Freedom of Speech

Justice Thomas’s Skepticism of New York Times v. Sullivan

First Amendment limitations on libel and other torts are complicated

|The Volokh Conspiracy |

In a separate opinion today, Justice Clarence Thomas argued that the Supreme Court should reconsider one of its most famous First Amendment precedents, New York Times v. Sullivan (which holds that the First Amendment requires defamation claims against public figures to demonstrate "'actual malice'—that is … knowledge that [the statement] was false or … reckless disregard of whether it was false or not").

I've seen some unduly dismissive reactions already, so a few thoughts:

1. Beware the reductio ad Trump. It's true that candidate/President Trump has called for "open[ing] up our libel laws," and it's true that reconsidering New York Times v. Sullivan could lead to opening up our libel laws but it doesn't follow that it's a bad and wrong thing to do.

2. Overturning or modifying the New York Times v. Sullivan standard doesn't have to mean imposing no First Amendment scrutiny whatsoever on private law tort claims involving speech. For instance, co-blogger Eugene Volokh has documented the widespread presence of free speech principles in private law claims shortly after the founding. Justice Thomas might be open to recovering and articulating these principles even if they fall short of the rule adopted in Sullivan.

3. The question of how exactly to apply the First Amendment to private law claims is genuninely hard. Across property law, libel law, and other torts, I don't think the Court has yet found a consistent approach. (You can find the start of such a theory in this recent lecture by Richard Epstein, which, yes, also critiizes New York Times v. Sullivan as a "constitutional mistake.")

4. If one is results-oriented about these things, there were other paths to the result in New York Times v. Sullivan. For instance, around the same time, the Fifth Circuit had limited the ability of southern states to take jurisdiction over libel claims against the New York Times. I am not saying that was right, but if we are reconsidering things, there is a lot to reconsider.

5. I don't think it's that likely to happen, but this isn't a crazy position.

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104 responses to “Justice Thomas’s Skepticism of New York Times v. Sullivan

  1. Donald Trump has held very few consistent positions during his adult life. Abortion, gay rights, etc.. But one where he HAS been completely consistent is in regards to libel and slander…Trump has always always wanted to make it easier for famous people to be able to sue those who say mean things about him.

    I find his position not the slightest bit surprising, and nor should anyone else (regardless of how you feel about the current state of laws re public figures and mean things said about them).

    1. But this has little to do with Trump himself, and any results of any changes to these laws won’t even take place until he’s out of office. See point #1.

    2. “Mean things” and slander are two different thing.

      Mean things = “Trump is morally unfit for office” = opinion, protected by First Amendment.

      Slander = “Trump conspired with Putin to fix the 2016 election” = statement of fact, possibly slanderous.

      1. Then there’s a third level; derangement

        “Trump is literally Hitler” = concrete evidence of serious retardation and/or mental illness; grounds for commitment to an institution for the bewildered.

        1. Yeah, everybody I know says Trump is literally Hitler. Or as we say here on the opposite world I inhabit with most of the human race, nobody.

          Tell me, was “Obama’s birth certificate is phony” not (at least) equally compelling grounds for commitment to an institution for the bewildered? Because a lot more people said that than say “Trump is literally Hitler.” One of them, in fact, rode the wave of that particular derangement straight into the White House.

    3. I would have no idea why the guy who is routinely a target of libel and slander by the fake news media would dare to advocate for a change in the law when it comes to libel and slander. Gees….big surprise there…

      1. I wonder why a guy with thousands of documented lies would advocate “looser” laws with respect to defamation . . . until I remember that some people are reckless and have profoundly gullible followers.

        1. Yup. The underlying case here suggests that Thomas’s position would open Trump to lots of legal exposure. It’s hard to see how this helps Trump.

          1. Especially since right now he’s defending himself in a defamation lawsuit.

          2. Is it really that hard? How about this : Trump has a history of using lawsuits as a cudgel, even in cases where his actions were highly questionable. USA Today did an analysis in 2016 and found that Trump was involved in more legal disputes than prominent real estate figures DeBartolo Jr., Bren, Ross, Zell, and Silverstein all combined. Trump defaults on a loan to Deutsche Bank and then sues the bank he stiffed. Sleazy as that sounds, it’s SOP for DJT.

