S1: From the historic campus of Hillsdale College in Hillsdale, Michigan,
S1: where the good, the true and the beautiful are taught,
S1: nurtured and honored. This is the radio free Hillsdale Hour,
S1: bringing the activity and education of the college to listeners
S1: across the country.
S2: We are living in a new age technologically, in which
S2: anybody can publish anything almost instantaneously, and we need to
S2: think through how to handle that, because you need legislation
S2: to protect reputation, you need libel law.
S3: This is your host, Scott Bertram. Welcome to the Radio
S3: Free Hillsdale Hour. Part of the Hillsdale College Podcast Network.
S3: That was Carson Holloway, author of the new book No
S3: Liberty to Libel The Constitutional Case Against New York Times
S3: v Sullivan. Yes, we talked in depth about libel law
S3: later on in today's program. First, we're joined by Doctor
S3: Ben Whalen. He's associate professor of English here at Hillsdale College.
S3: Also your teacher for the brand new Hillsdale College online course,
S3: The Odyssey. Find more hillsdale.edu/new course. Doctor Whalen, thanks for
S3: joining us.
S4: Oh, thanks so much for having me.
S3: Excited to talk today about the Odyssey. Every Hillsdale College
S3: student reads The Odyssey as part of the Great Books
S3: curriculum here. Why has Homer and this work remained at
S3: the foundation of a liberal arts education for now? Hundreds, actually,
S3: thousands of years.
S4: Uh, it's it's, it's really a sort of a funny
S4: thing that the oldest work of literature we have in
S4: Western culture is, is also, uh, so great. Um, it's,
S4: it's sort of a remarkable thing. It actually, um, it's
S4: well known that Homer, uh, probably didn't write the story
S4: down himself that this it emerges from an oral culture
S4: where bards are reciting and singing songs. And, uh, it's
S4: a testament to the excellence of the story, uh, that, uh,
S4: it's been preserved from Homer's time on. It was, in
S4: other words, it was immediately recognized as a truly great work. Uh,
S4: and people wanted to hear it and they wanted to
S4: hear Homer's version of it. And, uh, so it was
S4: preserved and then eventually set down in writing and has
S4: been passed on to us. It's a story that it
S4: obviously it part of its excellence is it just has
S4: so many great, uh, narrative moments. So of course, you
S4: have things like the Cyclops and the homecoming, the, the,
S4: the fight with the suitors, the Lotus eaters, these different goddesses, etc..
S4: But it's also excellent because it really does have, uh, philosophical, uh, reach.
S4: It's got, it gets after deeply, universally human things. And
S4: so it's, it's really excellent because it, it not only
S4: has those sort of gripping, uh, moments of, of, of
S4: a really thrilling story, but, but it, it really helps
S4: you understand what's, what's proper to a human life and
S4: in all sorts of ways. So it's, uh, it makes
S4: sense that even those earliest Greeks would retain and retell and,
S4: and finally write down Homer's story.
S3: So we've got this major new film adaptation of The Odyssey.
S3: It's one of the reasons we have the online course out.
S3: One of the reasons we have this conversation today. Why
S3: is this a good time to, to go back and
S3: maybe not just see the movie, but actually read Homer himself?
S4: Yeah. Well, I'm excited to see the movie, obviously. Christopher Nolan,
S4: great director, very interesting and thoughtful, uh, filmmaker, the, uh,
S4: the book itself though, and this, I love this about
S4: Hillsdale College that they, they wanted to produce a course
S4: on on the book itself, because we can't let or
S4: we shouldn't let even a great film, uh, obscure or
S4: or stand between us and the book. Uh, it is
S4: one of the things I love about the Odyssey in particular,
S4: both the Iliad and the Odyssey is that it's, uh,
S4: remarkably easy and accessible despite its riches. And so I'll
S4: tell students this, we'll dive in and we'll read a
S4: lot here. I teach it every year, uh, at Hillsdale. Uh, but,
S4: but that actually, as soon as you get into it,
S4: you're having fun. You're studying like very serious literature with
S4: real serious questions. But, but it's delightful. It's accessible. It's
S4: a joy to read. And so I'm happy Nolan has
S4: made the film, and I hope it just inspires more
S4: people to actually go and read the book, because the
S4: book also will be fun and delightful. It's not a
S4: labor to read. It's a joy.
S3: Talking with Doctor Ben Whalen. He's your teacher for the
S3: new Hillsdale College online course, The Odyssey. Find it@hillsdale.edu slash.
S3: New course NEWCOURSE for the Odyssey. Your lectures here in
S3: the course follow this journey all around. Finally, at the
S3: end back home. How does each stop along this journey
S3: reveal something new about Odysseus?
S4: Yeah. Uh, so, um, in, in terms of overall chronology,
S4: the Odyssey essentially starts, um, uh, we hear about it
S4: in the middle of the work after the fall of Troy.
