In using Google to research the law governing statements
of opinion, so as to make sure my post
Who's Really to Blame for NOLA? was constitutionally protected
opinion, I ran across a Washington Monthly column by Amy Sullivan, in which she
opines:
In 1984, he and Evans were sued
by a New York University professor after Novak penned a column arguing
that the professor should not be made chair of the University of
Maryland's political science department; the U.S. Court of
Appeals decided that opinion columnists?as opposed to reporters?had
First Amendment rights to use ?reckless hyperbole,? as none
other than Robert Bork's concurring opinion put it.
I went to
Westlaw and pulled up the opinion - Ollman v. Evans, 750 F.2d 970 (D.C.
Cir. 1984), cert. denied, 471 U.S. 1127 (1985) - and to my surprise the
phrase "reckless hyperbole" appears nowhere in it. It's not
in Bork's concurrence and it's not in either the majority or the
dissent. Nowhere. Phrases like "reckless disregard for the
truth" and "rhetorical hyperbole" do appear in the
opinion, but mainly in quotations from or descriptions of the relevant
legal standards.
Update: The closest thing I can
find to a characterization of Novak's work using either of the words in
question in the majority opinion is the following statement: "the
charge of 'no status' in this context would plainly appear to the
average reader to be 'rhetorical hyperbole' within the meaning of
Greenbelt." (P.990) I copied Bork's concurrence, from which
Sullivan claims to be quoting the words "reckless hyperbole,"
into Word and searched it first for the word "reckless." That
word appears in the following context:
The United States has just been
through an intense political campaign. In this highly charged
atmosphere, many cruel and damaging things were said about various
candidates for major political offices. Some of the statements made may
well meet the law's standards for actual malice--reckless
disregard for the truth of the matter asserted. Examples will
no doubt spring to mind. Yet if the statement is of the sort that we
recognize as rhetorical hyperbole, we would be
astonished and highly disapproving if the defamed candidate brought an
action for libel.
Note that the reference here is not to statements by Novak, but
generically to statements made by pundits generally in a then-recent
political campaign.
Then I searched it for the word
hyperbole, which does appear several times and in some cases as a
characterization of Novak's work. Bork used the phrase "rhetorical
hyperbole," for example, in at least one place to characterize the
Novak column, stating:
... the statement challenged in this lawsuit,
in terms of the policies of the first amendment, is functionally more
like an "opinion" than a "fact" and should not be
actionable. It thus falls within the category the Supreme Court calls
"rhetorical hyperbole." (P. 994)
Notice that Bork here is invoking that phrase
because it is the relevant legal standard - under the Supreme Court
precedents to which Bork refers, "rhetorical hyperbole" is
not actionable. Later he explains that the Novak column
is:
...the kind of hyperbole that must be accepted in the rough and
tumble of political argument. (P.998)
And so on. Nowhere, however, did Bork use the
more damning phrase quoted by Sullivan - "reckless hyperbole"
- either to characterize Novak's work or for any other purpose. The
phrase simply doesn't appear in his opinion.
So that you can check my work, I
found the text of the opinion online here.
In case Sullivan had simply
misidentified the case from which she pulled the quote, I also searched
the prior district court and circuit court opinions, as well as Rehnquist's dissent from the Supreme Court's
denial of cert. It's not there in any of them. Finally, just to make
darn sure I hadn't missed anything, I searched Westlaw's combined state
and federal case databases for the phrase "reckless
hyperbole," and found only a single 1968 California case, which
didn't remotely have anything to do with Bob Novak.
This may seem like a trivial
error, but consider two points. First, Sullivan seemingly wants to
portray Novak in a negative light:
He is not without the charm that
serves to temper his reputation as the ?Prince of Darkness.? (?I think
he gave himself that nickname,? one of his colleagues later told me.)
But it's a forced charm?I've read most of Novak's lines in previous
profiles of the guy. I'm reminded of the description of Novak,
sometimes attributed to Michael Kinsley, which a number of sources
volunteered: ?Beneath the asshole is a very decent guy, and beneath the
very decent guy is an asshole.?
In my opinion, the bogus phrase
"reckless hyperbole" could be part of that effort, seeking to
imply that Novak engages in the use of "reckless hyperbole,"
and perhaps even to imply that the Court thought so to. It's far
punchier than the phrases Bork actually used. The actual words used
would not have helped advance Sullivan's argument nearly as well.
Second, in a column that blasts
Novak repeatedly for lapses and bad judgment, it's troubling to find a
bogus quote.
In my humble opinion, Sullivan
needs to tell us where that quote came from and why she used it.
Update: Alert reader Adam
Schulman sent me the link to this 2004 blog post:
Amazingly, a Google search on
"reckless hyperbole" bork returns only Sullivan's
article.
Adam
continues:
Not being much of a fan of Robert Novak, Mr. Smith appears not to
have pursued the implications of his discovery--leaving that thankless
task to you.
This suggested another line of inquiry. So I Googled the
following: "reckless hyperbole"
novak. It kicks up 48 hits, almost all reprinting Sullivan's
article and/or using portions of her article to bash Novak. Googling
"reckless hyperbole"
bork turns up 38 hits, mostly of the same sort as the prior
search. Is this how urban legends start?
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