Make space for public lands, right to recreate

Beaver Dam State Park

Different people feel differently the pinch of the federal government shutdown in the United States. 

(All photos from Nevada in August 2025, except T.R. Birthplace; all photos by RJ Peltz-Steele, CC BY-NC-SA 4.0.) 

I'm fortunate not to depend on the federal government for my paycheck. I'm saddened for the steadfast government clerk trying to make ends meet, and nothing I write here means to diminish that anxiety. Professionally, I've been disappointed to see the work of the federal Freedom of Information Act Advisory Committee paralyzed. The committee comprises some heroic public servants in federal agencies.

Theodore Roosevelt Birthplace
National Historic Site,
N.Y., June 2025

On the purely personal front, what hits me hardest is to see the closure of public lands, such as parks and museums. I treasure these places where the public can find education, recreation, and respite. Maybe because I'm an academic, I don't much distinguish among the three. So much of our public dialog in America is preoccupied with how we work. But it's on public lands that Americans live.

As a libertarian, I'm wary of public lands. But I'm not a great, or "pure" libertarian. I have always been what I call a "moderate" libertarian—I've been called a "bad" libertarian—because I do not believe that the private sector is the answer to all problems. I rather believe that being a libertarian is about being thoughtful: making an informed decision at the threshold of any given problem as to whether the problem is better addressed by society as a composition of independent private actors—the presumption—or by society as a collective.

A vexing problem for libertarians is the tragedy of the commons, which arises when competing private individuals, acting in their own interests, will intolerably deplete a resource that the society as a collective requires. The environment is often raised as paradigmatic example. Any one private actor is incentivized only to cut down the trees, or use fresh water. But society needs there to be trees and fresh water, saved from depletion.

Selected public lands in Nevada, besides state parks

American society is heavy on libertarianism—the "Wild West" ethos has long outlived western settlement—but maintains its own delicate balance of liberty and collectivism. The duplexity was embodied by President Theodore Roosevelt, whose reconstructed childhood home I visited in New York in the summer. Roosevelt, a nature enthusiast, was a rugged individualist, and also is credited with founding the very notion of U.S. national parks, which today are widely regarded as a crown jewel of federal government purpose.

All 27 Nevada state parks

Pure libertarians respond to the tragedy of the commons by insisting that the private sector can handle it. The tree cutters ultimately will stop cutting trees, or farm more trees, because they want to keep cutting trees. Water consumers will not use all of the water, because eventually, they will suffer thirst. A slightly watered down take on pure libertarianism makes room for non-governmental public interest organizations to manage collective resources. But there's no place for government.

My Nevada drive
(excluding two national parks
I visited previously)

I find these responses strained and unconvincing. If we destroy the glaciers of Glacier National Park because corporations want to commodify the pure waters, or because wealthy people want to land helicopters on them and take home souvenirs, there's no restoring a natural glory that took 170 million years to form.

If the planet bakes while we wait for the trees to regrow, then the private-sector experiment has failed in a profound and irreversible way. If we run out of fresh water while we wait for innovation to perfect desalinization, then millions might die, and only a few persons with inherited wealth might survive. I wouldn't call that a socially optimal outcome. 

The problem with the purely individualist approach is that it assumes infinite time, perpetual capacity for resource renewal, and indifference to human suffering in the meantime. That sounds to me like a recipe for humanity's self-extinction.

"Citizen Science Station,"
Tule Springs Fossil Beds National Monument

Public lands are an easy call for me, even as a libertarian. I would like to live in a world in which everyone has access to recreational opportunities, and everyone has a chance to see the inexplicable glory of the creation that fills the earth.

Writing about nuclear weapons in September, I mentioned the time I spent in the summer exploring public lands in Nevada. I visited all 27 Nevada state parks, and a great many other public lands as well: local, state, and federal. Local and state parks fortunately carry on while the federal government is shut down.

I am grateful for all these places, local, state, and federal, and the people who steward them.

