11/20/2022
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The communists who run The New York Times don’t just demand a License To Lie about VDARE.com, they also want to put us in the Gulag — or at least drive us into bankruptcy. We previously sued The New York Times for lying about VDARE.com Editor Peter Brimelow. But we lost. We are adults. We moved on.
But The New York Times communists remained obsessed. To that end, they filed an anti-SLAPP suit against us because we had exercised our First Amendment right to petition the government, claiming that a newly enacted New York State law gives them the right to do so.
Fortunately, in a great victory for VDARE.com, on July 6, 2022: the court dismissed the New York Times’ anti-SLAPP suit [ruling here — PDF] because the law was not enacted until after our litigation was filed. Laws are not generally retroactive unless they explicitly say so, and this New York State law did not say so.
Unfortunately, we think The New York Times may well appeal. Why not? They have unlimited money to burn and the backing of the political Establishment.
But we are striking back with our own anti-SLAPP demand. [PDF]
The story so far:
In the current debased state of libel law, being called a “white nationalist,” while damaging enough to get you excluded from polite society, is also (weirdly) considered to be so vague that it’s not provably defamatory.
In this case, however, The New York Times was wrong, not simply about “opinion,” but about a matter of fact. I’m not “open” at all. I’ve repeatedly said that I’m a civic nationalist — e.g., I will be happy to vote for Michelle Malkin when she runs for President on an immigration moratorium plank. Maybe The New York Times doesn’t believe me. But that’s not the point.
Accordingly, reluctantly, for reasons I discussed at length here, we decided to sue The New York Times in early 2020.
Chillingly, it quickly became clear that federal courts are extremely reluctant to cross the New York Times even when it is demonstrably wrong and not following its published standards. I summarized the sorry tale here in announcing our petition to the U.S. Supreme Court for certiorari. (SCOTUS instantly rejected us, but to be fair it probably thinks it’s taken on enough risks recently.)
From our point of view, the high point of this litigation was when Katherine Polk Failla, the District Court judge, acknowledged that whether or not I was an “open” white nationalist was a factual point and therefore “actionable.”
But she also claimed that The New York Times had made me whole with its Stealth Edit. Obviously, this is absurd, even apart from the fact that it contradicts The New York Times’ published ethical standards (see above). Without a public admission in print, how would Rep. Bobby Rush, a former Black Panther, i.e., a black nationalist (but apparently that’s OK), who read the original libel into the Congressional Record [January 16, 2019], know to substitute a corrected version? — which of course he will want to do, as a man of honor.
However, Judge Failla’s finding does underscore that our litigation against The New York Times was not at all frivolous — defined as “without a substantial basis in fact and law” in a lower court.
The ultimate problem, of course, is that in the U.S. libel protection was gutted for elected officials, later expanded include to all so-called “public figures,” by New York Times Co. v. Sullivan (1964), in which the U.S. Supreme Court (Earl Warren, proprietor) unilaterally rewrote the law in order to get some black Civil Rights activists who had published untruths about a Southern law enforcement official, and their ideological ally, the New York Times, off the hook.
Since Sullivan and its progeny (e.g., Curtis Publishing Co. v Butts), American “public figures” (basically, anyone active in public life, e.g., even an obscure journalist like me) has had to prove, not just that the published libel was false — that the facts were wrong — but that it was published with “actual malice.” In other words, that it was published with knowledge that it was false, or with reckless disregard of whether it was false or not.
As more than one Supreme Court justice has observed, “actual malice” has come to be an almost impossible standard to meet, e.g., Justice White in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985), or Justice Thomas in McKee v. Cosby (2019).
Accordingly, Sullivan is being rethought. The process by which the judiciary and the legal profession in general changes its mind on anything is obscure (particularly to someone who thinks as I do that politicians should just debate issues and pass laws about them). But it appears to involve contending law review articles and judicial opinions. Thus it took many years of unsuccessful litigation before the SCOTUS felt bold enough to issue its highly controversial Brown vs. Board decision banning school segregation.
But cases have to be brought to give judges a chance to opine and law professors something to analyze. One of our advisers likened the process to water building up behind a dam. Since we began litigating against the New York Times, we’ve documented a series of further signs that the water is rising (see here, here, here).
And here’s a particularly eloquent statement by Judge Bradford Thomas of the Florida Court of Appeal:
And once a person’s public reputation is destroyed, there is little opportunity for rehabilitation. It is a rare day indeed when a media outlet or a private actor publishes a front-page or lead story about how their false statements destroyed a person’s reputation. And far too often, the defamed would-be plaintiffs do not have the financial resources to even attempt to overcome the “actual malice” standard created by the court in New York Times [vs. Sullivan].
[Thomas Calls for Reconsidering New York Times v. Sullivan, by Eugene Volokh, Reason.com, March 2, 2022]
Of course, The New York Times’ not acknowledging its retraction, despite its own published standards, is an example of “little opportunity for rehabilitation” that Judge Thomas notes.
And the only reason we had any chance of justice at all was because of our wonderful donors.
“The Supreme Court is going to revisit SULLIVAN,” a noted First Amendment lawyer told me when we were thinking about whether to petition SCOTUS for certiorari. “But not for you.”
Needless to say, this brutal statement of our inequality before the law was deeply disquieting. But of course it has become all too apparent that the U.S. now has a two-tier justice system, in which, for example, a black policeman is not even charged for shooting an unarmed Trump supporter. but white policemen are given life sentences when violent black criminals die resisting arrest.
This is a battle between American patriots and America’s emerging Totalitarian Left. We will fight it to the death.
But it’s fantastically expensive and we desperately need your (tax-deductible — for now) support.
Sincerely,
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Peter Brimelow is the editor of VDARE.com. His best-selling book, Alien Nation: Common Sense About America’s Immigration Disaster, is now available in Kindle format.
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