Podcast: Libel, the Media, and Constitutional Legitimacy
You can listed to the podcast audio at this link: https://constitutioncenter.org/podcast-libel-the-media-and-constitutional-legitimacy
Jeffrey Rosen: [00:00:05] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit institution chartered by Congress to increase awareness and understanding of the constitution among the American people. Recently President Donald Trump criticized the New York Times and called for a change in the libel laws. This is not the first time the president has criticized the Times and the press. Our topic today: what is libel? What do the libel laws say? What would the consequences of changing them be? And should they be changed? Joining us are two of America's leading experts on libel and free speech and it's such an honor to have them both. Adam Liptak is the remarkably distinguished Supreme Court correspondent for The New York Times. He writes Sidebar, a column on legal developments and, among his many other achievements, he practiced law for 14 years including in The Times' legal department before joining The Times in 2000. Richard Epstein is the inaugural Laurence Tisch Professor of Law at the NYU School of Law and among the most distinguished scholars of the Constitution in the country. Adam, Richard thank you so much for joining us.
Richard Epstein: [00:01:21] Pleasure.
Adam Liptak: [00:01:22] It's great to be here.
Rosen: [00:01:23] Let's jump right in. Adam the president has called for changing the libel laws. This would require an alteration in the actual malice standard recognized in the 1964 New York Times case. The actual malice standard means that news organizations have to knowingly publish a falsehood or published it with reckless disregard of whether it was false or not. Where did the actual malice standard come from? Should it be changed? And if it were changed, would the president become a libel defendant as well as a libel plaintiff?
Liptak: [00:01:57] So there's a lot in that question. The actual malice standard is a little hard for laypeople to grasp because- partly because it really has nothing to do with malice in the sense of ill will or spite. As you say correctly Jeff, it requires someone suing for libel who's a public official to prove not only that something false was said about them, not only that the false thing caused damage to their reputation, but also that the person saying the thing knew it to be false or entertained serious subjective doubts about the truth or falsity of what they said, so it has to be in essence a calculated falsehood and whatever else you can say about journalists - we may make mistakes, we may fall short of our own standards but it is a terribly rare journalist who is going to publish a knowing falsehood. And moreover even assuming that were to happen, the libel defendant is in a very tough spot because the only person really who knows whether the falsehood was knowing or not is the person who published it - very hard to get at with circumstantial evidence. So that bottom line of the actual malice standard is that it makes it all but impossible for people who are subject to it, public officials and public figures, to pursue libel suits. And that's what makes President Trump frustrated because he reads things about himself that he doesn't like, true or false, and he'd like to do something about it. But as a public official he's really boxed out.
Rosen: [00:03:24] Thank you so much for that. Richard you've written many distinguished articles arguing that the actual malice standard should be changed including an op ed in The Chicago Tribune in 1985 and many scholarly articles. Why do you think that the actual malice standard should be changed and what standard should be adopted instead?
Epstein: [00:03:42] Well I think the difficulty with the actual malice standard is it traces too much on what the defendants thought and not enough about the harm to the plaintiff's reputation which in many of these cases can be quite devastating. This has nothing to do with Donald Trump. It seems to me that the appropriate way to look at this is to figure out what the appropriate balance of equities is, and the earlier view which was actually announced when he was on the 6th Circuit by Chief Justice Robert Taft- William Howard Taft who later became president was, look if you broadcast something and you just simply make a simple opinion of the sort that says I think that X is a thief and it turns out he's not a thief, that turns out to be a false statement and you can sue for it. But if what you do is you lay out all the evidence which other people could then decide whether your conclusion that X is a thief is true or false, that's perfectly OK. So the subtle line between fact and opinion took a place in that case and I think that that on balance is a better situation because as Adam said it is basically the case after a lot of contentious litigation from say 1964 to around 1969, given the defenses that the newspapers have, nobody brings a libel case anymore. It has to reproduce the libel and everything else. So what should be done? One Solution which I like a lot is you don't worry about damages but you worry about corrections, and you say if it turns out that somebody can show that the statement is false, you don't have to prove anything about actual malice or harm, the newspaper has to publish a retraction at equal level and distinction of the original paper so the record could be corrected, and newspapers have resisted that, ironically on the grounds that it would hurt their reputation which only makes the point about how important reputation turns out to be. And indeed in the New York Times case of 1964 it turned out you didn't have to go to the actual malice standard to protect the defendant. The harm was said to be of and concerning the plaintiff, a standard test. Sullivan was not even identified by name. He became a local folk hero and he was able to sue for 500,000 dollars in damages at the time which would be about two and a half million dollars today for becoming a local hero. There were six other people waiting in the wings and Alabama could have broken the New York Times. So the correct answer in that particular case is look very hard at the particular damages and to look very hard at the of and concerning requirement and that will give you a much better mix than the current actual malice rule which was a radical departure from all pre existing cases on the subject, and to my mind a mistake.
