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Cass Sunstein: Clarence Thomas has a point about free-speech law

With his stunning plea for reconsideration of New York Times v. Sullivan — the landmark free-speech decision insulating the press, and speakers in general, from most libel actions — Justice Clarence Thomas has … performed a public service. Not necessarily because he’s right, but because there’s a serious issue here.

To see why, imagine that a lawyer, a blogger, a talk-show host or a newspaper lies about you — and in the process destroys your reputation. Your accuser might say that you are a pedophile, a drug peddler, an arsonist or a prostitute. In an hour, the lie goes around the world.

If you count as a public figure, does the Constitution really mean that the law cannot provide you with any kind of redress?

Thomas doesn't think so. He was writing in a case brought by Kathrine McKee, who accused Bill Cosby of rape. Cosby's lawyer responded to her accusation by trying to destroy her character. Among other things, he called her a liar. McKee brought suit, saying that she had been defamed.

Because McKee was involved in a public controversy, she counted as a public figure. Under New York Times v. Sullivan, decided in 1964, she could not win unless she could demonstrate that Cosby's lawyer had "actual malice," which means that he knew he was lying, or that he acted "with reckless indifference" to the question of truth or falsity.

It's really hard to demonstrate that, so McKee's lawsuit was bound to be dismissed.

Thomas is an “originalist”; he believes that interpretation of the Constitution should be settled by reference to the “original public meaning” of its terms. Thomas offers considerable evidence that at the time of ratification, those who wrote and ratified the Bill of Rights were comfortable with libel actions — and that they did not mean to impose anything like the “actual malice” standard.

A defamed individual (including a public figure) needed only to prove that a written publication was false and that it subjected him to hatred, contempt or ridicule. And for 170 years, the Supreme Court never held that the First Amendment forbids the states from protecting people from libel.

Thomas concludes that New York Times v. Sullivan, and the many subsequent decisions implementing it, were "policy-driven decisions masquerading as constitutional law."

There are strong objections to originalism, of course. But whatever your theory of constitutional interpretation, it is hardly obvious that the First Amendment forbids rape victims from seeking some kind of redress from people who defame them.

Suppose Cosby's lawyer did not actually know that he was lying. Suppose too that he was clearly negligent, in the sense that any reasonable person would have known that what he was saying was false. Why does the free-speech principle prohibit states from allowing McKee to demand a retraction and some level of compensation?

The standard answer, offered in New York Times v. Sullivan itself, is that speakers need “breathing space.” For all of us, the prospect of libel actions could have a “chilling effect” on freedom of speech. If we are dealing with public figures — including politicians — democracy itself requires what the Supreme Court called an “uninhibited, robust, and wide-open” system of free expression, in which speakers and writers are not deterred by the prospect of lawsuits.

Fair enough. But some kind of chilling effect is not the worst idea, because it reduces the risk that falsehoods will destroy people's reputations. And in this context, the idea of democracy is a double-edged sword. If a speaker lies about a politician, and destroys her reputation in the process, democracy is not exactly well-served.

Thomas demonstrates that this point has a strong historical pedigree, for "the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels." As one early commentator put it, "the people may be deceived and reject the best citizens to their great injury." In the current era, when damaging falsehoods can spread widely in a matter of seconds, that risk is greater than ever before.

To be sure, there's an elephant in this particular room: President Donald Trump's frequent denunciations of the press as the "Enemy of the People." (It's best not to throw around the term "neo-Nazi," but it describes the president's language in this case.)

In light of the background set by Trump's dangerous rhetoric, this might not be the best time to call for reducing the constitutional protection given to speech. And in my view, Thomas goes too far in suggesting that states "are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm." There is a real danger that state officials, unenthusiastic about public criticism, would strike at the heart of freedom of speech.

But Thomas is right to point out that the constitutional foundations of New York Times v. Sullivan are not entirely firm. New and creative thinking, designed to protect people from having their reputations shattered, is very much in order.

Consistent with the national commitment to “uninhibited, robust, and wide-open” public discourse, it should be possible to provide remedies for people like Kathrine McKee — perhaps a right to retraction, perhaps appropriate (and appropriately limited) monetary compensation. It would be ironic if New York Times v. Sullivan itself had a chilling effect on serious discussions of reforms of that kind.

Cass Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

Scott D. Pierce: Actor Scott Foley is a different kind of action hero in ‘Whiskey Cavalier.’ He’s sensitive. Maybe even weepy.

Scott Foley watched a lot of TV when he was a kid. And, apparently, his taste in programs was a little unusual when he was 7. And 9. And 13.

