On: Press freedom advocates alarmed by $300,000 defamation verdict against...

2 September

A judge sits in judgment on a newspaper, loses her temper in its columns, sues it, and wins - before a jury in her own jurisdiction, with her own colleagues’ court hovering over the proceedings. The strongest case for the verdict writes itself, so let me write it: actual malice is a demanding standard, juries are entitled to find that a publication knowingly printed falsity or acted with reckless disregard, and editors who sharpen an editorial past the facts have no business hiding behind the First Amendment when the sharpening cuts. Fine. If the Advocate fabricated quotations or manufactured a quarrel, pay up and be damned.

But that is not what happened, if the reporting is to be believed - and here one must ask the question the verdict conveniently avoids. An editorial, signed opinion, argument on the public record about a public official’s conduct, has been converted into a six-figure penalty. The chilling effect is not a metaphor; it is arithmetic. Every newsroom accountant in America just did the sum: the cost of a hard editorial versus the cost of a $300,000 lesson. The soft story will run. The pointed one will die in committee.

Notice the elegantly circular arrangement: the judiciary adjudicates a dispute about criticism of the judiciary, in which the complainant is a sitting member of the court whose precedent governs the case. Sullivan was decided to protect exactly this kind of writing - the rough-and-tumble, the editorial overreach that stops short of known lies. Strip it away and you do not get more truth. You get quieter newspapers, and quieter newspapers suit the powerful very well indeed.

The defence of an unpleasant press is the defence of the only press possible. Silence is always available to the cowed.

The verdict has been rendered. It has not been justified.