Neither Simberg nor Steyn was accusing Mann of any crime—the reference to Sandusky was a joke prompted by the fact that Sandusky and Mann were employed by the same university. Yet Mann took the unusual step of suing Steyn, National Review, and CEI for libel.
Since New York Times Co. v. Sullivan was decided in 1964, public figures seeking to win defamation suits have been required to prove defendants acted with “actual malice”—intent to defame or reckless disregard for the truth.
If the Supreme Court did not believe in 1988 that Larry Flint’s parody interview of Jerry Falwell, in which the late evangelist confessed to losing his virginity to his own mother in an outhouse, constituted libel, it is hard to imagine that Mann thinks he can do anything more than intimidate Steyn and Simberg with court filings and legal fees.
Alas, as I wrote here, it is in fact very easy to imagine Mann winning.
The Supreme Court of today is not the same Supreme Court that ruled on Hustler, for one thing; for another, the West is more comfortable with censorship and less familiar with basic principles of free speech.
In 1988, the Court would have been made up of people who still possessed a residual reverence for “defending to the death…” and all that.
Ironically, 1988 was almost exactly the time that political correctness was in its infancy.
Hustler v. Falwell may have been the last and loudest gasp of the traditional (American) understanding of free speech.
In 2014, p.c. is well established as received liberal wisdom. This can’t help but impact the judges’ worldview.