I Really Need To Read More Widely

 I had no idea NYT v. Sullivan was a libel suit brought against the NYT and four black preachers in defense of white supremacy. Or that there is an effort (nascent, but wait for Dobbs to open the conceptual floodgates) to get Sullivan reversed. 

Stick with me.

Per this law review article, well....I'll just quote it:

Montgomery Commissioner L.B. Sullivan’s libel suit against the New York Times and four African-American preachers was just one of many instances of white Southerners using ostensibly race-neutral laws to counter the growing strength of the black freedom struggle. By 1960, when Sullivan filed his suit, this basic tactic—the race-conscious deployment of race-neutral law—was rapidly replacing explicitly racially discriminatory laws as the legal weapon of choice for defenders of white supremacy. I examine why libel law and other race-neutral laws became such critical resources for civil rights opponents, and I assess their impact. For the Warren Court, these legalistic tactics presented a challenge. The unanimous Sullivan ruling notwithstanding, the Court regularly divided when given an opportunity to assess the use of race-neutral laws to counter the Civil Rights Movement. For defenders of segregation, the legal counteroffensive had benefits as a tool of movement mobilization. For civil rights activists, the legal attack made its mark, as it forced them to divert resources into defensive litigation battles. In the end, however, these tactics had only limited success in their primary goal of disarming the Civil Rights Movement.

Libel suits, IOW, were a tool of segregationists:

One of the most striking aspects of the white Southern resistance to the Civil Rights Movement was the substantial faith its leaders had in the law. In the 1950s and 1960s, when defenders of racial segregation saw their way of life being challenged by the growing strength of the black freedom struggle, they regularly turned to lawyers and courts to fight off the threat of change. To be sure, the attack on the Civil Rights Movement contained a good deal of lawlessness—the intimidation, the beatings, even the murders of those who dared to challenge the norms and practices of white supremacy.1 Horrific acts of savagery never left the scene. But the South’s political leaders recognized extralegal suppression of civil rights activism as a major liability in their efforts to turn back the Civil Rights Movement, threatening as they did to turn public opinion against the segregationist cause and justifying further federal intervention. Segregationist leaders increasingly urged the use of formal processes of the law as an alternative to brutality and lawlessness.

Law, of course, has always played a role in the maintenance of white supremacy in the United States. Yet the kinds of laws that whites relied upon to serve this end shifted over the course of the Civil Rights Movement. For much of our nation’s history, the primary legal tools for protecting racial hierarchy were the bluntest and harshest ones: the laws of slavery, the southern Black Codes of early Reconstruction, and the segregation and disfranchisement laws of the Jim Crow era. And in the 1940s and 1950s, when faced with the rising threat of civil rights reform, segregationists relied primarily on explicit, direct legal defenses of Jim Crow. They waged a massive resistance campaign denouncing and defying Brown and proclaiming the need for race-conscious policy.

By the late 1950s and early 1960s, however, the tactic of defending legalized segregation on its own terms had largely run its course. Legally mandating racial segregation and other forms of overt racial discrimination was rapidly becoming a lost cause. The Supreme Court expanded its Brown ruling’s condemnation of separate-but-equal policy beyond the schools into all realms of state activity. In Congress, defenders of racial segregation were a diminishing minority. And, in the eyes of most Americans, racial discrimination as a formal state policy was no longer tolerable. For those dedicated to blocking or limiting the impact of the Civil Rights Movement, a new approach was needed.

Unlike the legal battles segregationists waged in the 1940s and 1950s, this new legal attack on the Civil Rights Movement relied on laws that said nothing about race. These were laws regulating disorderly conduct, trespass, disturbing the peace, and defamation. Even tax law became a weapon against the Civil Rights Movement. As the Movement gained momentum, segregationists used these and other race-neutral laws to target civil rights activists and their allies. The race-conscious use of race-neutral law became Jim Crow’s front line of defense.

I quote that extensively because it sets the background for Sullivan as a segrgationist case; and it outlines what we now call Critical Race Theory (and as it was probably labeled in 2014, before it became a topic of popular discussion).  CRT not only in the laws explicitly meant to enforce segregation, but in the creative use of laws to further segregation.  Even today no one speaks openly of segregation or discrimination based on race; but it is done subtly.  Well, they think it's subtle.  Sen. Rick Scott is about as subtle as a brick thrown through a window. But he might as well be a Southern pol from the '50's.

But the South’s political leaders recognized extralegal suppression of civil rights activism as a major liability in their efforts to turn back the Civil Rights Movement, threatening as they did to turn public opinion against the segregationist cause and justifying further federal intervention. Segregationist leaders increasingly urged the use of formal processes of the law as an alternative to brutality and lawlessness.

These few words make me realize we need a new civil rights movement, a Black Lives Matter movement, because Mr. Dooley was right, the Courts do follow the election returns.  Trump is out but Trumpism lingers, and it's not new and it's not unique.  It is much more deeply American than the goals of Dr. King or BLM. 

