William Faulkner, the great American writer, is famously and perhaps incorrectly attributed the quote, “To understand the world, you must first understand a place like Mississippi.” My knowledge of the state is mostly based on the wonderful, bright, and soulful individuals from the state whom I’ve worked with over the years. That is why it’s so troubling to see Mississippi’s name dragged through the proverbial mud because of a deeply troubling First Amendment encroachment that occurred last week. The fight, leading to a legal challenge, is over an editorial a local newspaper issued criticizing a Mississippi city council’s action.
The facts of the relevant case are fairly straightforward. The city council of Clarksdale, with a population of approximately 15,000, objected to the content of an editorial in the Clarksdale Press Register. The editorial in question took issue with the city’s attempt to pass tax increases on certain products (i.e., alcohol, tobacco, and marijuana) without properly notifying the local media prior to the council’s action – as required by state law.
More specifically, the text accused the council of wanting to spend time on a junket in the capital city of Jackson lobbying for its tax increases. Furthermore – and this is what seems to have pushed the council off the ledge – it asked, “Have commissioners or the mayor gotten kick-back from the community?” Offended by these supposed untrue or misinterpreted accusations, the council filed a defamation suit (libel) against the newspaper, arguing that the editorial hurt its ability to lobby in favor of its tax increases.
Adding to the circumstances, Hinds County Chancery Court Judge Crystal Wise Martin reviewed the city’s filing and quickly ordered the newspaper to remove the column from its website and make it inaccessible to the public. In her written decision, the judge declared, “The injury in this case is defamation against public figures through actual malice in reckless disregard of the truth and interferes with their legitimate function to advocate for legislation they believe would help their municipality during this current legislative cycle.”
The Mississippi case is very unusual for a number of reasons. First, the commissioners and the mayor must have very thin skin. Having previously worked in public policy for over 30 years, it was not unusual for me to see editorials written against policymakers for numerous reasons. Some of these were quite colorful and made many wild accusations, innuendo, and provoking comments. That goes with the territory for public officials. Yet the Clarksdale council appears to have gotten its feelings hurt even though it was its own staff that messed up by failing to notify the media and thereby triggering the editorial. But it raises interesting issues, like how often has staff failed to notify the media? Does it only happen when the city council tries to raise taxes? Given this procedural foul, why didn’t the council hold another meeting with full notice and warning to the press?
Second, the city council’s argument that the editorial hurt its ability to lobby seems empty of merit. The issue seems to rest on the assumption that state legislators wouldn’t take the city officials seriously or give their idea the time of day after reading the editorial. That’s one powerful opinion piece. The assertion also runs counter to a statement in the editorial that “a sin tax that would pay police to fight crime in Clarksdale is a good idea.” When it came to the final version of the council’s action, the purpose seems to have shifted and broadened substantially, raising some of the paper’s concerns.
Third, the use of the term “kick-back” seems quite clear in the editorial’s text. The paper’s management indicated that “kick-back” is meant to be read like “push-back,” asking whether the community was outraged by tax increases being sought by the council. Even if a reader were to interpret the term “kick-back” to imply impropriety or corruption, is it not reasonable to ask whether the there was any financial consideration given by any entity that influenced the council’s decision making? Doesn’t the public have a right to know if other parties paid off the mayor or council to impose taxes on these products? Would the new funding raised be used solely to pay police or go to other unrelated functions?
Fourth, it is hard to detect the supposed malice as referenced by Judge Martin. Perhaps the newspaper and city council are sworn, mortal enemies. But that is something that would need to come out as part of a hearing with actual evidence that could be challenged. Even if animosity or hatred between the parties could be established, that doesn’t mean – in and of itself – that this editorial furthered any disagreements. The current documentation doesn’t appear to support this. Is it possible to read malice in the lines of the editorial? If so, the judge must have better glasses than most.
Lastly and perhaps most important, the timing and outcome of the judge’s decision doesn’t add up. How does the judge make a finding of libel – an admitted exception to the First Amendment – in such a short amount of time after the council filed its suit and without a hearing? While the judge in this case appears to use many of the “magic words” outlined by the U.S. Supreme Court precedent in a public-official libel finding (New York Times v. Sullivan, 1964), what appears missing is the underlying examination of existing case law and careful analysis of the facts.
Given the interaction with free speech and free press protections, the bar for proving libel against public officials is exceptionally high. Indeed, we are left with a terse temporary restraining order until a hearing is conducted. If anyone was worried about a stray editorial affecting the outcome, it’s hard to see how Mississippi legislators could be favorable toward the city after it kicked the proverbial hornet’s nest with its lawsuit, followed by Judge Martin’s ruling.
William Faulkner’s complex view of Mississippi is renowned and maybe the state has wonderful upsides, but they’re hard to see at a moment when certain elected officials attempt to degrade fundamental protections for Americans residing in the Magnolia State. Perhaps Mississippians could learn from the motto of New Hampshire: Live Free or Die.
Update. After a weekend of criticism and further negative public attention, the whole issue seems to have resolved itself. On Monday, Feb. 24, 2025, the city council requested that its lawsuit be withdrawn. Dispute remains over whether the local newspaper agreed to run an apology or a clarifying editorial in exchange for the case being dismissed.
Michael O’Rielly is a Senior Fellow at The Media Institute and member of the Institute’s First Amendment Advisory Council. A former Commissioner of the Federal Communications Commission, he is President of MPO Consulting, Inc., based in Arlington, Va.