S4: Odysseus has been at Troy, they've sacked the city, and
S4: Odysseus starts his journey home. And one of the really
S4: interesting things is that what you see is that Odysseus,
S4: when he leaves Troy and starts to head home, the
S4: very first thing they do is they land on the
S4: shores of another city of the Cicones, and they sack
S4: that city and they they haul off plunder. And so
S4: you see that this immediately post Troy version of Odysseus
S4: is not actually a man who is most profoundly driven
S4: by a desire for home, yet. And he's he's not
S4: really ready for the role of king and husband and father. Instead,
S4: he's more a marauder. He behaves more like a pirate than,
S4: than the king of a of an island or a
S4: husband or father. So the different stops over the course
S4: of the Odyssey, in fact, show a growth and an education,
S4: even for the old grizzled veteran. Odysseus needs to go
S4: through to learn that he really does belong back in Ithaca. And,
S4: and that that really is where his heart is. And
S4: he has to fight to get there. And he has
S4: to correct and change certain aspects of his character that
S4: were shaped by ten years at war. And so it's,
S4: it's a really wonderful thing to watch that. And it's, it's,
S4: it's painful in parts. And it's also illuminating. Eventually, Odysseus
S4: goes to the underworld at the very center of the book,
S4: we hear about this, his his journey to the land
S4: of the dead. And it's there that he meets his mother.
S4: And she has died from heartbreak, yearning for Odysseus to return.
S4: And you see, that's one of the moments where you
S4: see Odysseus learning, I really have to change what I'm
S4: what I'm doing, and I do. I need to go home.
S3: Throughout the lectures, throughout the course, you show that Odysseus
S3: isn't just fighting monsters, but there's also confrontations with various
S3: temptations along the way, too. Why are the internal battles
S3: that we learn about just as important as the external
S3: battles through the work?
S4: Yeah, I like when you say The Odyssey. I think
S4: people think of a Cyclops or maybe the suitors, and
S4: those are those are external trials, uh, man versus monster,
S4: man versus other men. But it is true. What what
S4: we see with Odysseus is that he's given multiple, in fact, uh,
S4: I sort of joke with my students. Multiple options of
S4: island women that he could stay with. But but actually
S4: what he does is he these are sort of temptations
S4: and they entail different things. So one of these one
S4: of these goddesses offers him immortality. It's a remarkable thing.
S4: And it only grows more profound as you read the
S4: work that Odysseus turns down the offer of immortality. He
S4: chooses his wife and his home and death, all of
S4: those things together. And not only death, but also Ithaca
S4: involves difficulty and suffering. He chooses all that together. Because
S4: as as Homer reveals to us, in fact, sort of
S4: a meaningful, noble human life, one in which a happiness
S4: can be true happiness. The deepest forms of happiness can
S4: be found also entails mortality and suffering and struggle. And
S4: that all this together makes up that which we find
S4: humanly meaningful.
S3: Doctor Ben Whalen is your teacher for the new Hillsdale
S3: Online course on the Odyssey. hillsdale.edu/new course. Uh, Odysseus is
S3: famous for his cleverness, but he also matures over the
S3: course of this story. How does Homer depict that growth
S3: for the reader? What lessons should we take from it?
S4: Yeah, one of the things I think that the work
S4: is particularly rich on is it's, um, the education of Odysseus,
S4: both in his need and desire to get home. He
S4: has to prioritize that, but also that there's a difficulty
S4: for men who become habituated to violence and force as
S4: the means of resolving problems that arise in life. And
S4: so in these ten years at Troy, Odysseus is he's
S4: a he's the he's described as the, the masterful Tactician. Um,
S4: he's he's he's brilliant. Uh, and he's thoughtful, but it's
S4: entirely in terms of the sort of exercise of force
S4: to get your way to conquer a city. And I
S4: think that one of the things that Homer shows us
S4: over the, over the course of the work is that
S4: the virtues of the warrior are not enough, uh, for
S4: the husband, father, uh, King, that the husband, father king
S4: does need to be able to exert force like Odysseus
S4: does have to actually kill these suitors when he gets home.
S4: But there's something more that's required for a a truly
S4: good and virtuous man. There are these other sort of
S4: domestic and more more intellectually, uh, or, um, peaceful if
S4: or if not peaceful, more sort of properly ordered ways
S4: in which a man has to direct his life. And
S4: we see Odysseus grow in that over the course of
S4: the over the course of the work. So that finally,
S4: when he does arrive home on Ithaca, for instance, uh,
S4: he he does not reveal himself, but instead, uh, thinks, okay,
S4: I can suffer this too, and I can. And he's
S4: very slow and very careful and thoughtful. And it's those
S4: it's being slow and careful and thoughtful that are actually
S4: some of these virtues most necessary for a good king,
S4: a good husband, a good father.
S3: Talking with Doctor Ben Whalen, associate professor of English at
S3: Hillsdale College, also your teacher for the new online course,
S3: The Odyssey at hillsdale.edu/course. If you're online a bit, there's
S3: a little bit of side conversation around the release of
S3: the film about the women in the Odyssey. Yeah. The
S3: course that your course highlights Penelope as much as Odysseus.
S3: Really what makes her one of the truly great characters
S3: in Western literature?
