The Volokh Conspiracy
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Justice Thomas and Justice Gorsuch suggested that the Supreme Court should revisit the landmark ruling in New York Times v. Sullivan that effectively prevents public figures from bringing successful defamation claims, as Eugene noted earlier today. A recent WSJ op-ed by Glenn Reynolds suggests that Justices may be focusing on the wrong case, and that correcting the problem need not risk insulating government officials from criticism.
According to Reynolds, the real problems in existing defamation law have come from the Court's subsequent expansion of Sullivan's rationale to "public figures," instead of public officials, and then expanding what it means to be a public figure. Subsequent cases also made it more difficult to show that a speaker acted with actual malice when spreading a falsehood.
From the op-ed:
Later decisions quickly expanded Sullivan in ways that suggest the justices were more interested in protecting the institutional press than in reining in the excesses of politicians. First, they expanded Sullivan's coverage. In 1967, "Public officials" were replaced, in Time Inc. v. Hill and Curtis Publishing v. Butts, by "public figures." A precedent designed to protect coverage of political wrongdoing suddenly made it hard for celebrities to sue over falsehoods about their personal lives.
In Gertz v. Robert Welch Inc. (1974) and Time Inc. v. Firestone (1976), the category of public figures was further expanded to include ordinary citizens who "thrust" themselves into the debate. Anyone, however obscure, who spoke out would lose traditional protection against libel and slander. The term "thrust" suggests it is vaguely inappropriate for ordinary citizens to take part in public affairs; at any rate, the price for doing so was to make your reputation fair game, a tax of sorts on speech.
Indeed, as Reynolds note, this expansion of what constitutes a "public figure" led to courts concluding that a woman who accused Bill Cosby of rape was a "public figure" when she sought to sue Cosby's lawyer for defamation. One does not have to harbor doubts about NYT v. Sullivan to think this result indicates a balance that is out of whack.
But that's not all. More from Reynolds:
Meanwhile, "actual malice" had also been adjusted, to the detriment of plaintiffs. In St. Amant v. Thompson (1968), the justices held that a plaintiff had to show that the defendant "entertained serious doubts" about the story's truth. It wasn't enough that any "reasonably prudent man" would have had doubts.
The tightening of pleading standards in cases like Iqbal and Twombly have further raised the hurdles for would-be defamation plaintiffs.
As Reynolds concludes, these problems with defamation law could be cured while leaving the core holding of Sullivan intact:
Sullivan—limited to public officials rather than public figures and allowing for a milder version of "actual malice" and more-open discovery, isn't the source of most of the excessive protections media defendants get in libel cases today. The justices could overturn or limit their subsequent rulings while leaving Sullivan intact. Nobody but media lawyers and their clients would get upset.
Overturning Sullivan would be bad, as it would make it more difficult to criticize government officials. A more modest correction of the sort Reynolds suggests, on the other hand, might be an appropriate course correction.
UPDATE: The Reynolds op-ed is drawn from this longer law review article "Rethinking Libel for the Twenty-First Century."