It was hard not to wince when reading the New York Times piece Tuesday about Judge John G. Roberts Jr.'s unpleasant comments about the press. They came, the paper reported, in a 30-year-old critique of the Times v Sullivan case - a bedrock of libel law today, and one requires that damagingly false statements about public officials be made with actual malice. (That means the reporter knew the words were false or had reckless disregard for the truth in order for them to be libelous.)
The Times reported Roberts writing that "any assumption that media coverage of government institutions and public officials is the centerpiece of effective democracy is misplaced." In fact, "by crowning the media with virtual absolute immunity for falsely assailing public officials," the Sullivan ruling "obstructs the ability of the president and other public officials to recruit talented and loyal supporters."
The critique was vigorous, brilliantly written and informed by a deep hostility toward the press, said Anthony Lewis, the author of "Make No Law: The Sullivan Case and the First Amendment" and a former columnist for The New York Times.
"It's quite an astonishing document," Mr. Lewis said of the critique. "He's not a fan of the press. He speaks of 'the zeal and insouciance with which the mass media assails public officials.' "
Less wincing today. Turns out the memo was not written by Roberts. A bylined correction reports Bruce Fein, a former Reagan Administration lawyer owning up to the words. The critique wound up in Roberts papers released by the White House.