S4: Yeah, I, I have strong opinions about this, actually. If
S4: you get to a book 24 at the very end
S4: of the work. Odysseus has butchered all these guys. I'm
S4: going to plot spoiler here, but he 2500 years. That's right,
S4: that's right. He butchers all these suitors who were paying
S4: court to his his wife and. And book 24 opens
S4: with this scene where all of these suitors souls, the
S4: shades of the of the suitors go down to the underworld,
S4: and they're greeted by some of the great heroes from
S4: the Battle of Troy. And in this remarkable moment, Agamemnon
S4: says to these suitors when he hears how they came
S4: to die, he. He says the gods will lift up
S4: an immortal song in praise of the glorious Penelope. This
S4: song that will never die. And that's. That's actually really
S4: what the Odyssey is. It's. It's Homer's great song in
S4: praise of Penelope. Penelope is, uh, she's an awesome character.
S4: She's she's. I always stress this to my students. She
S4: is certainly beset by these different suitors. So she's sort
S4: of holding the household together and it's under assault. Um,
S4: but she's the opposite of a just a helpless damsel
S4: in distress. That's not Penelope. Instead, she's resourceful, she's cunning. She, uh,
S4: she tricks the suitors. She she she really holds the
S4: whole kingdom together, uh, through her wit and intelligence. Until
S4: Odysseus returns. And it's been 20 years, for heaven's sakes. So,
S4: I mean, it's that's no minor undertaking. She's she's a
S4: great character. And really, uh. Homer. Homer's work points towards her.
S4: Homer does not neglect her significance or. Homer's work does
S4: not neglect the significance of women. Uh, really, the poem
S4: is much more ambivalent about Odysseus character than Penelope's. She's
S4: the one who has the sort of virtue and consistency
S4: and excellence that you. You can't help but admire and,
S4: and think about, uh, throughout the whole work.
S3: Loyalty is one of the defining virtues in The Odyssey.
S3: And of course, that ties into Penelope as well. Why
S3: does Homer place so much emphasis on faithfulness inside the Odyssey?
S4: Yeah, I that's a that's a great question. At one
S4: point in Odysseus journeys, he comes to the land of
S4: the lotus eaters and, uh, the land of the lotus eaters. It's,
S4: it's this sort of strange, drug like substance that makes
S4: people forget their home and where they're from and who they,
S4: they have no desire for anything but to just sort
S4: of lie around eating Lotus. And, uh, that's sort of the, uh,
S4: in a certain respect, the antithesis of loyalty. So loyalty entirely.
S4: It consists of remembering who you are, who you have
S4: debts towards, who's been your benefactor, who you love. And,
S4: and you stay true to that. And so, yes, throughout
S4: the Odyssey, there's this interesting tension Between, say, the call
S4: of the lotus Eaters, where you. You could just lose
S4: yourself in momentary pleasure and in in the in the
S4: day to day and forget and and the man. And
S4: that's that's in contrast to the man of loyalty or
S4: the woman of loyalty who remembers and recalls and lives
S4: according to that code. So Penelope is a great figure
S4: for loyalty. There's another wonderful figure, Eumaeus, the swineherd who
S4: has taken care of Odysseus, flocks on Ithaca, and he's
S4: he's described by Homer as the soul of loyalty because
S4: he remembers. He remembers his master, he loves him and
S4: he serves him. And it's it's it's it becomes very
S4: obvious to us that that sort of memory and loyalty is,
S4: is a virtue of, of great significance compared to just
S4: momentary pleasure and forgetfulness.
S3: Readers who are experiencing the Odyssey for the first time
S3: might be familiar already with some pieces Cyclops, the Trojan horse.
S3: There's a lot more to it than that. What are
S3: some of the overlooked moments that students tend to appreciate
S3: after reading The Odyssey?
S4: Oh, that's a great. There are so many. I'll share
S4: one that's just a personal favorite. When Odysseus finally escapes
S4: from this island where he's been held captive for 7
S4: or 8 years, he. He's sailed on a raft, and
S4: then he gets shipwrecked. And so he lands on this island,
S4: the island of the Phaeacians, where Nausicaa is the Princess.
S4: He lands there with with absolutely nothing, not even a
S4: shred of clothing. He is. He is naked and alone
S4: has nothing. And so he. He climbs ashore after this
S4: great storm, and he sleeps under this bush. And so
S4: he's covered in leaves and twigs, and he's. He's filthy.
S4: And then the next morning he wakes up and he
S4: hears these young women playing with this ball. They've done.