            And the man likes his alternate realities. One day into his presidency and he’d already lied about the popular vote, despite fully certified numbers, and his inauguration crowd, despite published aerial photos. Why wouldn’t he sue to “prove” these alternate realities? Remember, Trump doesn’t do long-term; he’s an immediate gratification type. He wouldn’t care if the suit was baseless.

            And he loves to make the threat, doesn’t he? Here’s 45 times he’s threatened lawsuits, even while seldom (if ever) identifying any factual basis for the threat : http://trump-clock.com/

            And the poor little baby is so very thin skinned. Most recently it was threats of “retribution” over a comedy skit no less…

            1. Ye, regardless of anything relevent to this piece, the man is so thin-skinned he could sell advertising on his liver.

              1. Purple,
                Did you make up that line? Genuinely funny…I think lots of us are gonna totally steal it from you.

                1. Yeah, couple of years ago. Seemed an obvious early trait. I used lungs at first but
                  frankly, liver is just a funnier word. [ba-bam]

                  I hereby release it to the public domain, to be freely used wherever thin-skinned celebrities may flounce and preen.

                  1. Excellent. I actually tried Googling the phrase in various forms to see it was a pre-existing meme, but found nothing. Maybe you’re started on the path to internet immortality…

            2. Trump defaults on a loan to Deutsche Bank and then sues the bank he stiffed. Sleazy as that sounds, it’s SOP for DJT.

              Its fairly standard procedure to file counterclaims in most any lawsuit – so dont read too much in DJT countersuit

              1. Do you genuinely doubt that Donald J. Trump is especially litigious?

                Half-educated, bigoted, and backward is no way to go through life, Joe. I still have hope that you could improve.

              2. “Its fairly standard procedure to file counterclaims in most any lawsuit…”

                Donald Trump initiated the lawsuit.

                1. Your elitist, ivory tower, non-Biblical, liberal “facts” won’t do you any good at this blog, NToJ.

                  This is movement conservative country.

    4. Trump knows that he has the money to crush you in court so changes in the law would scare people away from stating obvious truths about him. The man can’t stop lying but what would happen to some blogger who said that?

      1. “Obvious truths” are protected by the First Amendment, as are “obvious opinions”. Slander and libel are not and have never been protected by the First Amendment.

        1. Obvious truths, obvious opinions, obvious slanders and obvious libels are easy cases. They’re not what this is about. This is about where the boundary gets drawn when truths, opinions, slanders and libels are anything but obvious. And because the closer speech gets to that boundary, the likelier it is to be chilled, loosening the boundary has the effect of suppressing truthful and otherwise non-defamatory reporting.

    5. Start working at home with Google. It’s the most-financially rewarding I’ve ever done. On tuesday I got a gorgeous BMW after having earned $8699 this last month. I actually started five months/ago and practically straight away was bringin in at least $96, per-hour. visit this site right here……. http://www.payshd.com

  2. I don’t think you can make a serious argument that many of the Supreme Court cases from the 60’s and 70’s were NOT a product of policy driven interpretations of Constitutional Law. You can argue that you agree with the end result, but it is hard to argue against the fact those results were largely contrived because it was Northern progressive policy selection at the time it was decided.

    1. It isn’t that simple. Another way of putting it is that for much of the 20th Century, legal formalism and strict constructionism utterly failed. (Indeed, part of what originalism is doing is responding to the failure of earlier conservative judicial theories.) I don’t mean it failed to deliver the right results. More like, it failed to address the real ways in which people’s rights were being violated.

      For instance, the voluntariness test wasn’t sufficiently protective against all the abuses by police officers in jailhouse interrogations. Wolf v. Colorado and Olmstead v. United States were crippling the Fourth Amendment. And, yes, southern whites were using all sorts of formal structures, whether it was the common law of defamation or the state action doctrine or arguments about the formal equality of anti-miscegenation laws, to impinge on the rights of black people. There were also a bunch of formal First Amendment doctrines that were being used to suppress dissent.

      Now, you can say that the particular answers Warren & Co. came up with were wrong. But they had to come up with something. Judicial conservativism was starved for answers in a time where there were rampant rights violations.

      Nowadays, some of those rights violations might be addressed by originalism. But there wasn’t a lot of originalism back then, there was just formalism and strict construction.

      1. “But they had to come up with something. Judicial conservativism was starved for answers in a time where there were rampant rights violations.”

        Alternatively, Congress could have done something under Section 5 of the 14A.