One fun thing I happened upon in Nevada was a "Citizen Science Station" at the Tule Springs Fossil Beds National Monument. There, a bracket is mounted on a pole, prepared to receive a smartphone, so that passersby can take a photograph of the terrain. Images can then be uploaded to Chronolog.io, which partners with the National Park Service. The collected images are then compiled into a time lapse series (below, at end), which users can enjoy and study. I contributed an image (Aug. 7, 2025).

Notwithstanding so much natural beauty and the participatory excitement of the Citizen Science Station, I found memorable something else I saw at Tule Springs, a different kind of socially minded contribution from the private sector:

Go see the natural wonders of Nevada, including fossils and fossil beds. See them before the pure libertarians cart them off to private museums, where no doubt they'll be best cared for.

Durango Loop Temporary Trail at Chronolog

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Nuclear arms, testing still imperil life on earth

The August Atlantic published a few select photos of nuclear tests by military photographers in Nevada amid a series of stories on nuclear arms.

Nuclear power plants aim to fire back up around the country and around the world. That's causing those of us who remember The China Syndrome and The Day After, not to mention real-life Three Mile Island and Chernobyl, to feel anxious. 

Our anxiety is fed by the additionally burgeoning risk of a new nuclear arms race. Like many people, I, and apparently the editors of The Atlantic, are thinking back on the Cold War, when a nuclear holocaust seemed about as likely as not.

I'll republish here in low resolution four photos The Atlantic featured from the era of above-ground nuclear testing. The photos are in public domain, as they are in the possession of the National Archives and Records Administration (NARA)—collaterally, a reminder of NARA's importance amid its recent, inimical politicization. The photos were published previously in a military-photo compilation edited by Michael Light, 100 Suns: 1945-1962 (2003) (cover inset above).

 

The Atlantic issue, captioned "Eighty Years on the Edge" (cover inset at left), is well worth examining in whole. Coverage ranged from the historical to the contemporary. Inter alia, Noah Hawley traced the origin of Kurt Vonnegut's Cat's Cradle (1963) to the advent of the atomic bomb. And Ross Andersen explained how American absence in world leadership is setting the stage for the new nuclear arms race. 

I spent two weeks in Nevada this summer and saw that its atomic history persists, for better and for worse. 

To my surprise, there is an active program monitoring ongoing radiological risk, and a federal program only recently ended to compensate people for radiation exposure that resulted in illness. 

The Radiation Exposure and Compensation Act of 1990 expired in 2024 and afforded modest compensation to persons made ill, mostly by cancers. Onsite participants in atmospheric tests were entitled to $75,000; "downwinders" of atmospheric tests, present in specified areas near the Nevada Test Site, now called the Nevada National Security Site (NNSS), were entitled to $50,000; and uranium miners working from 1942 to 1971 were entitled to $100,000. I picked up a pamphlet from an education program of the School of Medicine at the University of Nevada Las Vegas that encouraged claimants (pictured below).

The Desert Research Institute of the Nevada System of Higher Education, in collaboration with the National Nuclear Security Administration Nevada Field Office of the U.S. Department of Energy, maintains a network of air and groundwater monitoring stations surrounding the NNSS. The NNSS describes itself today as a government "enterprise of multi-mission, high-hazard experimentation facilities." The Community Environmental Monitoring Program watches for "manmade radioactivity that could result from NNSS activities" and publishes its data online with an interactive map. At right is a map of CEMP monitoring stations, and below (RJ Peltz-Steele CC BY-NC-SA 4.0), is one of two CEMP monitoring stations at Tonopah, Nevada.

Though nuclear testing has abated above ground and below, government test sites of all kinds abound still in Nevada. The sites encompass vast swaths of desert, and active sites are well cordoned off with fences and warning signs—including but far from limited to the famous Area 51. (All below photos, RJ Peltz-Steele CC BY-NC-SA 4.0.) 

A CEMP station in Tonopah, Nevada, monitors air quality and dispenses pamphlets for curious onlookers.