Rosen: [00:06:18] Thank you so much for that and thank you for telling us that it was a Taft decision on the 6th Circuit that preceded these libel rules as a great Taft defender-.
Epstein: [00:06:27] Hallam against somebody or other.
Rosen: [00:06:29] Dear We The People listeners check out the Hallam decision. I'll read it too, and write to me and tell me what you think of it. Adam assuming you don't have Hallam memorized, what do you think of Richard's proposal to return libel law to the standard that existed before New York Times and what would the consequences of his proposal be?
Liptak: [00:06:45] So I think Richard is in one sense right, one sense wrong about the Sullivan case. It's true that the Sullivan case could have been disposed of in straightforward common law libel grounds, of and concerning. But it's also true that it was at the vanguard of a number of cases whose goal was during the Civil Rights Movement to drive the northern press out of the south and to deprive the civil rights movement of the attention that it needed like oxygen, and that caused William Brennan and his colleagues to come up with a larger rule, one that would protect the press robustly in an era of national crisis. Now you can ask the question, did they make too broad a rule that we're decades later- have issues with it. But I think that the core of the First Amendment really is concerned with protecting political speech and with protecting criticism of the governments and public officials in their official conduct and that the actual malice rule- perhaps it's been applied to too many kinds of people, but high government officials should be subject to robust critique, investigation, and criticism and there should be plenty of breathing room for the press to do its work. I'm not a fan of compelled corrections. The Court- I mean compelled speech is an area where lots of people are getting protection today. The Tornillo Case held- the Supreme Court said that we couldn't- there is no right of reply under American First Amendment law, so the notion that the courts should be telling the press what they must print is not correct.
Rosen: [00:08:24] Richard, let me just say that I've googled it and found it exactly as you said Post Publishing vs. Hallam 1893, fascinating that it was William Howard Taft who came up with a narrower rule. What would the consequences of adopting a narrower rule be? Would it be easier for Stormy Daniels for example to sue President Trump? Under the current standard a judge seems likely to dismiss her suit.
Epstein: [00:08:47] Well I mean the answer is it's going to be on balance easier for all plaintiffs to sue all defendants. So your initial teaser at the beginning that the president may rue the day when it turns out that the libel standards are turned on him and deposed anybody else, but just to give you an illustration the very forward New York Times, Trump (inaudible) as he reaps riches from his father, given the amount of documentation that's found in that report, it would be bulletproof under the standard I've put forward. There's also another interest and I think this is very important as well. Yes we certainly should be able to have robust criticism of the president and certainly with respect to facts that are commonly in evidence - anybody can more or less say what he wants, but at the time the decision came down there were a lot of people said you know you don't give any kind of respectable protection under the defamation laws, people are going to be much less willing to become public figures because they're going to be stripped of that particular situation. And the rule of course applies in every conceivable kind of case that one deals with, and during the 1980s it was interesting to see the way the cases broke. What the Plaintiffs did was go into exquisite detail: what the full statement was by the press, how it managed to force them out of a CEO position, it cost some serious electoral office, created difficulties in their marriage or whatever, and all that stuff was true. And the defense of the newspapers was always on the other side namely that we have this grand mission and so therefore this collateral damage has to be tolerated. And as far as the question of whether or not this is compelled speech one way or another this was an option for the plaintiffs. If the defendants want to fight this thing all the way through on this and not correct and have to pay damages, well I think it would be under the standard I said perfectly appropriate. Interestingly enough one of the things that newspapers now do quite assiduously is adopt voluntarily the particular situation that I've said. So if you have, as the New York Times has, a correction page, somebody phones something in and you research and it finds it's correct, you publish a retraction, in that place it's fairly high visibility, not perfect but it will do the trick. So we've moved into that particular kind of situation anyhow. But I do believe in the fact that you know asking somebody to correct the grievous mistake is not a form of censorship. It's not trying to tell them what to think. In other cases it's an effort- it's a remedy to create a remedy for a wrong and you can have wrongs in speech as you can everywhere else and some kind of rectification which is applicable in other cases should be applied here. I don't think the notion of freedom of speech tells you what to do when speech is false and defamatory. It only tells you that if it's neither false nor defamatory, you can say it to your heart's content.