        “But there wasn’t a lot of originalism back then, there was just formalism and strict construction.”

        Where the 14A is concerned, there has never been anything other than originalism. Slaughterhouse wasn’t “formalism and strict construction” however defined. It was expressly an originalist opinion.

        1. A lot of conservatives, then and now, believe Section 5 of the 14th Amendment is a very narrow power limited to prohibiting race discrimination as well as a few related things. (And that’s one reason so many civil rights laws are passed under the Commerce Clause and Wickard.)

          As for Slaughterhouse, don’t confuse “divining original intent” with “originalism” as a philosophy. Courts have always paid at least lip service to original intent. But the notion that you could, for instance, use dictionaries but not legislative history to determine original public meaning at the time of adoption of the statute, and similar things, are pretty modern theories. They weren’t available in the 1960’s.

          1. “A lot of conservatives, then and now…”

            Well isn’t that the point? If the people “then” believed that the 14A was narrower than it is treated today by the courts, then it shouldn’t require unintended remedies just because opinions have since changed. You can’t disassociate “rights violations” from intended remediation.

            “They weren’t available in the 1960’s.”

            I don’t agree. Holmes was talking about textualism in the 19th century. Anyway, since textualism is nothing more than an original intent methodology, it’s been around from the beginning because “Courts have always paid at least lip service to original intent”.

            1. Textualism and originalism are two different things.

              And textualism was one of the problems that the Warren Court had to tackle. One example of this was Miranda. The Sixth Amendment contains a right to counsel, but ties it to the initiation of a criminal case. Police offers were coercing confessions in the stationhouse before charges were filed.

              So we were stuck with a formalistic textualism that didn’t protect suspects against self-incrimination and coerced confessions in the most common place where they happened. So, Miranda goes outside the text and outside the strict construction to find a 5th Amendment right to counsel.

              1. “Police offers were coercing confessions in the stationhouse before charges were filed.”

                As opposed to now, where they have to read Miranda warnings before they coerce confessions? The problem with your argument is that Warren & co’s “solutions” haven’t solved much.

                1. Exactly. It was a boneheaded move to tie the 6th amendment into testimony so that saying the magical words, “I won’t speak until my attorney is here” wins you a case.

                  It would have been much better to just read a presumption of coercion into all confessions made during interrogations that the government can rebut with subsequent affirmations.

              2. “One example of this was Miranda. The Sixth Amendment…”

                Miranda was a Fifth Amendment case.

                “Police offers were coercing confessions in the stationhouse before charges were filed.”

                Well that is a problem, but not necessarily a constitutional one. People have have confessed may still be represented by counsel later. The presumption here is that the Sixth was intended to deal with stationhouse confessions. The “legal formalism and strict constructionism” were very much children of the text itself, which begins with “prosecutions”.

                “So we were stuck with a formalistic textualism that didn’t protect suspects against self-incrimination…”

                Well that’s the entire debate? A confession isn’t necessarily the same as being “compelled in any criminal case to be a witness against himself”. I agree with you that these readings of the 5A and 6A afford less protections than your interpretation, but what difference does that make on a constitutional analysis?

  3. Any sane libel standard should recognize that making accusations against a neighbor is qualitatively different than making accusations against, say, the mayor, because the mayor has power over one’s life that one’s neighbor does not. Individuals with power and money should not be able to use the courts in order to circumvent the First Amendment and stifle criticism against them.

    1. Having power doesn’t mean you are exempt from civil liberties and protections. This sounds like the same socialist bunk that tells people not to have empathy for corporations and the rich because they can take the heat, they’re rich and powerful.

      1. It does, actually, within reason. No one forces you to run for mayor. You have to choose to do it, and that choice requires sacrifice.

        1. Yeah, sacrifice of your time, not of your rights.

          A fundamental principle of American law is that we’re all legally equal, from the least of us to the greatest.

          Note, that would require, outside the context of defamation law, reducing the rights of office holders.

          1. Those in power silencing their detractors is a bug of the system freedom of speech tries to fix.

            I will gladly err on the side of free speech in this particular instance, and this long preceded Trump.