The U.S. Department of Energy shares and leases the Tonopah Test Range ("Area 52") with the Defense Department and contractors.

Signs warn of a U.S. Air Force test site between "Extraterrestrial Highway" Nevada Route 375 and Groom Lake "Area 51."

The U.S. Bureau of Land Management now preserves Lunar Crater, where astronauts once practiced moon landing.

Still operational, a small U.S. Defense Department installation near Lunar Crater affords a staging area.

Displays at the Nevada State Museum and even a bawdy show at the Venetian in Las Vegas highlight Nevada's nuclear history.

"Earth Station," on the Extraterrestrial Highway in Hiko, Nevada, near Area 51, stocks alien-themed souvenirs.

Court's pass on Wynn bid to revisit 'actual malice' makes sense, but standard still fuels misinformation

Wynn operates the Encore Casino in Everett, Mass.,
since a dust-up with authorities over ownership.
Holiday Point via Flickr CC BY 2.0

The U.S. Supreme Court declined to hear casino mogul Steve Wynn's bid to overturn the New York Times v. Sullivan "actual malice" standard, despite the known appetite of some justices to revisit the 1964 precedent.

The outcome is not a surprise and probably for the best, because Wynn had lousy facts to support his argument. Unfortunately, Sullivan's complicity in our present misinformation crisis remains real and ever more problematic. Cases such as Wynn's undermine legitimate recognition of the dysfunction Sullivan has wrought.

I've written and spoken before, and will not here belabor, my ardent opposition to the Sullivan standard, which requires public figures to demonstrate, even prove—usually upon filing a complaint, with no access to evidence in the possession of the defense—that the defendant subjectively knew of the falsity of the publication, or at least that there's a smoking gun disproving the defendant's denial.

Sullivan came about with good intentions. In a nutshell, the Supreme Court was determined to enforce Brown v. Board (U.S. 1954) and bring about the civil rights order required by the Reconstruction Amendments, specifically in Sullivan by heading off southern officials' weaponization of tort law. But the wide berth that the Court cut for freedom of speech vis-à-vis the competing values of personal reputation and human dignity was cemented in constitutional law, and now we face the consequences of an irremediable imbalance.

Steve Wynn
Sarah Gerke via Flickr CC BY-NC-ND 2.0

In Wynn's case, defendant Associated Press surfaced two complaints of sexual assault filed with police against Wynn in the 1970s. The reporting occurred in the context of contemporary allegations of a pattern of misconduct, which Wynn roundly denies. The AP report probably falls within the common law "fair report" privilege, which shields from liability the re-publisher of allegations in official documents. The advanced age of the reports raises a thin question on the "fair" prong of the analysis, and the degree to which the privilege has been constitutionalized is debatable. But those issues are neither here nor there, for the courts in the Nevada lawsuit never got that far.

Wynn's suit was dismissed under the Nevada anti-SLAPP law because, the Nevada Supreme Court affirmed, Wynn failed to demonstrate sufficient proof of actual malice in his pleading. Wynn offered little more in the way of allegation than that the police complaints were "implausible," so should have been disbelieved—hardly that they were contradicted by evidence in the defendant's possession. There was an allegation that the AP reporter regarded a complainant against Wynn as "'crazy'"—but, again, that hardly equates to "lying." Anyway, were the fair report privilege eventually implicated, the salient fact would be the truthful rendition of the reports, not the truth of their underlying contents.

Besides bemoaning Sullivan, I have lamented at length on the ill wisdom of anti-SLAPP laws, such as they have been adopted throughout the United States, another song of woe I won't here reiterate. I also have acknowledged consistently that anti-SLAPP works well when it works well (and could work better). Wynn's case proves both points. He didn't get his day in court, nor hardly a hearing. But I suspect his ability to prosecute all the way to Washington has more to do with his wealth than with the merits of his claim.

