Obama Allowed on ‘Between Two Ferns’ Through Reinterpreted First Amendment


This week is the 50th anniversary of the Supreme Court ruling that made the First Amendment into what the nation recognizes, and takes full advantage of, today. Also this week, Zach Galifianakis hosted President Obama on Between Two Ferns and to the commander-in-chief’s face brought up his birth certificate, drones, and spying, among other sensitive topics just in the name of comedy. Each subject was an issue the public has criticized in his administration. The Between Two Ferns appearance allowed jokes about President Obama to be featured thanks to some open-minded legislation in 1960s that brought the new interpretation of the First Amendment back to the way it was intended.

The ruling dealt with libels, or published statements that defame or are damaging to a person and their reputation. Currently, there are more restrictions in place for taking a person or business to court over this allegation, but the old libel laws left openings for newspapers being sued on small, sometimes honest mistakes. This week in 1964, the Supreme Court ruled in favor of a more liberal interpretation of the First Amendment, which previously had only been seen as extending to the truth. Meaning, even small errors could cause large consequences.

The ruling began in the lower courts of Alabama when an advertisement ran in The New York Times. It was only printed once, featuring critical commentary about how aggressively officials in the South were handling civil rights protests. There were small errors in the advertisement, entitled “Heed Their Rising Voices,” however, it mentioned no names and acted as a vague disapproval, not an attack on an individual.

Sullivan, the Montgomery Public Safety Commissioner, took it personally and sued the Times when they did not publicly retract it. The stance he took was that it was defaming to him and since there were errors, the Times could not claim that “truth” was enough of a defense. The jury took little time before they awarded him with $500,000, which would today translate to $2.5 million.

Alleging libel against newspapers, using it as a weapon to shape what they could cover, was quickly gaining popularity. That fine could be crippling to the publishers, even New York Times, and be sure newspapers big and small were not covering civil rights protests. The reinterpreted First Amendment still allows court cases to be brought against published defamation and lies, when appropriate, but no longer could interfere with lighthearted jokes at President Obama such as Between Two Ferns featured.

Back when the case was held, though, the press was closely monitored because the nation was divided on civil rights issues but those in charge needed everyone’s support. The South, and all officials running it, was fighting hard to keep national opinion up. And by 1964, few Northerners were on the side of the white pro-segregationists when the media was showing marches being hosed by firefighters.

Continuing the case, the New York Times appealed, bringing the matter before the Supreme Court. One of the main concerns was the “self-censorship” the reporters would inflict upon themselves when their stories would cost the newspaper so much. This would mean the south would not be cast in such a negative light, however the Supreme Court quickly realized such use of the First Amendment was not the intention behind writing it.

The new interpretation imposed was that “actual malice” would be needed to be seen from the publisher if a politician or official claimed libel. From then on, proof was needed that the publisher knew the material to be untrue before printing, or they demonstrated “reckless disregard” for the truth. Which allows a much more open discussion and lets reporters ask much more probing questions. As Justice William J. Brennan, writer of the Court opinion in the case, said, “debate on public issues should be uninhibited, robust, and wide-open…” and sometimes will include “unpleasantly sharp attacks on government and public officials.”

The First Amendment states there cannot be a law “abridging the freedom of speech or of the press.” Brennan added that “erroneous statement is inevitable in free debate” and that such errors “must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive.’”

Previous decades have befitted as much as this one. Several have doubted that publishing the Pentagon Papers, and the articles ran saying President Johnson had been lying, would never have been allowed. Or if they were, it could have been followed by many more consequences. Later, they allowed a real investigation into Watergate that was likely made possible by NYT vs. Sullivan ruling.

The presidential appearance on the show went well and accomplished its purpose of telling the younger demographic about Affordable Care Act. President Obama explained how to sign up and the benefits while Galifianakis let out exasperated sighs and urged him to get his “plug” over with. It is interesting that the 50th anniversary lines up with his appearance on the show. This episode of Between Two Ferns was enabled by the reinterpretation of freedom of speech in the First Amendment, which allows Galifianakis to get a few digs in with President Obama. And he played his part well, equally critical of Galifianakis. He scoffed at Galifianakis’ performances in The Hangover series and President Obama noted his complete surprise when he heard the web series actually had viewers.

By Whitney Hudson
On Twitter: @Whitney_etc


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