Rosen: [00:11:35] Adam, you were a libel lawyer for the New York Times before you assumed your present distinguished position. Tell us about the kind of care that the Times takes before publishing an article and the remedies that it takes after it issues corrections.
Liptak: [00:11:50] So Richard is quite right that the world he's describing already exists. The question is whether it's voluntary and a consequence of following professional journalistic norms or whether it's compelled by courts. All serious news organizations promptly correct errors of fact. We do, and that means that the Times really very seldom gets sued. We have not lost or settled a libel case for money in the United States since the Sullivan case in 1964 which tells you two things: one, just how much protection it's given us, but also that we take very very seriously our obligation to get the facts right. When I used to give seminars to journalists I would describe the situation as a kind of doughnut and the inner part of the doughnut which is what we aim for is very serious fact based journalism, and when we have an occasional misstep to correct it promptly and transparently and openly. And the outer part of the doughnut is the amount of protection the law gives us, the breathing room the law gives us, so that the government which is the courts of course is not compelling us to say things, but is letting us use our own professional judgment about what the right outcomes are.
Epstein: [00:13:02] No other profession gets that degree of deference in terms of what it does, whether you're accountants or product manufacturers and so forth. I agree that these are enormously important prophylactics but I don't think that freedom of speech means anything more with respect to speech than it does with freedom of action. There are limitations based on force and flow and I think that to some extent those ought to be protected. Fortunately the prophylactic behaviors I think work relatively effectively. It's also the case that when you're going after public figures like the president, his reputation is so established positive and negative that even a very powerful and thorough survey like the one that the New York Times did is not going to change anybody's opinion about the president. Lots of people knew his father was rich, lots of people knew that he has taken an edge somewhere or another, lots of people knew that he became a kind of a licensing genius of one sort or another, so I think in effect with presidential candidates the vast amount of knowledge out there means it's very hard to move anybody one way or another. But with many of these business executives whose lives have been shattered by this kind of information, they don't have that background of public estimation of them which insulates them from unexpected shocks.
Rosen: [00:14:17] Adam has the- your response would be great and I also wonder whether the rise of the net and social media has changed things and since anyone with connectivity is a journalist, whether there's need for more protections?
Liptak: [00:14:29] So, a number of points. I think business executives are a good example of someone who might need more protection and in fact when I used to practice, I was very nervous about business executives because it was not at all clear that courts would hold them to be public figures entitled to the actual malice standard. Many courts consider business executives to be subject to a lesser standard of negligence meaning that mere carelessness could subject you to liability. So I think Richard is is right to be concerned about it but I think the law is alert to that question also. As to president Trump's reputation, let's remember actual malice is not the only element of libel; you have to show harm to reputation. And there are serious questions about whether in a number of areas President Trump's reputation is capable of being harmed. And then I think you had a third question Jeff but I've lost it.
Rosen: [00:15:21] About social media and the fact that bloggers don't do fact checking.
Liptak: [00:15:25] Yeah I think that there was more libel litigation going on in an era where we really controlled the flow of information to the public, where a handful of networks and big national newspapers and newsmagazines really were the way people found out what was going on, and therefore there was more reason to allow people to sue us because they could- what could they do? They could write a letter to the editor; we publish it or not. These days everyone has a platform to respond and- for better or worse, our reputation as being assaulted daily and it may be people are less apt to trust what we say even when we publish a 13000 word investigation that was the result of the examination of a hundred thousand documents over 18 months. We live in an era now where truth itself is contested.
Rosen: [00:16:22] Richard, your thought just on the effects of social media in a post truth world and whether that makes strict libel laws more or less necessary would be great.