Which explains why a guy whose resume includes “Scandal,” “Felicity” and “True Blood” is now starring in the action/spy adventure/romantic comedy “Whiskey Cavalier.”

“I wanted to do a show that reminded me of the shows that I grew up watching — 'Remington Steele,' 'Moonlighting,' 'Hart to Hart,' 'Simon & Simon,'” said the 46-year-old actor. “I miss those light, one-hour shows. And for me, I wouldn’t be interested in doing this if the comedy wasn’t there.”

Well, that's pretty much calling “Whiskey Cavalier” a throwback, so I don't have to.

Foley stars as the title character — it’s the code name of sensitive-but-tough FBI agent Will Chase, who is great at saving the world but devastated by a recent break-up with his girlfriend. He’s teamed with tough-as-nails CIA agent Francesca “Frankie” Trowbridge — code name Fiery Tribune (really). Chase and Trowbridge (Lauren Cohan, Maggie on “The Walking Dead”) clash, but they have great chemistry.

It's light and fun even when the fate of the world hangs in the balance.

What “Whiskey Cavalier” is not is original. But that doesn’t really matter. Executive producer Bill Lawrence (“Scrubs”) deemed it a “good-time popcorn ride,” and that pretty much nails it.

The show is gorgeous to look at; production was based in Prague, and some scenes were shot in other parts of Europe, Including a trip to Paris for the premiere.

It's not so much laugh-out-loud funny as it is charming. And there's nothing wrong with that.

The one unbelievable thing about “Whiskey Cavalier” is that it’s sort of fact-based. Creator/executive producer David Hemingson said the idea for the show came from a longtime friend — an FBI agent who called several years ago after working on a “terrorist attack in Saudi Arabia.”

The reason for the call? The FBI agent friend had just broken up with his girlfriend and asked Hemingson to “edit [his] playlist because the guys from the CIA think it’s way too heavy with The Smiths, and way too shoegazey.”

“And I’m thinking this guy [is] off saving the world, and he’s calling me about his breakup with his girlfriend,” Hemingson said. “He is an American hero. He is an amazing guy. And at the end of the day, what he wants is what we all want, which is love.”

That explains why one critic jokingly asked Foley if his character would be “less weepy after the first hour.”

Apparently not. “I have a very strong belief that it’s time to sort of reinvent that trope that is the leading man in an action series,” Foley said, adding it’s “much more relatable to have a character like this than someone sort of stoic.”

Whiskey Cavalier” premieres Sunday after the Oscars and the local news — at 10:35 p.m. on ABC/Channel 4. The same episode repeats Wednesday at 9 p.m. in the series’ regular time slot.

Provo City calls on Legislature to contribute $9 million towards expansion of its airport

Provo • City Council members this week unanimously declared their support for expanding the Provo Airport and are calling on the state Legislature to contribute $9 million toward the project.

The City council has at the same time pledged to secure $19 million for the expansion without raising taxes by delaying already planned construction projects and using those funds for the airport, said Deputy Mayor Issac Paxman.

In January, Paxman told The Tribune that the Provo Airport needs a second terminal if officials want to expand the facility and utilize an $8 million federal grant.

The grant was given to help construct a new tarmac, but to use the funds, airport officials would need to secure terminal funding, an estimated $14.5 million, Paxman said. The airport will forfeit the federal funds if it doesn’t use the money within a few years.

The Provo Airport’s sole terminal is about 6,000 square feet, but it could eventually be expanded to 70,000. Provo City already owns the land where the expansion would take place.

Paxman said the city’s long-term master plan calls for a 10-gate terminal. For now, officials are looking to build four gates and a baggage claim and security area large enough to service everything for a 10-gate terminal down the road.

“Our ask of the state is for them to realize the opportunity we have here and contribute,” Paxman said. “Utah County is projected to be the largest county in not too many decades. We’ve got the two largest universities in the state, we’ve got Sundance, Silicon Slopes — there are just a lot who would be served by this.”

The University of Utah’s Kem C. Gardner Policy Institute has projected that Utah County will add more than 1 million residents by 2065 to reach a population of 1.6 million, accounting for 37 percent of the state’s growth.

Paxman said legislators are listening and supportive, however funding for the airport is not currently on the Legislature’s top priority list.

He said he hopes lawmakers will act this session, but if they don’t Provo officials intend to keep trying and carry the momentum over into the next session.

“Economically, studies have shown that for every daily flight at an airport of this nature you are looking at over a $10 million dollar economic impact on the surrounding area annually,” Paxman said. “As we add more flights, there will be a great economic impact to the area and that is good for the whole state.”

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