  4. Justice Thomas: We should reconsider and possibly overrule “Constitutional” precedents, like New York Times v. Sullivan, that have absolutely no basis in either the text of the Constitution or in the public understanding of the Constitution at the time it was ratified. We should recognize that simply creating “Constitutional” law for purely policy reasons, untethered by the Constitution, is NOT a proper or legitimate exercise of the judicial power, but is rather a raw exercise of political power which undermines any claim of this Court to institutional legitimacy.

    Yes. NOT a crazy position.

    1. Please present a sane argument that this was not, given the time and place it was decided, not a political driven decision.

      Again, you may agree with the result but it is hard to argue the fact that many decisions such as this were NOT the product of political inclinations.

      1. Um, I’m confused. I agree completely that NYT v. Sullivan was a politically driven policy decision, not really Constitutional law. As was Roe v. Wade, Lawrence v. Texas, and Obergefell. And I agree with Thomas that this is not a legitimate exercise of the judicial power, and should be re-examined. Which is why I stated – seriously, no sarcasm at all intended – that Thomas’s position was NOT a crazy position.

        1. Read that as sarcastic….guess I read too many comments by Sarcastrated!

          1. Sarcastrated… LOL. That is such a mean thing to say.

            I wonder if it qualifies as slander or libel.

            1. To qualify as slander or libel under US law, it has to be false. I wonder how he will go about proving he has intact testicles in a court of law?

            2. P.S. They have prosthetic testicles for dogs, so neutered male dogs can look intact.

              1. Once saw one of those plastic surgery shows where a guy born with one ball got a prosthetic one. Maybe Sarcastrated has two of those! Who knows for sure!

  5. It is certainly bizarre that how much protection from defamation you get turns on whether or not you’ve exercised your first amendment rights.

  6. Changes to NYT v Sullivan will have both good and bad consequences.

    First it will likely stop a lot of fake news – Such as Dan Rather/Mary Mapes fake Killian memo’s. Or at least force the media to do some actual due diligence on the reported stories.

    The bad will be cases such as Mann v CEI/NR/Styern/Simberg, where it will become easier for plantiffs to quash legitimate critizism. The first ruling by the appellete court to a large degree relied on the belief that the exonerations proved that the science was correct without noting or recognizing the serious deficiencies in the exonorations/investigations.

    As such any critisism of “accepted science” becomes actionable. Sugar, cholesteral, etc

    1. “First it will likely stop a lot of fake news…”

      True, although not all fake news is libelous. The fake news that the NYT recently published claiming that there was a study showing that women have more job offers if they remove the names from the resumee comes to mind.

  7. What I found interesting is that Politicians used to receive GREATER protection from libelous claims on the theory that without greater protections from slander, who would want to go into to politics and have their good name destroyed?

    While I would have dismissed that claim out of hand sixth months ago, after the Cavanaugh debacle, it does seem to have some appeal.

    Nevertheless, given the importance of the John Wilkes controversy in inspiring the American revolution, it seems tough to align the founder’s intent with Blackstone on this issue.

    1. While I would have dismissed that claim out of hand sixth months ago, after the Cavanaugh debacle, it does seem to have some appeal.

      Who above was decrying constitutional decisions based on preferred policies?

      1. Learn to read. Then come back and make a post at least remotely responsive to what Ramer wrote.

        1. As usual, your objection provides no grounds other than insults.

          Ramer’s making a policy argument about the direction Constitution law should go. Which is in conflict with those hiding behind the fig leaf of ‘the REAL text just happens to agree with me’ above.

          1. You fucking moron. As so often is the case with your “clever” retorts, it relied on completely misreading the comment you are pretending to respond to. Why would I waste my time with a substantive response when I’m responding to a post that demonstrates a profound lack of reading comprehension? At least you appear to be capable of understanding insults.

            That’s two attempts, and still no response remotely responsive to what Ramer wrote.

            1. Why do I bother. You never have anything but insults about how everyone else is dumber than you.

              1. Oh, poor little Sarcastr0. Are your feelings hurt because I won’t pretend you are clever? All of my comments on this post are substantive, including those pointing out that your only comments on this post are completely misrepresenting the post you are allegedly responding to. Your whining about my lack of substance is just another demonstration of your lack of reading comprehension.

                We’ll consider this one a foul tip, since you didn’t even try to respond to Ramer.

    2. “after the Cavanaugh debacle,”

      With and without the public figure issue, you still have to overcome the knowingly it was false standard.

      While Fords claim was false, due to Fords mental instability, she believed it was true.