Epstein: [00:16:28] Well what happens is, when you're dealing with social media it becomes almost impossible to use a libel law because any document which is stated by one person is transmitted by another, echoed by three other people, so the number of times that you could be called a liar in any given day could be in the thousands of people. So I think what's really happened is that there's no way that you could get the individual persons for libel. The hard questions that you'll have to ask him on which I'm highly doubtful is whether or not you wish to have some sort of institutional responsibility for the people who post the information or allow it to be posted on their sites, whether it's Twitter or Facebook and so forth. The initial inclination that I have in those cases is that this turns out to be a terrible mistake because that there are too many people who post on these things and the last thing we want the social media to do is to censor everybody that's there. The compromise position which has been rejected is if somebody presents credible grounds that a given statement is out and out false and defamatory or worse you take it off for a while examine and then put it back on if you think it's credible and you keep it off if not. My own view about that is I get more skeptical of that solution today because I think the sheer volume of stuff that we have is overwhelming. One of the things that was said in New York Times is that counter speech is a perfectly appropriate remedy. This was in response to the old aphorism which says the reason we have a law of defamation is that it's hard for truth to catch up with a lie. I think in effect the gap is closing a little bit and I think if you actually try to go to where we are today with mass media, it's going to be essentially a free fire zone no matter how reckless statements turn out to be, no matter how scurrilous the various kinds of accounts. I just don't see it. And one reason I don't see it is anybody who is a public figure who wants to bring a libel suit has to be mad because if you tried to bring this suit, anybody who reports on the suit gets the so-called absolute record libel privilege so long as it's an accurate summary. So you have to essentially announce that if you're gonna file a complaint alleging that terrible things about said about you, they're now going to be said, another hundred thousand times in the next 24 and 48 hours. There has been no serious libel litigation in the United States against anybody who is a remotely public like figure since 1990.
Rosen: [00:18:47] Fascinating. Adam what is the situation in Europe where in Britain, the libel laws are tighter and there is no exemption from liability for social media companies? They don't have the equivalent of Section 242 of our Communications Decency Act. And what does that tell us about what we should do here?
Liptak: [00:19:05] So it's an entirely different culture in Britain. If something bad is said about you. it's expected you'll bring suit. Those things are often quickly settled in part because the other side has to pay your legal fees if you prevail. The protections for the press are much lower. But so are damages. So you get to be a little bit closer to what Richard was talking about, of having the legal system sort of tentatively assess the truth of something and not relying on concepts like actual malice and negligence in good faith, but really trying to drill down figuring out whether the statement was true or not and if it could be proven false, you will pay by American standards relatively modest damages, maybe some fairly substantial legal fees. As for this question of the Communications Decency Act, a federal statute that gives Internet platforms immunity from being sued for the things that they post, it really leaves you in a very odd situation. Consider this: if the New York Times publishes a letter to the editor in our print paper, it is as though we had said it. The libel concept is tale barrers are as bad as tale makers and we can be sued for it. If that very same statement is posted as a comment on our Website we are wholly immune. And the idea behind the Communications Decency Act, decades old now, was that the nascent Internet needed to be protected whereas the establishment press could be sued to a fare thee well because we were so powerful. Well you know that has flipped on its head but we still have this legal regime in the US that's a little hard to justify.
Rosen: [00:20:42] Fascinating. Richard should we move to the British system and should Section 242 be repealed?
Epstein: [00:20:48] Look, I think what Adams said is a sign of the anomalies. Let me say what I think the correct answer on that case is before I go to 242. What happens is I think if you are a publisher as opposed to a common carrier or a quasi common carrier you should be subject to the same rules whether you publish it on the Internet or whether you publish in your newspaper. And I think the newspaper rules are probably the correct rule because when you do these things, you edit those letters, you review those letters, you've got a lot of control. When you're talking about the random facebook people who just simply create a platform but don't supervise content I think probably the Communications Decency Act is the appropriate kind of response because I think it's just too much of a burden to go after them. I mean to put it in the other perspective these guys become punching bags in part because I think they make the terrible business judgment mistake of announcing their own politics when they're running these networks. But they get constantly hammered for liberal biases and conservative biases and so forth and I think it would be extraordinarily dangerous for the reasons that Adam said to allow some independent party to sort of make a judgment as to whether the skew is one way or the other. But it turns out that there are a lot of people who say the quasi monopoly status of these organizations invites them to heavy scrutiny even if they're not going to be a publisher. This will turn out badly in the next five or 10 years. I think one of the major sources of contestation because not only do we have novel technologies but there's also been a quiet revolution in the- not the libel laws but in the antitrust laws where more and more people are starting to say that bigness is itself a form of badness regardless of how you get it. And so I expect to see enormous contestation on these particular issues. For the time being I think that Adam should be responsible for the New York Times both online and in the paper, want to sign their own website. But I don't think anybody who simply runs an abstract posting thing should be there. So I would with very much unease keep that there and do what I think Adam says the newspapers do which is to constantly put social pressure on Twitter and Facebook and so forth, and Google to constantly watch their schemes and to do so relatively free of legal liability. I just don't think it's going to work. Other tools- it's too slow and the consequences too grave and the error rate is too high. Sometimes what you have to say is regrettable as it may sound that counter speech is the better remedy.
Rosen: [00:23:20] Adam are you confident that counter speech is an adequate remedy in an age of widespread fake news, and what kind of social pressure should be placed on the companies? Should they be making judgments about fact and fiction, or are there other screening mechanisms they should put into place?