S4: They've been washing some clothes in this stream, and they've
S4: been throwing a ball back and forth. And Odysseus hears
S4: them and he comes out of the bushes to to
S4: see what they are and, and where he is. And
S4: Homer has this wonderful simile where he likens Odysseus to
S4: suddenly this this lion about to come and prey on this,
S4: this well-defended homestead with these rich flocks. And I like
S4: to pause there with my students and encourage them to
S4: think about like, what does it mean that Odysseus naked
S4: without a weapon, without a tool, in a strange land,
S4: he's got nothing. And yet in this simile, Homer likens
S4: him to a predator, you know, rather than rather than
S4: the suppliant, the beggar. He's that's how um, how dangerous
S4: he is, how forceful, how resourceful Odysseus is. So you
S4: get these wonderful little moments where this is another thing
S4: that Homer is so wonderful in is his similes. So
S4: you have on the level of the story, just this
S4: action going along. But then Homer will liken it to
S4: something and that shows you a whole different angle, a
S4: whole different way of, of seeing the character or the situation.
S3: Is there a particular one of these lectures inside the
S3: new online course, The Odyssey that you're excited for students
S3: to experience?
S4: Uh, that's yeah, the, I mean, I'm excited for students
S4: to think about what Odysseus goes through when he goes
S4: to the land of the dead. Uh, it's actually a
S4: katabasis is the phrase or the term that refers to
S4: the a great hero's journey to and return from the
S4: land of the dead. It's actually a sort of in
S4: a certain sense, and I'm not trying to Christianize this,
S4: but there's, there's a way in which, in fact, early
S4: Christians would even read these stories and see that there's
S4: a sort of resurrection motif, or the greatest of heroes,
S4: your Hercules or your Odysseus. They. They travel to the
S4: land of the dead, and then they return with with
S4: some sort of profoundly deepened knowledge or understanding or it's
S4: the mark of the greatest heroes. And so what's interesting though,
S4: is when Hercules does that, it's. It's simply because one
S4: of his feats and he's he's the archetypal hero. When
S4: Odysseus does it, though, it's about reordering the very desires
S4: of the human heart. And so it's, it's intellectual has
S4: to do with one's loves and with one's self understanding.
S4: And so I'm excited for students to, to get to that,
S4: to see Odysseus confront Achilles and Agamemnon in the land
S4: of the dead, to meet his mother, and then and
S4: then to realize really in part through that where he
S4: belongs and how he should conduct his life.
S3: Doctor Ben Whalen is associate professor of English here at
S3: Hillsdale College, and he's your teacher for the new Hillsdale
S3: College online course. The Odyssey hillsdale.edu/course. NEWCOURSE, the Odyssey. Available now.
S3: Doctor Whalen, thanks so much for joining us here on
S3: the Radio Free Hillsdale Hour.
S4: Thank you very much, Scott.
S3: Up next Carson Holloway is with us. We'll talk about
S3: his new book, No Liberty to Libel. I'm Scott Bertram.
S3: This is the radio free Hillsdale Hour. Welcome back to
S3: the Radio free Hillsdale Hour. I'm Scott Bertram. Be sure
S3: to find more great Hillsdale College audio on Hillsdale College
S3: Podcast Network. You can find it all@podcast.hillsdale.edu. Older editions of
S3: this show, plus more from The Larry Arnn Show, Imprimis
S3: and the Hillsdale College Online Courses podcast, wherever you get
S3: your audio. We're joined by Carson Holloway. He's department chair
S3: and professor of political science at the University of Nebraska
S3: Omaha and a Washington fellow in the Claremont Institute Center
S3: for the American Way of Life. His brand new book
S3: is No Liberty to Libel The Constitutional Case Against New
S3: York Times v Sullivan. Carson, thanks so much for joining us.
S2: Thank you for having me, Scott. I really appreciate it.
S3: I have to say, I enjoyed the the typeface on
S3: the book, which makes it look like it's New York
S3: Times type typeface. I'm sure that was somewhat intentional.
S2: Yes, yes. I think they did a great job encounter
S2: books did an excellent job with the look of the book.
S3: Very good. All right. So look, there's a there's a
S3: subset of Americans who likely have no idea what we're
S3: about to talk about, which is libel law. And New
S3: York Times v Sullivan. Take us inside. Why New York
S3: Times v Sullivan matters. why? It's an important First Amendment case.
S3: And then after that, we'll get into why you think
S3: it's wrong.
S2: Okay, that sounds great. New York Times versus Sullivan is
S2: considered by practically everybody to be one of the great
S2: landmark First Amendment freedom of the press rulings of modern times.
S2: It was decided by the Supreme Court in 1964, the
S2: Warren Court Justice William Brennan, one of the very consequential justices,
S2: a liberal justice, wrote the opinion for the court in
S2: that case. And the opinions important or the ruling is
S2: important because it changed the libel standards that the country
S2: has for public officials. And then later, the court extended
S2: the new standards to public figures as well as public officials. Libel,
S2: of course, is when people sue for defamation for the
S2: publication of false information that damages their character. And the
S2: court decided in New York Times versus Sullivan that libel
S2: cases involving public officials. And then, as I say later on,
S2: public figures raise a First Amendment problem. They. They create
S2: a problem in relation to the freedom of the press
S2: that the First Amendment is supposed to protect. So seeing
S2: that problem in the court's mind, the justice's mind. In 1964,
S2: they came up with a solution for that problem. And
S2: that solution is called the actual malice test or the
S2: actual malice standard. What the court said in the Sullivan
S2: opinion was that if you are a public official and
S2: you sue to protect your reputation in a libel suit,
S2: you will have to show not only that the publication
S2: about you was false and defamatory or injurious to your reputation.