      On the other hand, this would affect the MSM media since once it became known that it was false, they continued to repeat the false claim.

      1. That is the point. There are many times a person makes a false claim to a newspaper that should, with minimal diligence, be able to debunk it.

        However, like the UVA Frat/Jackie story, they don’t sit on it, or refer to everything as “alleged” and “unproven allegations” they run it as fact. Unless it is Bill Gates slandering you, bringing actions against the person is mostly pointless, the point is to use these laws to enforce proper journalistic standards.

        If that means Rolling Stone goes under because of UVA and CBS pays a $50 million settlement because of Dan Rather’s reckless reporting, so be it. Keep bleeding them until they re-establish high standards. We don’t let people drive drunk and hit 3 pedestrians, then let them use the drunkenness as a shield from liability. That is what NYT v. Sullivan is: excusing drunk reporting.

        1. How long do you figure right-wing outlets such as Breitbart, InstaPundit, Project Veritas, the Volokh Conspiracy, Gateway Pundit, Stormfront, Hot Air, NewsMax, and Fox News would survive under the standard(s) you advocate?

          1. I’ve only read 2 of those in the last 12 months + so… I don’t know? Fox News would be doing better than the NYT, and this site is opinion… I’m sure some would face quite a bit of liability. Who cares? If your editorial standard is so low that you cannot follow easily followed sourcing rules your going out of business is no loss. We lost nothing when Gawker died. If Buzzfeed went out of business for publishing the “Dossier” without having proper sourcing it would also be no loss. If “Project Veritas” conducts another weird sting and the people can prove liable good riddance.

      2. Is it knowingly make a statement (that turns out to be false)? Or do you actually have to lie i.e., make a statement knowing at the time that it’s false?

        “Knowing” in criminal statues is usually the former.

    3. “after the Cavanaugh debacle,”

      With and without the public figure issue, you still have to overcome the knowingly it was false standard.

      While Fords claim was false, due to Fords mental instability, she believed it was true.

      On the other hand, this would affect the MSM media since once it became known that it was false, they continued to repeat the false claim.

      1. So did the President defame Kavanaugh when he said she sounded convincing?

      2. Why, then, didn’t her “mental instablity” prompt her to make claims under oath that were affirmatively falsifiable, instead of carefully sticking to claims that couldn’t be proven wrong?

        No, that looked to me like a very carefully planned effort to skirt the edge of being vulnerable to perjury charges while impugning Kavanaugh to the maximum possible extent. Not the act of somebody who’s mentally unstable.

        No doubt she was coached on how to do this, but she was stable enough to follow her directions.

  8. It’s a hard problem. Sullivan is hard to justify on originalist grounds. But I doubt we’re ever going to move to a system where some dipshit southern jury can tee up the NYT for $500K without any proof of damages. (Or some dipshit Massachusetts jury tees up Fox News for $500K without any proof of damages.)

    1. But I doubt we’re ever going to move to a system where some dipshit southern jury can tee up the NYT for $500K without any proof of damages.

      Unlikely, but not impossible. We should still nip this in the bud. Especially considering how many on this libertarian blog seem all for shrinking the First Amendment to get some short-term partisan gain for their whiny President.

      You come by your originalism honestly, but as a non-originalist I see genuine danger from the combination of small-government zealotry, honest originalist, and the cult-of-Trump. Resting on how ridiculous your hypo would be ignores the last couple of years of ridiculous things happening one after another.

      1. “Resting on how ridiculous your hypo would be ignores the last couple of years of ridiculous things happening one after another.”

        I don’t think the last couple of years have resulted in anything as ridiculous as open season on all publications. Conservatives are not going to support a rule that would expose the Washington Post as much as the Washington Times (or Breitbart). In hard times, left and right media always close ranks. Sullivan would have become the law one way or the other, regardless of SCOTUS’s decision.

        1. Maybe you’re right, these things do not move like lightning after all.
          I’ve just had my status quo bias shaken so many times I don’t know when it’s spurious anymore.

    2. >system where some dipshit southern jury can tee up the NYT for $500K without any proof of damages.

      If that’s the problem, you can fix it with a venue statute.

    3. Sullivan is hard to justify on originalist grounds

      I’d be more interested in originalist grounds if originalism weren’t younger and less popular than Kim Kardashian, or if Antonin Scalia hadn’t demonstrated that originalists deftly reach conservative outcomes even if that requires ignoring originalism’s ostensible principles.