Liptak: [00:23:35] Well Jeff you've written some very smart stuff in this area where we're really running into a situation where technology has outpaced the law and these giant companies, Google and Facebook and Twitter, have taken over the editing function that used to be done by journalists. And if they were truly platforms, simply bulletin boards on which people could put whatever they want, that would be one thing. But more and more we're insisting as a matter of shaming them that they take down hate speech, they take down the the political trolling, they take they take down the Russian advertising, and once they're in that role you wonder if that function should be entirely privatized and when they should be entirely trusted or whether there's a role for government. I don't have a settled view on that but I agree with the sense I'm hearing from Richard that this is a fast evolving situation.
Rosen: [00:24:36] Richard if there's not a role for government, some specific suggestions you have for the companies for principles they should adopt in trying to distinguish between truth and falsehood?
Epstein: [00:24:45] Me?
Rosen: [00:24:45] Yeah you.
Epstein: [00:24:46] My own view about this is I think that you cannot do two roles at the same time. You cannot as, for example Facebook isn't Google to some extent have tried to, be very strong in your political statements about progressive values of one kind or another and then expect that people will believe that you're impartial when you decide the way in which you run your website. And so when Google gets into this huge scrape and fires a particular employee who is a fairly learned statistical analysis of why there are fewer women programmers than there are men and gets fired for his opinions, for people on the conservative side of the line that's just a red flag in front of them. And the rule that you make in every business is you have one of two roles that you can play. You could be either an advocate or you can be a platform or an umpire; you can't do both. So my advice to all of these companies is what they do is they quiet themselves down, they don't write anything collateral about how you're supposed to lean in or do anything else of that sort, run their businesses and then, as I wish the New York Times would do, Adam, what you also have to do is to put in positions of power people whose political orientation is different from that of the dominant culture. The two of them could work these things out internally and so one of the reasons why many people are so suspect about the New York Times or the New Yorker, perhaps, and less so I think of the Wall Street Journal, is that you know there are no Republicans in positions of power in the New York Times organization. And if that's going to be the case it's just easy to draw the kinds of inference. There'll be no libel suits but there will be real reputational damages that can come from this. And I think virtually every one of these organizations has to aim for a kind of a balance on this particular situation. God forbid I should ever tell them whom they should hire or how they should do it. As you know I don't believe the anti discrimination laws should apply to competitive employment markets, only monopolistic services. So I'm not trying to tell them how to do it but I am saying that the reputational consequences of the newspaper of every newspaper are being perceived as being hopelessly one sided, same thing with Facebook and Google and so forth, Twitter less so perhaps, is I think a very important thing that they have to be aware of.
Rosen: [00:27:01] That's a fascinating suggestion. Adam, James Bennett of The Times opinion pages has been trying to reach out to conservatives but should, is Richard right that editors should be politically balanced for internal legitimacy as well?
Liptak: [00:27:15] So I take it we've moved away from a legal discussion to one of the professional norms. We hold- we hold ourselves out to be and try to be impartial and neutral, and I don't know that it should matter what someone's private politics are if they're following journalistic norms correctly, just as say a lawyer may have political beliefs but the client wants them to say something else. Here it's rather easier. Here you're just trying to give a balanced representation of the truth.
Epstein: [00:27:45] So let me say I I disagree with that.
Liptak: [00:27:48] Explain.
Epstein: [00:27:50] Look, my latest column is about gender equity. There was a New York Times series on it and what they do is they cite studies by the McCann Global Institute or the McKinsey- whatever it is, which I think are terrible studies, and they're treated as though they're gospel. And so what happens is all of this stuff makes it onto the page and there is nobody inside the organization that says hey do we really want to print this story or do we really want to run these conventions in that particular form? And so I just don't think you can have that kind of hermetic feel with respect to the way in which it goes, and the headlines I think are oftentimes very troublesome. And so I actually think that for their own sake every major organization should have a kind of internal intellectual diversity so that before things go out there's somebody on the other side that says do you really want to take that kind of picture? And I think that's true of conservative as well as liberal papers. It certainly I think is true with respect to universities and so forth. I do think that the levels of left wing dominance inside these establishment institutions for the most part is extraordinarily powerful. And I think that some degree of self correction is most welcome but at this point not forthcoming.
Rosen: [00:29:05] Adam if I could press that point, and this is obviously not a legal but-.
Liptak: [00:29:10] We're in the realm of press criticism, but I'm happy to talk about it.