S2: You'll also. That's what ordinary people would have to show, right?
S2: You're going to have to show something else in addition
S2: to that, which is that the publication was made with
S2: actual malice. And that's a technical term that the court
S2: devised to mean the following. Either the publisher knew that
S2: it was false, or they published with reckless disregard for
S2: the truth or falsity of the report. So I would
S2: say the significance of New York Times versus Sullivan is
S2: that it sets up under the allegation that the First
S2: Amendment requires this. It sets up a two tiered libel
S2: system in which ordinary people basically have to show that
S2: they were defamed by a false report, and public officials
S2: have to show that, plus this actual malice. Right. And
S2: one other thing I'd like to say about that, just
S2: by way of clarifying what it means in practice, the
S2: court was very clear in subsequent cases in which it
S2: elaborated on the doctrine that actual malice is something far
S2: more extreme and far worse than ordinary negligence. So basically
S2: what it means is it gives the press running room
S2: to be negligent with the reputations of public officials and
S2: public figures, because they're going to have to show something
S2: worse than negligence. They'll have to show, again, actual malice.
S2: And in practice, it turns out to be very hard
S2: to meet that standard, which is why there are not
S2: very many successful libel suits brought by public figures in
S2: the kind of Sullivan era.
S3: Come back to that question about reputation a little bit
S3: later on in the conversation. Americans today, I would guess
S3: a good number of them assume that freedom of the
S3: press means that there is broad protection, even for false
S3: statements about public officials. Is that how the founders understood
S3: freedom of the press?
S2: No. I think we are laboring under a delusion that's
S2: been created by the Supreme Court. The founders, of course,
S2: did value freedom of the press very highly, including a
S2: kind of wide ranging and brawling culture in which you're
S2: going to be criticized if you're a public official, for sure.
S2: But they did not think about it in the same
S2: way that the court did in New York Times versus Sullivan.
S2: My book is an originalist argument, so I'm basically saying
S2: the courts departed from the original understanding of the freedom
S2: of the press that's embodied in the First Amendment and
S2: in the broader public and legal culture of the founding.
S2: You know, there were protections for freedom of the press
S2: in many of the state constitutions. It's not just a
S2: federal issue. So let me go back a moment to
S2: what I said about the Sullivan court. When I said
S2: they saw a problem, they saw that a libel suit
S2: involving a public official is impinging on freedom of the press. See,
S2: I think that's the first error. The founders did not
S2: look at it that way. Their view was simpler. It
S2: was derived from what they learned from Blackstone's commentaries on
S2: the laws of England. And it's based upon the kind
S2: of classical moral distinction between liberty and license or licentiousness.
S2: I think the founders believed that libel, in the sense
S2: of defamatory, false publication about somebody, is simply outside the
S2: scope of the freedom of the press. It's something that's
S2: not protected. And in fact, there's a long tradition in
S2: the Supreme Court and American courts prior to New York
S2: Times versus Sullivan, in which the justices or judges would say,
S2: kind of transmitting that tradition, that libel is one of
S2: the forms of unprotected speech, along with obscenity and fighting
S2: words and things like that. It's not the kind of
S2: expression that was intended to be protected by the freedom
S2: of the press. It's an abuse of the freedom of
S2: the press, or it's an act of licentiousness that is
S2: outside the lines, so to speak. So the founders would
S2: not have thought that this kind of suit raised the
S2: kind of problem that the New York Times court thought
S2: that it did. And the other part of my argument
S2: would be that there's nothing like the idea of actual
S2: malice in the thought of the founders not seeing this problem.
S2: They don't devise the solution. There is some ways in
S2: which they would say that the standards are different in
S2: a libel case for public officials versus ordinary people. And
S2: I can talk more about that if you want me
S2: to explain that. But suffice it to say, in relation
S2: to what the court did in the Sullivan decision, there's
S2: nothing like the actual malice doctrine at the time of
S2: the founding. They don't think that a certain class of
S2: people have to prove something extra in order to prevail
S2: in a libel suit.
S3: Let's talk about some guys with Carson Holloway, the author
S3: of the new book No Liberty to Libel, James Wilson,
S3: James Kent, Joseph Story, these legal commenters of the early Republic.
S3: Did any of these thinkers from the early Republic anticipate
S3: this more modern argument that public figures, or just some figures,
S3: should receive less protection than from libel than private citizens?
S2: Right. Yeah, they don't anticipate that. And let me explain
S2: using them what I was hinting at just a moment ago.
S2: They do. They're building on Blackstone, who I mentioned before.