  9. There is plenty of international precedent for regulating the media’s coverage of public officials.

    Some of it may use the cyrillic alphabet, but you can use Google Translate.

    1. I think in a time and place when the media was at least partially honest and did try to report the news at it happened there was a good public policy argument for holding public officials to a higher constitutional standard for libel and slander. But, in the age of fake news media that just outright lies and then lies on top of lying, and actively seeks to ruin innocent people’s lives with their fake news coverage that perhaps they need to be held accountable. And if that requires them to be hit in the pocket book so be it.

      1. I look forward, then, to the downfall of the Fox News Channel, Alex Jones, the Blaze, the Daily Caller, the Gateway Pundit and all the other liars too numerous to list here.

  10. ISTM that the definition of “public figure” is way too broad.

    How, for example, can McKee – the plaintiff in the case – be considered a public figure just because she talked to a reporter about her accusation?

    On another point, I disagree with Thomas’ last sentence:

    The States are perfectly capable of striking an acceptable balance between encouraging
    robust public discourse and providing a meaningful remedy for reputational harm.

    This is just reflex. In the Internet Age ISTM that having different rules in different states is a recipe for chaos.

    1. Bernard,
      Yeah, I thought the same. Unless you and I are missing something; it seemed like the stupidest comment I’ve heard from a Justice recently…unless the rule will be “If a comment was made in Utah, then all future libel and slander suits will apply Utah law–even if plaintiff is in NYC, Defendants are in Colorado and California, etc.. This would require a massive nationwide change in laws re jurisdiction…local laws, state laws, and fed law as well.

      1. The courts in Utah are actually pretty protective of speech in general. (I get that the insertion of said state was meant to be that of an example of a state that might have lower protections for libelous speech because it is perceived as being “conservative”). The Utah Supreme Court has found its criminal liable statute to be unconstitutional and has also extended its state constitutional protections to be broader than the first amendment at times.

      2. I don’t see why ordinary personal jurisdiction laws wouldn’t suffice. There’s already a developing body of case law to apply. Look at Vangheluwe v GOT News, for example.

      3. Jurisdiction of a case and the choice of which jurisdiction’s law is to be applied are two different things. State X may, in trying a given case, apply the law of State Y. Choice of law rules vary among the states.

        Even before the internet, there were cases involving parties and events touching multiple states.

        1. multiple states -> several states

          1. Oh, I don’t know. Shirley Jones sued the National Enquirer and several of its reporters in the late 1970s for defamation, and the issue of personal jurisdiction reached the Supreme Court in Calder v. Jones, 465 U.S. 783 (1984). A defamatory article in the National Enquirer reached a very wide audience even then.

    2. It would be interesting to trace the development of the doctrine to determine whether this result was an intended or unintended result of the decision. When they decided NYT v Sullivan, did they realize they were shutting down cases like this as well?

    3. How, for example, can McKee – the plaintiff in the case – be considered a public figure just because she talked to a reporter about her accusation?

      She’s considered a limited purpose public figure — that is, a public figure only with relation to the topic about which she put herself forward in the public eye. If you talk about, e.g., her cheating on her taxes (it’s a hypothetical, not an accusation!), then she’s a private figure with respect to that topic.

  11. It was my case.

    I have been having to listen all day to people bashing on me and blaming me for Thomas’ opinion, even though our briefs did not ask for this and argued McKee’s claim of being a private figure was consistent with controlling Supreme Court precedents, including Sullivan.

    All in a day’s work of appellate advocacy, I guess. My client helped put Cosby in jail. She’s a hero.

    1. Haters are always gonna hate….

  12. The New York Times Company is a corporation. In awarding First Amendment rights to the company, the Warren Court was obviously being corporate shills. Corporations aren’t people!

    /sarc

    1. Unless they’re…
      Oh well, never mind.

    2. We noticed your sarc tag – Yet you disagree with CU because it wasnt a person – any consistancy in your argument – not.

      1. The inconsistency goes both ways, though. The NY Times insists that the CU case was wrong and that corporations do not enjoy First Amendment rights. It fails to appreciate the irony that that by its position, it itself is outside the First Amendment.