Rosen: [00:29:12] It is and it's an important discussion because, dear We the People listeners, we are going to be talking about the legitimacy of our institutions, of the Senate, of the Supreme Court, and of the press, over the coming months and years. And the New York Times is a pillar of that legitimacy. Emily Bazelon, my colleague, I much admire her work but she's made clear you know in the in the magazine, her substantive views of Judge Kavanaugh but then she wrote a news article about his drinking habits. Conservatives said that that's biased. Is that a legitimate concern and how could the Times address it?
Liptak: [00:29:44] Well so the Times acknowledged that it made a mistake in asking Emily to play a role that Kavanaugh's story. As I understand it was simply that there was a police report that needed fetching in New Haven where Emily lives, and she did and got a byline and probably she should have been kept out of it. But I think that's a trivial point. I think Richard's general point is an important one. And but to move it back a little bit toward the law, not accepting for a second his basic premise as a factual matter. But let's assume it's true. Let's assume there are advocacy journalists in the world who have opinions and nonetheless as Richard was earlier saying in the Taft decision, nonetheless lay out the facts and lay out their conclusions. I don't know that that's such a bad thing. I think that's how much of the European press functions. I think that that way of doing things is fine. I think that's how the press functioned in the founding era. So this notion that lately, and this is a late 20th century development, that there are news organizations that hold themselves out to as straight and fair and on balance is to my mind a great thing. I think we are part of that. But the legal protection shouldn't rise or fall on whether you have a point of view or not.
Epstein: [00:30:57] I didn't say it should. I agree with that. But I'm saying in effect I think there are reputational hits. The New York Times has been a progressive newspaper I would say since about 1960 but there's been a noticeable shift in the way in which its headlines and the way in which it operates since that time. Many headlines that I see on the paper which seem to me to be criticisms are treated as news stories. I think that line has started to blur and I think that that thing is worried. And you know I'm an academic. I don't have an institution behind me. I certainly have a brand and I'm proud of it. I work for the Hoover Institution. I publish these papers and you know that's basically a small c conservative organization. I have nothing against this. I'm saying what is different about this and it's more important for Facebook than it is for the New York Times - Facebook if it wants to be a platform it cannot have a view. The New York Times if it wants to be a newspaper can have a view. I don't dispute that at all. But I do think in effect that if you push too hard the danger is to your own reputation because you become a fair target for people on the other side and socially if it becomes really intense on both sides of this stuff what happens is you see the position that we now have in American public life. There's nobody in the middle. Instead of having a bell shaped curve where the peak is around the center we have a U shape curve in which there are very few moderate Democrats very few moderate Republicans and you get a press pushing very hard on both directions. And I think civil cohesion takes a real beating when it turns out that each side does not recognize from time to time that it may in a particular case have made an error. So this is not a legal argument. It's a sociological argument which is very difficult to justify and so forth. But I think if you sort of look at the way in which the world worked on Supreme Court nominations 50 or 60 years ago it was a very different world than we have today and the polarization is going to be something that's extremely difficult to overcome particularly in this last iteration. It's I think a lasting scar.
Rosen: [00:33:01] The polarization will indeed be difficult to overcome. Thank you both for engaging in this freewheeling discussion. But Adam in this time when the polarization is so hard to overcome and the distinction between fact and opinion is so embattled, what can the New York Times do to restore the faith of readers of different perspectives?
Liptak: [00:33:21] I don't know that we can do anything more than keeping our heads down and doing our jobs, staffing up. We have doubled the size of the Washington bureau. We have enormous investigative resources. We still have bureaus all around the world. We're a powerful newsgathering organization. I'm sorry to hear that we disappoint Richard from time to time but once in a while if I'm like on an airplane say and I have more time than I usually do with the paper and read it front to back, I emerge from that experience very, very proud and thinking that this is a very valuable American institution at the top of its game.
Rosen: [00:34:00] Richard, since we're talking about the legitimacy of institutions I can't resist asking you how you would approach the challenge to the legitimacy of the court? What can the court do to restore faith in its bipartisan legitimacy?
