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.

NEXT: Justices Thomas and Gorsuch Criticize New York Times v. Sullivan

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  1. All media are hate speech propaganda outlets for their billionaire owners. Only C-SPAN is ethical. Brian Lamb says he counts stories to keep them balanced.

    Only 2 people are lower than the lawyer in morals, the serial rapist and killer of children, and the journalist. Naturally, this toxic profession is protecting, privileging, and immunizing both of them.

    1. Of course, this nitpicky, Ivy indoctrinated dumbass misses the biggest problem of all, the damages and who is causing them.

      Say I am accused of using the N-word 10 years ago in a Facebook post. True or not, I suffer some measurable damage, like lose a job, get expelled from a club, get disqualified to testify in court as a police officer, wife divorces me. Who has caused my damage? Shouldn’t those people pay whether true or not, since my post is irrelevant to the function in question?

      Kagan is just too stupid to see that. No doubt she started with a high IQ and ethics. Then she attended law school. Now, dumb as a rock.

      1. Shouldn’t those people pay whether true or not, since my post is irrelevant to the function in question?

        No. This has been yet another episode of Simple Answers to Stupid Questions.

        1. Conclusory remarks by idiot lawyer defending the utterly failed status quo. What people say causes no measurable damage. Hurt feelings cannot be measured. What people do as a result causes measurable damage. They are the ones who should pay. The lawyer is too stupid to grasp that simple idea of deterrence.

          Kids in Life Skills learning to eat with a spoon understand that. Why can’t the lawyer?

  2. Good catch.

    The Supreme Court did not grant my office’s petition in McKee v. Cosby. But Gorsuch and Thomas both recall Kathy McKee’s case in their opinions today, and eventually, SCOTUS may reconsider the breadth public figure test.

    1. Honest question: As I understand the case, McKee said Cosby raped her, Cosby said he didn’t and that was a lie, and McKee sued Cosby for libel.

      But why shouldn’t people, when accused, have a right to defend themselves? Even if that defense may or may not be true? You force people into a position where if they don’t defend themselves, they get condemned harshly by the media with no recourse, and if they do, they face legal action for that defense and potentially forfeit their 5th amendment rights.

      Which strikes me as plainly unfair. I have extraordinary little sympathy for Bill Cosby but it seems that if someone was falsely accused, or even if he did something but the accuser misrepresented it (a common occurance, everyone has wildly different interpretations of the same events) the deck is stacked against them.

      The issue at hand will be settled in a court case, so why should McKee personally be entitled to libel payments? The state takes up the authority to persecute crimes and prove he did it.

      Part of this is my general distaste towards civil actions after criminal trials (always had the flavor of double jeapordy to be, and I understand the difference). It just seems wrong to me.

      1. Letting people evade a statute of limitations on the underlying allegation by denying a public figure the right to publicly deny a damaging attack is wrong.

      2. I agree with Aladdin. People should not be able to bootstrap liability (often for time barred claims of wrongdoing) by accusing someone of said wrongdoing and then suing them for defamation when they proclaim their innocence. (Think of it as the ‘exculpatory no’ of defamation law.)

        As much as I loath Trump, I feel the same way about the E Jean Carroll case (although Trump there arguably crossed the line by saying stuff about her beyond just his own innocence).

    2. Apologies if I’m being obtuse, but how did the public figure/actual malice issue end up making a difference in this case? Surely you were planning to prove that Cosby knew his denial was false? And surely you were seeking punitive damages?

      1. I don’t think a denial could rise to libel, maybe she’s lying and she knows it would.

        James Carville’s libel of Paula Jones could definitely rise to defamation if it is, in context, referring more specifically to Jones: “Drag a hundred dollar bill through a trailer park and you never know what you will find.”

    3. Dilan: isn’t Cosby’s denial within the penumbra of the litigation privilege and thus immunized?

  3. The “mainstream media” (i.e., progressive propaganda pumps) lost creditability with all but the victims of progressive “educators” commencing about fifty or sixty years ago. What, if any, role “freedom of the press” played in this remains unclear.

    1. Disaffected right-wing fringers whining about the mainstream and American progress are among my favorite culture war casualties.

      You can whine all you like, clingers . . . but you will continue to comply with the preferences of better Americans.

      Let’s celebrate the liberal-libertarian mainstream’s continuing culture war triumph over backwardness and bigotry this weekend! Choose your beer wisely.

      1. Poor Kirkland . . . living proof that is possible for victims of progressive educators to be naïve and silly at the same time.

        1. Are you counting on a great come-from-far-behind victory for clingers in the culture war, WJack?

          Do you also have substantial wagers placed on that Diamondbacks-Orioles World Series you envision?

          On behalf of America’s culture war winners, I wish you good fortune in selecting for this weekend a beer whose quality can wash away, at least for a moment, some of the enduring sting all sentient conservatives must experience as the losers in modern America.