  13. It’s not crazy, but I believe it is very wrong. Even from an original public meaning standpoint, I believe the First Amendment displaced substantial swaths of the common law regarding regulations on speech including private torts. Ultimately, abridging the freedom of speech would include providing private remedy and regulation of speech which the government itself could not conduct. Torts such as making private facts public and defamation are inconsistent with the First Amendment. If anything, the right answer is to dump the actual malice standard and abolish the tort.

    1. Even the development of falsehood as an element of the tort of slander is a product of the First Amendment. Bacon’s Abridgement was a well-used reference on both sides of the Atlantic, and book 4 the 1793 edition says:

      It is no Excuse in foro Conscientiae, that the slanderous words that have been written or spoken are true; although the Law does, in Compassion to Mens Infirmities, allow it to be a Justification in an Action for Words, that they are true.

      The “Action for Words” qualifier limits the defense to civil suits, criminal libel was in essence a charge of inciting a breach of the peace and depended more on how inflammatory the words were than on how false.
      I suspect though that Justice Thomas doesn’t want to roll back defamation law quite this far.

  14. Justice Thomas is at the lonely fringe on this one. His record on persuading others to join his contrarian crusades is as heartening as it is weak.

    1. Yup. Justice Thomas is the only justice that thinks that Kathrine McKee shouldn’t have a worse legal position because she told a reporter that she was raped. And he’s the guy with the disheartening views on the first amendment.

      1. When you think about it, the limited public person doctrine pretty much argues that she was asking for it by coming forward.

  15. Here’s a link to the video of a lecture by Richard Epstein on the common law of freedom of speech. Reading the article that Mr. Baude linked to is ideal, but if you’re tired at the end if the day (like me), it’s easier to listen:

    https://m.youtube.com/watch?v=49V4J3H0DhE&t=514s

  16. Mr Nicholas ‘The Smirk’ Sandman is about to do us all a great service re: Libel Laws

    1. My favorite is when the progressives argue that Sandman is a “public figure” … because the media decided to defame and slander him.

      1. And that points up one of the particular issues here. Perhaps the Supreme Court’s Sullivan decision is not wrong so much as it has been wrongly applied in subsequent cases. It does seem that the media is able to avail itself of a public figure defense when it is responsbile for turning the person into a public figure. Law isn’t always logical, but it would seem to make sense that some kind of sliding scale might be appropriate in such situations. Waiting for a bus after pariticipating in a pro-life march? Doesn’t seem like a public figure defense should be available.

  17. I look forward to Justice Thomas’s forthcoming calls for reconsideration of Brown and Loving.

    1. They’re coming. He might be waiting for his wife to milk the rubes for a few more dollars on those ones before letting loose.

  18. The New York Times was successful and not destroyed by lawsuits prior to Sullivan. So too Time, Newsweek, CBS, NBC and many others.

    UK media outlets survive without Sullivan protections or even the regular protections non-public figures enjoy here.

  19. Sullivan itself is not a problem, as the case involved a suit by a public official.

    The problem was expanding this doctrine to public figures, because the defendants have the power to make the plaintiffs a public figure. The outcome of George Zimmerman’s lawsuit against NBC is illustrative of that.

    1. Or worse, when the slander itself makes the person a public figure.

      1. Indeed.

        The slanderer or libeler can create the circumstances of their own defense.

  20. I’m afraid New York Times v. Sullivan has done more harm to American society than anyone can imagine. A free press in general, and especially with modern methods of communication, is an extremely powerful and influential tool over society. On one hand, a powerful press is indispensable to ordered liberty, but like anything in life with unchecked power, tyranny and abuse is inevitable. The founding fathers understood this, they weren’t stupid. They never designed the first amendment to immunize the press from liability and everyone knew that in 1791. There is no industry in this country that is free from accountability like the media and as far as I’m concerned the decline of journalistic ethics and standards is directly the result of this crap NYT decision.

    1. “I’m afraid New York Times v. Sullivan has done more harm to American society than anyone can imagine.”

      Jesus Christ. NYT v. Sullivan is a thing that happened. I don’t need my imagination to witness whatever harm you’re imagining. I have eyeballs. You sound deranged. And it’s not as though actual malice was some newfound requirement in defamation law. Several states already had actual malice requirements including Alabama (for punitive damages).

  21. Indeed, Gary Johnson was on the side of forcing accommodation as I recall. Still probably the least awful candidate, but not very libertarian to many people that claim it.

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