This fight is not new; it is, in fact, a very old fight:

Second, I examine the doctrinal challenges the Warren Court faced when called upon to assess the constitutionality of southern efforts to undermine the Civil Rights Movement through the use of race-neutral laws. The unanimous Sullivan ruling was something of an aberration. As a general matter, the Warren Court was deeply divided on the legal issues raised by the segregationist use of race-neutral laws to counter the Civil Rights Movement.

It's a fight that comes down to definitions:  what is "racist," and what is not?  And again, looking for the Court for salvation is looking to a false savior, and not just because the current composition of the Court makes it the "anti-Warren court."

The failure of the segregationist legal attack on the Movement was primarily attributable to the strength of the Civil Rights Movement and only secondarily attributable to the saving interventions of the Supreme Court. 

That's why BLM matters more than who's in the White House or who's on the bench.  Politics will carry the day, in the end.  Segregationist legal attacks, as the article defines and discusses them, like libel suits to dissuade pastors from speaking truth to power, were aimed at suppressing political speech and political change.  The states endorsed the 15th Amendment in the 19th century; but Congress never passed legislation to enact its provisions until 1965, when politics carried the day and forced Congress to finally (after nearly a century of neglect) act.  By the time Shelby v Holder reached the Court, political winds had changed and Chief Justice Roberts happily eviscerated most of the Voting Rights Act on the grounds of state sovereignty, the 15th Amendment be damned.  The only effective response is a political movement that continues the fight for equality and justice.  We cannot rest on "won and done."  

And not because the "right" never rests.  It is tempting to look upon the situation as the Greek concept of the cosmos:  chaos is the natural order, logos is the tool of the struggle to impose order, a struggle it must lose, because you cannot change the natural order; not ultimately.  The fundamental American ideal is not equality and fairness; it is power in the hands of a few, with equality being merely a chimerical notion that we the people are better than the subject of monarchs.  Even though we bend our knee to wealth and power (why else does anyone listen to anything Elon Musk says?). Trump is venerated largely because he is presumed to be wealthy; and "if you're so smart, how come you're not rich?"  Rich people deserve to be in charge; equality and equity be damned!  Today in my school district there are new board members who question even the teaching of "equity" in the classrooms, which is funny because those members are white, and whites are a minority (numerically) in the district.  One member worries about how we are teaching ESL, when there are over 130 languages spoken by students in the schools here.  I'm sure he imagines it is only Spanish speakers who need to "learn the language."  I say "numerically" about whites as a minority because we all default to whites never being a "minority," because minority means non-white, not just "fewer." 

And don't doubt for a minute that the use of "non-racial" laws in the '50's and '60's isn't a tactic that's alive and well today:

Of course, the distinction I am emphasizing between direct and indirect legal defenses of white supremacy—between race-conscious and race- neutral tactics, in our contemporary terminology—was not always clear. The legal tools by which the public officials and lawyers in the white South mobilized against the Civil Rights Movement should be considered on a spectrum, ranging from segregation laws on one end to long-standing, uncontroversial laws such as trespass and libel on the other end

Greg Abbott's arrest of immigrants allowed into the country by the federal government pending immigration hearings, is for trespass.

If there is hope of saving Roe by Roberts switching his vote, it’s in the feverish anticipation now at large that if Roe can fall, what can’t? Will states start passing laws to challenge Griswold, or Sullivan, or Reynolds v Sims, Baker v Carr, and Gray v Sanders? If Roe can be undone, why not everything?  Sullivan?  Yes, Sullivan:

"But public records show Stephanie Kopelousos, DeSantis’ legislative affairs director, shared a draft proposal and briefing document just before lawmakers kicked off their annual session on Jan. 11. Those documents targeted New York Times Co. v. Sullivan, a 1964 landmark Supreme Court decision that made it extremely difficult for public officials to win a libel case."

"The draft bill proposes considering 'a failure to validate or corroborate the alleged defamatory statement' as evidence of actual malice in defamation cases, a lower standard than 'reckless disregard' for the truth," said the report. "It revises the definition of a 'public figure' to exclude people whose notoriety arises solely from defending themselves publicly against accusations; granting an interview on a specific topic; public employment other than elected or appointment by an elected official; or a video, image or statement uploaded on the internet that has reached a broad audience."

According to the report, the ultimate goal of the legislation was to get the Supreme Court to overturn that decision, allowing states to enact their own standards for when reporters can be sued for libel — the draft singled out Sullivan as “a dramatic departure from the original understanding of the Free Speech Clause of the First Amendment to the U.S. Constitution."

If Sullivan is under fire in Florida for reasons other than to assert white privilege in law again, the purpose of the sought reversal is the same as L.B. Sullivan's:  to squash public discussions those in power don't like, because such discussion might mean those in power won't remain in power long.  Behold the power of popular opinion.

And so my rants against libel/defamation suits go on.

Anecdotally, I do see a substantial increase in defamation threats and suits against women who have written or spoken about harassment or sexual assault.
/1 https://t.co/2WPNWBuzve

— WokeMindVirusHat (@Popehat) May 19, 2022

Pretty much what Elmo is threatening.  Money makes might, and might makes right.

Ain't that America?