          1. Those who did not nap during their 7th grade history class, know civilizations and their concurrent cultures have a beginning, then a period of growth, then maturity, then degenerate, decay, rot and die. Judeo – Christian, Western Civilization and its companion culture (which resulted in the most powerful, prosperous and free country in the history of the world) is showing stage four symptoms. It is apparent that Kirkland like most victims of Progressive educators here is clueless enough to perceive this to be a good thing.

            1. American progress has made you a disaffected, defeated, whining clinger, WJack.

              You and your fellow bigoted, superstitious, backward, right-wing colleagues have lost. To your betters. Try to accept defeat with dignity.

              1. I realize you have been abused by Progressive educators, but you should at least google “pot kettle” before attempting to articulate your views. At any rate, you apparently have made a deliberate choice to remain oblivious . . . I cannot help you.

          2. That stinging is only in the biased, garbage media. In real life, you are overdue for cancel.

  4. “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.”

    We could always bring back dueling – – – – – – – –

  5. Thank you for avoiding the clickbait headline “Did Justice Kagan agree with Donald Trump?”

    Interesting analysis, though I’m not sure if Sullivan can be blamed for tabloidization of the media – see for example the UK press which *isn’t* under the Sullivan rules.

    Maybe if the Supreme Court had wanted to do something for the civil rights movement in the Sullivan case, without messing up more meritorious libel cases, it could have insisted on more strict proof of harm. As I recall from Lewis’ book, there was a legitimate question whether Sullivan – a public official in the Jim Crow south accused of being harsher toward civil rights demonstrators than he actually was – would have actually lost reputation among the white electorate on which he relied.

    1. Also, there was a question whether the accusations against “southern violators” would be seen as referring to Sullivan. Did he simply choose to take offense just to have the chance of suing the Times?

      1. That’s exactly what he did. He was never named in the Ad. He claimed that every reference to the police or Dr. King’s arrests in the ad was always a atatement about him as police commissioner, then turned around and said they were false, libelous statement about him because they were about conduct that occurred before he became police commmissioner and hence the ad libelously attributed conduct he didn’t do to him.

        If that’s not finding a way to take bogus offense just to stick it to the Times (and the people who bought the ad, he also sued them), I don’t know what is. The whole idea the ad had anything to do with him was largely just a vehicle to enable him to use legal process and friendly all-white juries to bankrupt Dr. King’s organization.

    2. Currently we have tabloidization plus ‘social media-zation,’ if you will, of the news media. Both have led to a poorer quality end product, less focus on journalism, if one takes the Society For Professional Journalists at face value.

  6. “background of libel lawsuits being used in an attempt to block criticism of abuses of civil rights in the South”

    Yes, no way the Supreme Court was going to let some racist Alabama politician get a judgment against the New York Times.

    So they invented a terrible doctrine.

  7. Hard cases do make bad law. However, Justice Kagan will never have the intellectual courage to decide a case against her own team. And the NY Times is the George Steinbrenner of the leftist team.

    1. Justice Kagan has decided “against her own team” in a number of cases. Ramos v Louisiana comes to mind, for one. I know there have been a number of articles written on this very topic.

  8. So what you are saying is that Trump’s take on libel, in that it ought to be reformed and made easier to prove in some circumstances, was not as extreme as the press tried to paint it….?

  9. Sullivan could easily have been decided on narrower grounds. A number of his claims of seem especially dubious. He first claimed that all references to “police,” “arrest,” etc. in the NYT as represent statements about him because he was the police commissioner even though he was never mentioned, then claims that they are false statements about him because much of the police conduct and arrests described occurred before he became police commissioner, therefore could not have been done by him.

    This would seem more evidence that these statements were not about him at all than evidence that they were false statements about him.

    Having asserted the entire article was about him, he then claimed that every single false statement in it lineled him. He claimed to be libeled because students at a protest actually sang the national anthem when the ad said they sang “My country ‘tis of thee.” There do appear to have been a number of false statements in the article. But the claim they were in any way statements about Mr. Sulliven seems as dubious as the claim that true statements about Dr. King’s arrests before Mr. Sullivan’s tenure were false statements about Mr. Sullivan.

    It seems to me that the Supreme Court could have found that the libel claims were either completely trumped up or the alleged falsehoods were simply immaterial, and found the speech under these circumstances protected by the First Amendment, without completely upending libel law as it had previously existed.

  10. OMG! A new, broad legal rule can have unexpected consequences! Who knew?

  11. I wonder if Kagan is merely saying that it’s okay to make false statements about a segregationist, but not about a liberal. And I wonder if Volokh, Thomas, and Gorsuch simply think the reverse.

  12. I’m not too impressed with Kagen’s example here: “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…”

    Is she saying that calling Trump a racist should be considered libel? I don’t think he is, but definitely it should be protected speech when referring to a politician, and same as calling a politician a Communist. That’s protected opinion, now it certainly could be defamation to falsely say Trump attended a Klan meeting, or that Goldmark was a dues paying member of the communist party.

    And you know that now she would defend to the death someone’s right to call Trump a racist, or Biden a Communist (personally I don’t believe he is, a Communist dupe is more accurate).

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