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Free Speech

Justice Kagan's Views on New York Times v. Sullivan, as of 1993


From her A Libel Story: Sullivan Then and Now, published early in her academic career, reviewing Anthony Lewis's Make No Law: The Sullivan Case and the First Amendment:

Seen in [the] light [of the facts of Sullivan, and the background of libel lawsuits being used in an attempt to block criticism of abuses of civil rights in the South], the revolution worked by Sullivan in the treatment of public official libel suits appears justified, correct, even obvious. But not all such suits look like Sullivan, and the use of the actual malice standard in even this limited category of cases often imposes serious costs: to reputation, of course, but also, at least potentially, to the nature and quality of public discourse. The adverse consequences of the actual malice rule do not prove Sullivan itself wrong, but they do force consideration of the question whether the Court, in subsequent decisions, has extended the Sullivan principle too far….

The obvious dark side of the Sullivan standard is that it allows grievous reputational injury to occur without monetary compensation or any other effective remedy. Lewis, to his credit, concedes this harm, without attempting to minimize it. He tells, for example, the story of John Goldmark, a member of the Washington State Legislature, who in 1962 became the object of a false and vicious red-baiting campaign and, largely as a consequence, lost his seat. When Goldmark won a libel judgment two years later, the pre-Sullivan press praised the verdict: one major newspaper editorialized that "[a] few more verdicts like th[is] one … might restore the nation to the tolerant level where the constitutional freedoms could be exercised as they should be in a free country." But within months Sullivan appeared, and Goldmark's judgment was set aside because of failure to prove actual malice. He thus became one of the first victims of the Sullivan standard: persons who (unlike Sullivan himself) had suffered real reputational injury and yet were unable to recover for it.

Lewis's response to these cases is the familiar one (implicitly adopted in Sullivan) that such personal harm is the unfortunate but necessary consequence of a rule promoting the social good of uninhibited comment concerning public officials. But even if we assume that the actual malice standard in fact encourages speech about public officials—itself a somewhat uncertain proposition—this response begs an important (if almost equally familiar) question: Is uninhibited defamatory comment an unambiguous social good? That is, does it  truly enhance  public discourse?

This question … poses a challenge to … the Sullivan Court's view of the effect of the actual malice standard, outside the context of the Sullivan case itself, on the quality of public discourse and hence on the democratic process. The ultimate concern of Sullivan was to strengthen that process by ensuring that the citizenry receive important information about the conduct and policies of government officials. Certainly, the application of the actual malice standard in Sullivan served that function.

But the malice standard may not have the same effects when applied more generally. Several commentators have noted that to the extent Sullivan decreases the threat of libel litigation, it promotes not only true but also false statements of fact—statements that may themselves distort public debate. Here, too, the Golamark case provides a telling counterexample to Sullivan: the false charges of Communist Party associations in that case more likely corrupted than enhanced the realm of public discourse. In this way, the legal standard adopted in Sullivan may cut against the very values underlying the decision.

The problem, indeed, may go even deeper: it may involve not merely the promotion of false statements but also a more general tendency to sensationalize political discourse. When the press stops worrying about the accuracy of defamatory statements, it may start covering subject matter not readily amenable to determinations of truth or falsity; that subject matter, whether true or false, often ranks high in sensationalist content. Thus, the Sullivan decision, although itself involving core political speech, may have facilitated (which is not to say "caused") both the rise of tabloids and the "tabloidization" of the mainstream press. And arguably, such expression—the obvious example here is speech concerning the private and sexual lives of political figures—distracts from and devalues the kind of discourse Sullivan meant to promote.

The poverty of such speech does not itself provide a reason for suppression; the First Amendment would mean little if government could restrict speech whenever it were deemed distracting or demeaning or even false. But with respect to libel law, the interest in reputation provides the reason for regulation; the regulation falls only because the benefits of the additional speech outweigh its reputational costs. To the extent that the speech promoted makes little contribution to public dialogue, the relaxation of libel law seems difficult to countenance.

Make No Law includes copious evidence that the press in pre-Sullivan days demonstrated great sensitivity to this range of questions…. Today's press engages in far less examination of journalistic standards and their relation to legal rules. Rather than asking whether some kinds of accountability may in the long term benefit journalism, the press reflexively asserts constitutional insulation from any and all norms of conduct….

Is it possible that Sullivan bears some responsibility for a change in the way the press views itself and its conduct—a change that the general public might describe as increased press arrogance? It is wise to be wary about attributing too much cultural impact to a Supreme Court decision; yet it is hard to believe that those most directly affected by a decision like Sullivan are in no way changed by it.

At the most basic level, judicial declarations of unaccountability can go to the head. It is hardly unthinkable that increased legal protection may lead to a greater sense of entitlement and self-importance (which in turn may manifest itself in questionable conduct). But the effects of Sullivan on the press's conception of itself may go yet deeper. Just as the Court treats the story of Sullivan as an archetype, so too may the press: the heroic role of the Times in that case helps to define and inform self-understanding. This mythical image may at times serve as model, but it also may blind the press to numerous less attractive aspects of its role and performance. Thus, the self-image of the press becomes semi-delusional, and journalists cease to ask the questions of themselves which they ask of other powerful actors in society.

Questions of this kind in no way prove that the Court decided Sulli­ van incorrectly or that the Court now should reconsider its holding. The story of Sullivan rebels against this conclusion, whether that story is framed as a particular tale of how southern public officials attempted to suppress commentary about the civil rights movement {and thus to suppress the movement itself) or as a more general tale of how government officials may attempt to stifle criticism of themselves and their policies.

But to view Sullivan as a kind of icon … is too easy by half. If nothing else, such a view may distort consideration of the question whether and how Sullivan should be extended. This question has occupied the Court from the time of Sullivan to this day, and Lewis discusses the Court's responses in detail. But because he fails to acknowledge fully the difficulties associated with the Sullivan rule itself, he can accept in the blandest way all further extensions of the principle. He need never confront the question-a question intertwined with the very meaning of Sullivan-of the decision's proper limits.

Kagan then turns to some of these "questionable extensions," as she labels them, such as extension of the Sullivan standard to "public figures" including merely prominent entertainers, or to plaintiffs who are "both unknown beyond a narrow circle and uninvolved in governmental affairs, because of [their] participation in one of the countless significant and not-so-significant matters that can be deemed a 'public controversy'":

The use of the actual malice standard in this wide range of cases appears to have little connection with the story of Sullivan. Viewed from that vantage point, current libel law seems the result not of steady and sensible common law reasoning but of a striking disregard of the doctrine's underpinnings.

What the views of Professor Kagan in 1993 tell us about the views of Justice Kagan in 2021 is hard to tell; and of course Justice Kagan hasn't joined Justice Thomas's and Gorsuch's suggestions that Sullivan should be reconsidered. Still, I thought this was worth passing along; for more thoughts from her on this subject, and some alternatives to the Sullivan rule that she suggested in 1993, see the article itself.