Wynn's appeal strategy was principally to attack Sullivan head on. Wynn knows, or his lawyers know, that near immunity for false, even ludicrous, allegations against public figures has everything to do with the vigor of misinformation circulating in the American marketplace of ideas. But Wynn was ill able to illustrate an injustice against a meritorious cause, the kind of fertile soil one needs to nurture willingness to overturn a 60-year-old, civil rights-era precedent.

For some further context of judicial dissatisfaction with Sullivan, here's an excerpt from my 2 Tortz: A Study of American Tort Law (Lulu 2024 rev. ed.), on "Reconsidering Sullivan."

Doubts about sacrosanct Sullivan were once uttered at one’s own risk in legal academic circles. But U.S. Supreme Court Justice Clarence Thomas legitimized debate with a concurrence in denial of certiorari in McKee v. Cosby (U.S. 2019). An actress, McKee, in 2014, publicly accused actor-comedian Bill Cosby of rape 40 years earlier. A letter from Cosby’s attorney to mass media attacked McKee’s credibility, but did not specifically deny the asserted facts of the encounter. McKee alleged defamation, and the courts concluded that the letter stated only unverifiable opinion.

Media advocates certainly hoped that Thomas’s commentary was a one-off. It was not. Two years later, Justices Thomas and Neil Gorsuch dissented from denial of certiorari in Berisha v. Lawson (U.S. 2021).... Earlier the same year, highly regarded U.S. Circuit Judge Laurence Silberman had joined Thomas’s call, dissenting in Tah v. Global Witness Publishing (D.C. Cir. 2021) (involving accusation of bribery against international human rights organization). A likeminded concurrence by Florida appellate Judge Bradford L. Thomas followed in Mastandrea v. Snow (Fla. Dist. Ct. App. 2022) (involving accusation city official was “on the take” in development matter). And that same year, the Journal of Free Speech Law published Professor David McGowan’s A Bipartisan Case Against New York Times v. Sullivan (2022). Justice Thomas reiterated his “view that we should reconsider the actual-malice standard,” Blankenship v. NBCUniversal, LLC (U.S. 2023) (Thomas, J., concurring in denial of certiorari), thrice more in 2022 and 2023.

Mass-media misinformation during the Donald J. Trump Presidency, contributing to the January 6, 2021, attack on the U.S. Capitol, shook the confidence in Sullivan even of some devoted liberal stalwarts in the academy. On the one hand, President Trump had used defamation, among other legal tools, to attack critics. He was accused of weaponizing transaction costs, but Sullivan remained an important substantive bulwark. On the other hand, Trump evaded “Me Too” accountability not only with denials, like Cosby, but with ruthless accusations of lying, which loyal political supporters embraced and amplified.

The busy federal court for the Southern District of New York has seen its share of politically charged defamation litigation. That’s where writer E. Jeanne Carroll, availing of a New York look-back statute, brought two suits against President Trump, alleging sexual battery in the 1990s and defamation for calling her claims “a complete con job,” “a hoax” and “a lie.” Juries awarded Carroll in excess of $80 million for sexual battery and defamation, despite the actual malice standard. Trump appealed. Do the verdicts show that Sullivan works? In 2022, Sarah Palin lost a defamation claim in S.D.N.Y. against The New York Times over a staff editorial that blamed her in part for the mass shooting that wounded U.S. Rep. Gabby Giffords. Exceptionally against the usual no-actual-malice motion to dismiss, Palin had won discovery. And discovery revealed some ethically problematic sloppiness behind the scenes at the Times. Nevertheless, bad journalism is not actual malice, and the court and jury so concluded. Palin’s appeal from the Second Circuit was seen widely as a contender to draw Sullivan reconsideration, but the Court passed.

Whether a function of social media, declining civility, or partisan extremism, data show that defamation litigation is up. And courts are not as quick as they once were to dismiss for a plaintiff’s inability to prove actual malice. Still, the public-plaintiff win remains a rarity, especially for the public official or public figure who doesn’t have the resources to go to the mat.

The case is Wynn v. Associated Press, No. 24-829 (U.S. Mar. 24, 2025).