Epstein: [00:34:16] On the court I don't think the problem is acute. I think it's how you get there. The nomination process is clearly broken. I will put aside all my partisan preferences on this thing. I think the first thing that one does is there's no such thing as confidential information that is shared not shared between the two parties. The second thing I think is I'm very much opposed in general to having the nominee appear before the panel and to be grilled in the way in which it happens. The record stands out there. Generally speaking what they're always trying to do is to get people to make concessions and predictions and so forth. And everybody has to play rope a dope and they start to be appropriate. A third thing I think which is very important, I would change the entire constitutional provision. I do not think Supreme Court Service should be for life. I think it should be for 18 year terms so as to be able to get a higher rate of rotation. You don't worry about people retiring in three years and the next guy setting the agenda for the next 40 years and so forth. That was a position I took many many years ago. And I think it is more today one way or another. The other part which I think I can't change is when you have a Supreme Court which has so much power over administrative law and such an enormous scope of federal jurisdiction, there's a lot of shall we say discretionary power there. And whenever there is uncertainty it will attack all sorts of resources as people try to move it one way or another. So I'm still a 1937 classical liberal on this issue. I'm not defending segregation or anything ridiculous like that but I think a smaller federal government and stronger property rights will make the Supreme Court a better place.
Rosen: [00:35:53] Fascinating. Adam, same very important question to you: what can the court do to restore its legitimacy or what can citizens do to restore it? And if you don't feel confident giving an answer, you- perhaps you could describe some of the best arguments that you've been reporting on.
Liptak: [00:36:06] Well I used to be a fan of confirmation hearings. I used to think that seeing John Roberts on his feet and Elena Kagan on her feet actually gave you some insight into their habits of mind and what kind of justices they were going to be. But I agree that this recent experience did the nominee and the court no good. Maybe there was value in it but at some cost to the court's legitimacy. I completely agree with Richard and also with the suggestion that with a constitutional amendment that we should join every other developed democracy in the world whose high court- whose constitutional court has either a fixed retirement age or term limits because this notion of people coming on at the age of 45 and serving until they're 90 and being the dead hand of history and timing their retirement strategically so they can step down under a President whose ideological views they approve of is very bad.
Rosen: [00:37:00] This is wonderful agreement. Richard, another suggestion is federalism and conservatives and liberals are arguing for a denationalizing constitutional issues and returning them to the state level. Do you want to take another beat on that?
Epstein: [00:37:15] Well as you know that's been my position since 1986. I think the commerce clause should not apply to internal manufacturing or internal agriculture or anything else. Go back to what it was that our friend Justice Marshall- Chief Justice Marshall said and give us an idea and ignore all of the extravagant misinterpretations of it that took place afterwards and it would be a far better place. The problem is it's much more difficult to undo a change when new institutions are embedded than it is to prevent it from happening to begin with. And so I think in effect that's too big for something to take on except by increments. The history of this has been very uninspired. Chief Justice Rehnquist in the Lopez case in 1995, he said I'm cutting back on the gun laws but he reaffirmed Wickard and Philban which says that the amount of wheat that you feed your own cows is part of interstate commerce because of its influence on price and quantities and so forth. That's been reaffirmed. I don't see how you can do anything particularly since the local- lower courts after Lopez have taken the now it's possible reading of it and essentially they are very comfortable with the status quo. And so I just don't see that happening. I'm a passionate defender of that position, a passionate defender of strong property rights, a passionate defender of separation of powers. Passionate defenders of living Chevron deference. That's why I'm an outlier.
Rosen: [00:38:43] Adam we are far afield of libel but the field we're in is extraordinarily fascinating. If Richard's position on the Commerce Clause were adopted which is no longer a hypothetical possibility what would the effect on the court's legitimacy be?
Liptak: [00:38:56] Oh I think to the extent the court disclaims power it depends on the particular context in which it comes up. You know I mean if they revise commerce- the commerce clause to strike down the Affordable Care Act that will be more important in the public mind as a political move than a jurisprudential one. But in general to the extent the court disclaims power that's probably good for the Court's legitimacy. The other thing that we might see more of that both Justice Brennan and lately Judge Sutton of the sixth circuit have written about is that there may be a larger role for state constitutions to play.
Rosen: [00:39:29] And I should say that Judge Sutton was here at the center recently discussing his fascinating book 50 constitutions. Richard, how is it a mixed bag?
Epstein: [00:39:38] Well what happens is sometimes what the states do is they pick up gaps that the Supreme Court leaves. Some states are better on property rights for example than the national government. But these aggressive state courts tried out statewide financing in California under Serrano and Priest led to an enormous destabilisation of the whole system and basically has made it extremely difficult to sustain public education in that state. The problem that you always have is you give a weapon to anybody and you make it in general terms it can be for good or it can be for evil. It's not saying that they're wrong in general for having decentralized norms. Second difficulty with state courts can Balkanise interstate commerce. That's where you really worry about the way in which these things go by putting various kinds of barriers on people who come from outside the particular state. This was a huge concern under the dormant commerce clause and to expand state power, it could be a threat to the national market so you have to be very careful.
