The Magazine

The Incivility Epidemic

How the Supreme Court's defamation decisions coarsened our public life

Dec 7, 2009, Vol. 15, No. 12 • By ROBERT F. NAGEL
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In recent weeks charges of defamation have been flying thick and fast. Writing in the Wall Street Journal, Rush Limbaugh accused the Reverend Jesse Jackson, as well as CNN, MSNBC and various unidentified sportswriters, of attributing to him racist statements that he never made. Limbaugh traced these statements, including one supporting slavery and another praising the murderer of Martin Luther King Jr., to a Wikipedia post that was in turn based on a fabrication printed in a book that provided no source for the quotations. Limbaugh's article also mentioned the Reverend Al Sharpton, whom Limbaugh described as having played a leading role in two race riots in the 1990s, and Sharpton promptly threatened to sue Limbaugh for defamation.

The spectacle of these two famous and outspoken men complaining about damage to their reputations has its risible side, but their complaints are part of a more general pattern of charges and countercharges concerning irresponsibility in public debate. The House speaker, Nancy Pelosi, has voiced the fear that rhetoric criticizing President Obama is so overheated that it might lead to an assassination attempt. But Pelosi has used some overheated rhetoric herself--for instance, calling some of the protesters at last summer's town-hall meetings "un-American." Obama has accused the medical insurance industry of being "dishonest" in its opposition to his proposed reform legislation. The president himself was famously accused of lying about health care by Representative Joe Wilson, who was later admonished by the House of Representatives for having "degraded the proceedings" during a joint session of Congress.

Granted, there is something suspicious in sanctimonious complaints about irresponsible public debate when the complaints are voiced by those who engage in irresponsible public debate. Even assuming that these complaints involve large doses of posturing, though, it is also possible that powerful and prominent people sense that they are caught up in a political culture that is vicious. Indeed, the very fact that people are expected to accept calumny as an ordinary part of taking a leadership role in political life is itself a sign of something gone wrong. In any event, observers of the political scene are entitled to note with dismay the prevalence of distortions and insults and to wonder about the causes of degenerate public discourse.

The nasty character of modern political argumentation is commonly traced to a number of factors. For one thing, Americans are--and always have been--a contentious people. Today, however, this contentiousness is magnified enormously by new technologies. Many lament the anonymity of the blogosphere, as well as the unremitting hunger for angry confrontation that sustains interest during 24-hour news cycles. But technology is only part of the story. The nationalization of divisive issues, like abortion, has surely contributed to the current climate. So has the ideological polarization of the two political parties and the politicization of higher education. One cause that receives less attention than it deserves is the work of that paragon of thoughtful decorum, the Supreme Court.

The Court's role in coarsening the culture by protecting profanity and pornography does get some attention. But the role its defamation decisions have played in lowering the standards of political discourse is mostly ignored. Indeed, New York Times v. Sullivan, the watershed opinion that in 1964 began the Court's ambitious campaign to protect defamatory speech, has been the object of much adulation. Two highly respected free speech scholars, Harry Kalven Jr. and Alexander Meiklejohn, greeted Sullivan with the declaration that the decision was "an occasion for dancing in the streets." Anthony Lewis's well-received book on the case called it a "transforming judgment" that dispelled a threat to "the right of the press to report on tense social issues." Many of the criticisms that do exist accept the basic logic of the defamation decision and argue that the justices should have gone even further in protecting libel and slander.

The reasons so many are in favor of privileging defamatory speech have partly to do with the intellectual force of the classic arguments for an unfettered marketplace of ideas made by people like John Stuart Mill and Justice Oliver Wendell Holmes. Yet the free pass for Sullivan and subsequent defamation decisions is also partly traceable to intellectual fashion, an odd fact given the premium that Mill and Holmes put on the need to challenge orthodoxies of all kinds.