The Executive and Libel Laws

Multi-MSM Headline: Reince Priebus Says WH Wants To Change Libel Laws

Consider the facts:

There are no federal libel laws.  Libel laws are laws created by the States.  Libel is a limit upon speech and is not only not a power delegated to the federal government, but is also a power expressly forbidden by the 1st  Amendment.

“Congress shall make no laws prohibiting the freedom of speech or the free exercise of religion, the freedom of speech shall not be abridged, nor the freedom of press, the right to peaceably assemble, nor the right to petition the government for a redress of grievances.”

Because this power was not delegated to the federal government, it is expressly reserved to the States.  If the federal government, whether it be the executive branch (the White House) or Congress, codified or interfered with a State libel law, it would be completely unconstitutional.  Additionally, law making is a power delegated and reserved to the Legislative Branch.  Therefore, the executive branch, i.e. the executive branch, cannot make libel laws, much less change them.

The supreme Court, however, involved itself in a case of State law libel in 1964, (New Times, Co. v. Sullivan).  In this case, the supreme Court opined that public officials could win a suit for libel only when they could prove the media knew the information was wholly and patently false or that it was published “with reckless disregard of whether it was false or not.”  The supreme Court has even said that libel and slander are not valid suits when the information is so ridiculous as to be patently false, as in the case of satire.  Perhaps Reince Priebus wants the supreme Court to change the way State libel laws are written?  Wouldn’t that be political or judicial activism?

There are serious consequences for allowing the federal government to exercise a power not delegated.   Alexander Hamilton, warned us to not allow unconstitutional laws created by Congress to have the force of law.

“No law, therefore, contrary to the Constitution can be valid…would allow men by virtue of powers to not only do what they are not permitted to do, but also what they are forbidden.” Fed #78

As Hamilton warns, to allow a federal libel law to have the force of law would be to create an unlimited government:

“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.…To deny this, would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”  Federalist #78

To allow either Congress, the White House, or even the supreme Court to create a law governing this speech, would be to allow the federal government to at best circumvent and at worst disregard the Constitution completely.

Modern America is not a brave new world and the issue of federal libel was not unknow territory for our founders.  In 1688, their executive branch, a king by the name of James II, enforced a libel law that prohibited the church leadership from criticizing the king from the pulpit.  This version of libel was particularly egregious as it made any criticism subject to imprisonment, even if the criticism was based in fact.  The law established that truth was no defense.  In this day, the majority of the courts were more than happy to do the bidding of the executive branch and seven bishops were prosecuted for seditious libel. The enforcement of this law, among several other things, brought about the Glorious Revolution of 1688 and the end of the reign of James II.

Benjamin Franklin, writing as Silence Dogood in 1722, reciting the history of James II, made this comment about freedom of speech and press;

“Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech; a Thing terrible to Publick Traytors.” Dogood Letter #8

The drafters of our Constitution knew very well the consequences of allowing the central government to create laws that limit the criticism of government.  This history is particularly why they did not delegate this power to the central government and why it was expressly forbidden in the Bill of Rights.  Let us not be a people so ignorant of our history that we end up repeating its mistakes.