Rosen: [00:40:36] And Adam the response both by Judge Sutton and by progressives like Heather Gerken, leader of the new progressive federalists, is that it would just turn down the stakes and would make the consequences of Supreme Court decisions less significant. Say more.
Liptak: [00:40:52] Well yes as Dean Gerken says there's something to be said for federalism all the way down, for returning power to lower levels of government, not only states but to localities, to let people see their democracy in action and not let them watch the kind of reality show we live in at the national level but to have a more authentic experience of lived democracy.
Epstein: [00:41:16] But again I'm going to answer just very shortly on the double edged sword point. So the strongest objection that many people have raised to the California requirement that headquartered corporations in California have a minimum number of women is essentially what they're trying to do is to dictate to the state the way in which many national corporations have to do their business and are going to encroach necessarily on what the state of corporations says about the same kind of business. So the external effects problems are extremely hard. I'm not saying that I disagree with Adam. In fact I tend to move in that particular direction, but ironically if you want to have provincial state governments doing this, their ability to discriminate against discrete and insular minorities in the segregated south is strong, and so you may need strong federal protections for example of voting rights on the one hand or property rights on the other hand when you're doing this. This is such a complicated system with multiple levers that you just have to be very cautious about recommending major changes in one particular area unless you figure out how other portions of the institutions are going to be evaluated.
Rosen: [00:42:22] This has been such a wonderfully free ranging discussion. I'm delighted that it's ranged so broadly but we need to wrap it up, and I'm just going to ask you Adam, is it important in this post factual era with so much suspicion of institutions to have a firm distinction between fact and opinion in the law? And what is the current status of that distinction and does it have to be firmed up or not?
Liptak: [00:42:52] It- to to a large extent whatever I think doesn't matter because it's a lost cause. Richard's point of view is shared by lots of people that journalism is is tainted by illicit motives and political opinions and so on. But in an ideal world they are very separate realms. You know there- we go back to the Taft Point again. There are factual premises that one would hope everyone can agree on. And then people can go to different conclusions from those agreed upon facts but unfortunately it seems we live in an era where people get to choose their own facts and then the conclusions flow from not a shared set of facts but from discrete silos of facts and that's very bad for our country.
Epstein: [00:43:39] Two words are so dangerous. Alternative facts is not an acceptable way of looking at things and fake news is often a term for news. It's so hard to lower the temperature but essentially the one thing that I learn as a lawyer is if you could narrow a dispute to a particular case instead of treating as an exemplar of the way in which the world is organized, if you change the rhetoric on particular cases, you're talking about what X said or why they're not talking about the relationship of whites to black, men to women, old to younger, you'll do better. But I think the journalistic preference often driven by the new entrants on the margins has actually tended to make every small case into a big case which creates all the difficulties. So Adam and I think are in agreement of that: if you could lower the temperature you might be able to improve the discourse.
[00:44:28] Wonderful. That is a fine motto for the We the People podcast and it's an excellent note on which to end. I hope to have both of you back to continue to discuss the legitimacy of our institutions, and it is always a great honor to have Adam Liptak and Richard Epstein. Adam, Richard thank you so much for joining us.
Liptak: [00:44:49] Thank you Jeff.
Epstein: [00:44:50] Take care. Good to speak to you Adam. Always a pleasure.
Liptak: [00:44:52] You too Richard.
Rosen: [00:44:54] Today's show was engineered by David Stotz and produced by Lana Ulrich Madison Poulter and Scott Bomboy. Research was provided by Lana Ulrich and Sheldon Gilbert. Please remember to rate review and subscribe to our podcast on Apple podcasts Google or wherever you listen. And recommend We the People to your friends and colleagues so they too can spread the constitutional light and educate themselves about the Constitution. And please dear friends always remember when you slumber and when you wake that the National Constitution Center is a private nonprofit. We rely on the generosity of people from across the country who are inspired by our non-partisan mission of constitutional education and debate. We the People friends this mission is now more urgently important than ever. You know how under siege the legitimacy of our institutions are. It is urgently important to have civil dialogue so that all of us can educate ourselves from the best arguments on all sides of the constitutional debates at the center of our national lives so that we can make up our own minds as informed citizens. That is why you must support the National Constitution Center with your time, treasure and talent. You must become engaged with us. And if it's possible, please come and support our work including this podcast, visit ConstitutionCenter.org to learn more. On behalf Of the National Constitution Center I'm Jeffrey Rosen.