S2: These are Americans of the early Republic who are great
S2: jurists and great legal commentators wrote big, massive, learned treatises
S2: on American law. They do anticipate the idea that the
S2: standards would be different for a public official versus a
S2: private person. In the case of the truth defense for libel. Now,
S2: let me explain the background to that just a little bit. Blackstone,
S2: the great English legal commentator, made clear that according to
S2: the common law, a criminal libel could even be a
S2: true statement because, he said, the libel, the criminal libel
S2: laws of the English common law are looking to prevent
S2: breaches of the peace more than they are looking to
S2: protect reputation. And since a humiliating publication about somebody that
S2: happens to be true might provoke them to violence, you
S2: could be punished for a true publication under the English
S2: common law. The founders liberalized that and come up with
S2: a more permissive and they thought, a more reasonable standard,
S2: which was that there ought to be a truth defense
S2: in a criminal libel proceeding. Alexander Hamilton, in the famous case,
S2: people versus Croswell, New York, case from around 18031804. Maybe.
S2: Hamilton said the truth defense should be understood as. You
S2: can defend yourself against a charge of libel. If what
S2: you published was true and published with good motives and
S2: for justifiable ends. Now that tells you that they understood
S2: the truth defence as being qualified. If you publish something
S2: true about somebody out of pure desire just to hurt
S2: them or to humiliate them in front of the public,
S2: you might still be, you know, liable for libel, so
S2: to speak. So where they're anticipating a different standard for
S2: public and private people is that they basically all say,
S2: especially Kent, that, uh, there should be much more running
S2: room for a truth defense if you're dealing with a
S2: public official. Right. Because the people have a right and
S2: a need to know about that person's character. So if
S2: what's published is true and actually relevant to your reputation,
S2: we're going to give you more room to make that defense.
S2: But they all talk as if the publication is false
S2: and defamatory. Then if you're the defendant, you lose already. Right.
S2: They're all pretty close to what you might call strict
S2: liability for false defamatory statements. So there's nothing in them
S2: to anticipate what the Sullivan Court is doing, which is
S2: creating a kind of protection even for publications that are
S2: admittedly false and that are damaging to reputation.
S3: That's Carson Holloway. His book is No Liberty to Libel.
S3: We'll continue with him in just a moment. First, I
S3: want to make sure you are aware there's a brand
S3: new episode of The Larry Arnn Show available now, talking
S3: about leadership, talking about being a Navy Seal. Leif Babin
S3: is Doctor Arne's guest. He's a former U.S. Navy Seal officer,
S3: co-author of The New York Times best seller Extreme Ownership
S3: How U.S. Navy Seals Lead and Win, and co-founder of
S3: Echelon Front. They'll talk about the lessons that he learned
S3: about leadership from his time in the Middle East, what
S3: real ownership, humility and command under pressure looks like from
S3: someone who's learned the lessons the hard way and the
S3: challenges and threats America's military faces. Today, Doctor Arne asks
S3: the questions Leif Babin provides the answers. The brand new
S3: episode of The Larry Arnn Show is available now. Find
S3: it at YouTube for the full video version. You can
S3: also find the audio version wherever you get your audio,
S3: including podcasts.hillsdale.edu. Check out the brand new Larry Arnn show.
S3: We continue with Carson Holloway, his new book, No Liberty
S3: to Libel The Constitutional Case Against New York Times v
S3: Sullivan Libel Law here in the U.S., Carson chapter four
S3: begins this look at the case itself New York Times
S3: v Sullivan and the Brennan majority opinion, which relied on
S3: discussions around the Sedition Act of 1798. And you argue
S3: that this use is I think it's opportunistic and unconvincing,
S3: meaning that it's it's it's sort of using originalist language
S3: when the opinion of Brennan is not originalist in any
S3: real way. Is that is that about right?
S2: That's right. Like I said, I'm making an originalist critique
S2: of Brennan's opinion, especially what the court did in the
S2: Sullivan case. He does have a kind of originalist window dressing,
S2: I would say, in his appeal to the Sedition Act controversy,
S2: which you just mentioned, and which takes up a few
S2: paragraphs in the opinion. And if you want to argue
S2: for a very permissive or libertarian approach to freedom of
S2: the press and freedom of speech, you can get some
S2: mileage out of great American founders like Thomas Jefferson and
S2: James Madison, who were opponents of the Sedition Act of 1798.
S2: But I think that that's not a convincing argument. So
S2: let me try to explain that here. Basically, what Brennan
S2: does is to show that the Sedition Act included a
S2: truth defense along the lines of what we were talking
S2: about before. Nevertheless, it was assailed as unconstitutional by great
S2: men like Madison and Jefferson. So Brennan concludes from that.
S2: And also we should say that the Sedition Act was
S2: kind of, as Brennan points out, repudiated by the country. Right.
S2: The Jeffersonians won overwhelmingly in 1800. And and, uh, the
S2: Federalists took a real beating, and the country seemed to
S2: come around to the view that the Sedition Act was
S2: not constitutional. So the lesson that Brennan wants to derive
S2: from this is that there is evidence at the time
S2: of the founding that even false statements that are defamatory
S2: are protected by the First Amendment. I find this unconvincing because, frankly,
S2: Madison and Jefferson are arguing in the Sedition Act controversy
S2: that Congress has no power at all over the press
S2: because there's no enumerated power in the first place. And
S2: then they think that's confirmed by the First Amendment's protection
S2: of freedom of the press. When people would say to them,
S2: in the context of that controversy, wouldn't it be terrible
S2: if public men had no way to vindicate their reputation?
