A central premise of the First Amendment is that our nation has a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Proceeding from that commitment, the Court ruled in 1964 that a public official could not recover in a defamation case without showing that the defendant had published a defamatory falsehood either knowing that it was false or in reckless disregard of the truth.
Opponents of this ruling have argued that it shows insufficient respect for the value of reputation and that it could discourage people from running for public office. I have long believed that we should encourage dissent against those in positions of authority and that persons are not discouraged from running for office on the ground that they might not win a defamation law suit if they are defamed.
On the other hand, I do think that persons might be discouraged from running for public office for fear of being defamed, regardless of the defamation rules, in ways that are far more problematic than was the case in 1964. I refer to what I think of as the culture of lying. Despite the Court’s chamber music about truth emerging in the marketplace of ideas, in more sober moments, the Court has said that the truth rarely catches up with a lie. Perhaps it is just my imagination, and, of course, there has never been a golden age, but I cannot recall a time in which lies have been so constant, so tolerated, and so effective in the political sphere. Clearly the legal structure is doing little to preclude the blizzard of malicious falsehoods. I doubt there is a legal solution. But the case for our “profound national commitment” is not as strong today as it was in 1964.