Kenneth Mansie, flight technician, Maine

Lawrence Lee, gunner, North Dakota

Wilbur Chapman, gunner, Texas

Corbett Carnegie, gunner, New York 

Joseph Gatto, gunner, New York