S2: Their response is, well, they can sue in the States,
S2: they can sue in state court where they can bring
S2: a libel suit. So I think that the the use
S2: of the Sedition Act controversy by the Brennan opinion in
S2: the Sullivan case is opportunistic and unconvincing, because it's really
S2: proving something that the Sullivan Court doesn't even affirm, namely,
S2: that there is no power at all in the federal
S2: government over the press. That's not really a position that
S2: many people would defend these days. And in any case,
S2: it's not a position that has to do with the
S2: meaning of the constitutional concept of freedom of the press.
S3: Mhm.
S2: You really can't find Madison or Jefferson saying that public
S2: officials would have to demonstrate actual malice, say, to approve,
S2: to prove their case in a in a state libel proceeding.
S2: And in fact, they try to reassure people in various places,
S2: including in one of Jefferson's inaugural addresses, that it's perfectly
S2: legitimate for public officials to have recourse to libel law,
S2: to vindicate their reputations in that inaugural address, Jefferson kind
S2: of makes a show of saying, you know, I didn't
S2: sue anybody because I've got better things to do. The
S2: administration has a lot of work to do. But he
S2: says that's not to denigrate the purpose of libel law implicitly,
S2: even for public officials.
S3: Carson Holloway with his book No Liberty to Libel. There's
S3: a chapter in which you go over a number of cases,
S3: some including Teddy Roosevelt. Um, these cases through the through
S3: the 1900s, including were courts generally capable of protecting vigorous
S3: public debate before this actual malice standard, before New York
S3: Times v Sullivan.
S2: I think so. Um, now, this is one of the
S2: big arguments about what would be the consequences of going
S2: back on New York Times versus Sullivan. A lot of
S2: the arguments that I find that are made are consequentialist
S2: in their character. I think it's very hard to be
S2: an originalist and think that the Sullivan opinion is correct.
S2: But a lot of people have worries about abuse of
S2: libel law to silence people and stop them from criticising
S2: the government or criticising public officials. That's understandable. I mean,
S2: I think as someone who's fairly conversant with American political history,
S2: that our our history shows that our public discourse has
S2: been pretty candid and powerful and even brawling a lot
S2: of the time, even in the old days when when
S2: a public official or a public figure could bring a
S2: libel suit under the old standards. Interesting remark on this,
S2: by the way, is by one of the great jurists
S2: of the period. You were mentioning, William Howard Taft, who
S2: of course, later went on to be president of the
S2: United States, and Chief Justice. I'm talking about a period
S2: in his life where he was a federal judge, and
S2: he heard a libel case involving a public figure, we
S2: might say, a candidate for the House of Representatives. And, um,
S2: some of these arguments that the court relied on in
S2: New York Times versus Sullivan were brought up, or versions
S2: of them were brought up by the newspaper trying to
S2: defend itself. And basically Taft. This is in the late
S2: 19th century, batted those away and said, well, the standard
S2: really is that if, uh, if it's false and defamatory,
S2: you're going to have to answer for it. And then
S2: he talked about this concern that, uh, to use a
S2: term that the, uh, gets used much later on, that
S2: there would be a chilling effect on properly protected speech
S2: by this danger of libel. Taft just says, and it's
S2: based on his observation at the time, he goes, nobody
S2: who knows the politics of Great Britain or the United
S2: States would think that the press is unduly hindered in
S2: its commentary on what public officials are doing. So, I mean,
S2: I take him as a serious observer of the scene.
S2: And yeah, I think that, uh, you did have a
S2: robust public discourse, even though there was a danger of
S2: libel suits. One other thing to remember on that, by
S2: the way, is that it ought to be possible, ordinarily,
S2: to have a very forceful discourse about public issues without
S2: defaming somebody's character. Right. I mean, sometimes it's necessary to
S2: do if someone really is guilty of wrongdoing and therefore
S2: disqualifying disqualifies themselves for public office. But I think one
S2: of the problems with the culture that's created by the
S2: Sullivan Standard is that it permits so much running room
S2: for attacks on reputation that it distracts us from what
S2: we really ought to be concerned with, which is debates
S2: about public issues and what policies to pursue rather than,
S2: you know, often unconfirmed reports about alleged wrongdoing by public officials.
S3: Carson, a couple of things I picked up while reading
S3: No Liberty to Libel. There seems to be this underlying
S3: argument at times that that reversing New York Times v
S3: Sullivan is also additionally a benefit, a way to fix
S3: our media. Right. There's so many issues people don't trust
S3: the media. Overturning New York Times v Sullivan. Does that
S3: have the ancillary benefit of perhaps, uh, Improving media's standing
S3: among Americans.
S2: I hope so. Um, again, the core of my argument
S2: is kind of a principled, legalistic or constitutionalist originalist argument.
S2: I think one of the key benefits, therefore, of reversing
S2: New York Times versus Sullivan would be simply returning to
S2: the country to the correct understanding of the First Amendment.
S2: Another benefit would be creating better protection for reputation, which
S2: the founders did think is a very important right. Just
S2: as important as property or personal security. It's a natural right,
S2: I think, in their thinking. But there is this other problem,
S2: which is, as I mentioned in the book, trust in
S2: the media is at a very low point. I don't
S2: know if it's at an all time low, but it's
S2: not great. The publisher of The New York Times gave
S2: a speech about this a couple of weeks ago, and
S2: he even admitted this and kind of blamed it on
S2: President Trump for his attacks on the media. But I
S2: think it's more plausible that the media's reputation is at
S2: a low point because they report a lot of hysterical
S2: charges that are designed to damage the reputations of certain
S2: public officials that don't always pan out and don't turn
S2: out to be true. So they generally Revere the ruling
S2: because they think it's essential to their work. But I
S2: would counsel them to reflect on the fact that the
S2: way they're doing their work undermines the public's confidence in them.
S2: And so it might be better if there were a
S2: legal standard that were more strict to hold them, to
S2: be more careful about the reputations of the people on
S2: whom they're reporting more careful of the truth generally. I mean,
S2: I would say one more thing about that, though, since
S2: I mentioned the expression truth, even if you were to
S2: reverse New York Times versus Sullivan, there would still be
S2: a lot of room for media to make mistakes and
S2: even to publish things that turn out to be not true,
S2: because libel is not an action against any untrue statement.
S2: It's an action against one that's damaging to an individual's reputation.
S2: So even if you had the older standards, there could
S2: still be a lot of fake news. But I think
S2: having the older standards would nevertheless encourage a greater respect
S2: for truth in relation to the reputations of leading public
S2: figures and public officials, which would help our public discourse.
S2: And this is, by the way, the way a lot
S2: of the early jurists talked about it. And I go
S2: over this in the book, you'll find the early Republic
S2: judges saying things like, well, the public has an interest
S2: in knowing only the truth about the people they entrust
S2: with public authority. So they, you know, they think that
S2: the standard is helpful to keeping the public discourse the
S2: way it should be.
S3: Carson, you write in no liberty to libel that reputation
S3: is a right as precious as any other. The public
S3: has a vital interest in receiving true info about public figures.
S3: I know it's an originalist argument, but in this social
S3: media age, when false claims can can rattle around all
S3: that more quickly, Does the argument against Sullivan then become
S3: even stronger when it comes to reputation?
S2: Yeah, I think so. Um, we are living in a
S2: new age technologically, in which anybody can publish anything almost instantaneously. Uh,
S2: and we need to think through how to handle that.
S2: And even correcting our constitutional interpretation won't solve all of
S2: our problems because you need legislation, uh, to protect reputation,
S2: you need libel law. And it may be that things
S2: need to be treated differently depending upon how they're published
S2: or what kind of platform is used. But it's an
S2: old principle, I think, of defamation that, you know, slander
S2: is spoken, defamation libel is published, defamation. And the traditional
S2: approach was to treat slander as less serious because less damaging.
S2: If you publish something, you're basically telling it to the
S2: whole world in principle. But if you simply say something,
S2: the reach of that may not be as great. So
S2: the sense was that the threat to reputation and the
S2: damage is worse in a libel case. But now we
S2: live in a situation in which practically anybody can publish
S2: their thoughts immediately and kind of individualistically through these social
S2: media platforms. So there's a lot of there's just a
S2: lot more publication going on, and it might require some
S2: thinking that I admit I haven't done yet to figure
S2: out how to regulate those kinds of things. Um, and
S2: maybe treat them differently from what other like more formalized
S2: publication is doing. But the underlying principle we would get
S2: from the founders would certainly be that there has to
S2: be accountability for people's right to publish and to speak,
S2: because you can't use those precious rights in such a
S2: way as to damage the rights of other people, namely,
S2: their right to reputation.
S3: Carson Holloway is a department chair and professor of political
S3: science at the University of Nebraska, Omaha. In a Washington
S3: fellow in the Claremont Institute's Center for the American Way
S3: of Life. His brand new book is No Liberty to
S3: Libel The Constitutional Case against New York Times v Sullivan. Carson,
S3: thanks so much for joining us here on the Radio
S3: Free Hillsdale Hour.
S2: Thank you for having me, I appreciate it.
S3: That will wrap up this edition of the Radio Free
S3: Hillsdale Hour. Our thanks to Doctor Ben Whalen from here
S3: at Hillsdale College, your teacher for the new online course,
S3: The Odyssey. Find it now at hillsdale.edu/course. hillsdale.edu/course. And Carson Holloway,
S3: his book is No Liberty to Libel. Remember, you can
S3: hear new episodes every week on this station. You also
S3: can find extended versions of some of our interviews, or
S3: listen anytime to the podcast. Find it@podcast.hillsdale.edu or wherever you
S3: get your audio. Until next week, I'm Scott Bertram, and
S3: this has been the radio free Hillsdale Hour.