Free Speech

Justices Thomas and Gorsuch Criticize New York Times v. Sullivan

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In today's dissent from denial of certiorari in Berisha v. Lawson, Justice Thomas repeated his past criticisms of New York Times v. Sullivan (see McKee v. Cosby), and Justice Gorsuch joined in; Justice Gorsuch's opinion also cites Justice Kagan's views on the subject from early in her academic career, which I'll also excerpt shortly. (Back in the 1970s and 1980s, Justice White also powerfully criticized Sullivan, and drew some support from Chief Justice Burger.) I doubt there will be five votes for this position, but I thought I'd pass along the opinions. First, from Justice Thomas:

This Court's pronouncement that the First Amendment requires public figures to establish actual malice bears "no relation to the text, history, or structure of the Constitution." Tah v. Global Witness Publishing, Inc. (D.C. Cir. 2021) (Silberman, J., dissenting) (emphasis deleted). In fact, the opposite rule historically prevailed: "[T]he common law deemed libels against public figures to be … more serious and injurious than ordinary libels."

The Court provided scant explanation for the decision to erect a new hurdle for public-figure plaintiffs so long after the First Amendment's ratification. In Gertz, for example, the Court reasoned that public figures are fair targets because "they invite attention and comment." That is, "public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood." But it is unclear why exposing oneself to an increased risk of becoming a victim necessarily means forfeiting the remedies legislatures put in place for such victims. And, even assuming that it is sometimes fair to blame the victim, it is less clear why the rule still applies when the public figure "has not voluntarily sought attention."

The lack of historical support for this Court's actual-malice requirement is reason enough to take a second look at the Court's doctrine. Our reconsideration is all the more needed because of the doctrine's real-world effects. Public figure or private, lies impose real harm. Take, for instance, the shooting at a pizza shop rumored to be "the home of a Satanic child sex abuse ring involving top Democrats such as Hillary Clinton." Or consider how online posts falsely labeling someone as "a thief, a fraudster, and a pedophile" can spark the need to set up a home-security system. Or think of those who have had job opportunities withdrawn over false accusations of racism or anti-Semitism. Or read about Kathrine McKee—surely this Court should not remove a woman's right to defend her reputation in court simply because she accuses a powerful man of rape. [Citations omitted. -EV]

The proliferation of falsehoods is, and always has been, a serious matter. Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires….

And from Justice Gorsuch:

The Bill of Rights protects the freedom of the press not as a favor to a particular industry, but because democracy cannot function without the free exchange of ideas. To govern themselves wisely, the framers knew, people must be able to speak and write, question old assumptions, and offer new insights. "If a nation expects to be ignorant and free … it expects what never was and never will be…. There is no safe deposit for [liberty] but with the people … [w]here the press is free, and every man able to read." Letter from T. Jefferson to C. Yancey (1816).

Like most rights, this one comes with corresponding duties. The right to due process in court entails the duty to abide the results that process produces. The right to speak freely includes the duty to allow others to have their say. From the outset, the right to publish was no different. At the founding, the freedom of the press generally meant the government could not impose prior restraints preventing individuals from publishing what they wished. But none of that meant publishers could defame people, ruining careers or lives, without consequence. Rather, those exercising the freedom of the press had a responsibility to try to get the facts right—or, like anyone else, answer in tort for the injuries they caused.

This principle extended far back in the common law and far forward into our Nation's history. As Blackstone put it, "[e]very freeman has an undoubted right to lay what sentiments he pleases before the public," but if he publishes falsehoods "he must take the consequence of his own temerity." Or as Justice Story later explained, "the liberty of the press do[es] not authorize malicious and injurious defamation."

This was "[t]he accepted view" in this Nation for more than two centuries. Accordingly, "from the very founding" the law of defamation was "almost exclusively the business of state courts and legislatures." As a rule, that meant all persons could recover damages for injuries caused by false publications about them.

This changed only in 1964 [with Sullivan, as to public officials]…. Three years later, the Court extended its actual malice standard from "public officials" in government to "public figures" outside government. Later still, the Court cast the net even wider, applying its new standard to those who have achieved "pervasive fame or notoriety" and those "limited" public figures who "voluntarily injec[t]" themselves or are "drawn into a particular public controversy." The Court viewed these innovations "overturning 200 years of libel law" as "necessary to implement the First Amendment interest in 'uninhibited, robust, and wide-open' debate on public issues."

Since 1964, however, our Nation's media landscape has shifted in ways few could have foreseen. Back then, building printing presses and amassing newspaper distribution networks demanded significant investment and expertise. Broadcasting required licenses for limited airwaves and access to highly specialized equipment. Comparatively large companies dominated the press, often employing legions of investigative reporters, editors, and fact-checkers. But "[t]he liberty of the press" has never been "confined to newspapers and periodicals"; it has always "comprehend[ed] every sort of publication which affords a vehicle of information and opinion." And thanks to revolutions in technology, today virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world.

The effect of these technological changes on our Nation's media may be hard to overstate. Large numbers of newspapers and periodicals have failed. Network news has lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that "monetize anything that garners clicks."

No doubt, this new media world has many virtues—not least the access it affords those who seek information about and the opportunity to debate public affairs. At the same time, some reports suggest that our new media environment also facilitates the spread of disinformation. A study of one social network reportedly found that "falsehood and rumor dominated truth by every metric, reaching more people, penetrating deeper … and doing so more quickly than accurate statements." All of which means that "the distribution of disinformation"—which "costs almost nothing to generate"—has become a "profitable" business while "the economic model that supported reporters, fact-checking, and editorial oversight" has "deeply erod[ed]."

It's hard not to wonder what these changes mean for the law. In 1964, the Court may have seen the actual malice standard as necessary "to ensure that dissenting or critical voices are not crowded out of public debate." But if that justification had force in a world with comparatively few platforms for speech, it's less obvious what force it has in a world in which everyone carries a soapbox in their hands.

Surely, too, the Court in 1964 may have thought the actual malice standard justified in part because other safeguards existed to deter the dissemination of defamatory falsehoods and misinformation. In that era, many major media outlets employed fact-checkers and editors, and one could argue that most strived to report true stories because, as "the public gain[ed] greater confidence that what they read [wa]s true," they would be willing to "pay more for the information so provided." Less clear is what sway these justifications hold in a new era where the old economic model that supported reporters, fact-checking, and editorial oversight is disappearing.

These questions lead to other even more fundamental ones. When the Court originally adopted the actual malice standard, it took the view that tolerating the publication of some false information was a necessary and acceptable cost to pay to ensure truthful statements vital to democratic self-government were not inadvertently suppressed. But over time the actual malice standard has evolved from a high bar to recovery into an effective immunity from liability. Statistics show that the number of defamation trials involving publications has declined dramatically over the past few decades: In the 1980s there were on average 27 per year; in 2018 there were 3. For those rare plaintiffs able to secure a favorable jury verdict, nearly one out of five today will have their awards eliminated in post-trial motions practice. And any verdict that manages to make it past all that is still likely to be reversed on appeal. Perhaps in part because this Court's jurisprudence has been understood to invite appellate courts to engage in the unusual practice of revisiting a jury's factual determinations de novo, it appears just 1 of every 10 jury awards now survives appeal.

The bottom line? It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. Under the actual malice regime as it has evolved, "ignorance is bliss."

Combine this legal incentive with the business incentives fostered by our new media world and the deck seems stacked against those with traditional (and expensive) journalistic standards—and in favor of those who can disseminate the most sensational information as efficiently as possible without any particular concern for truth. What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable. As Sullivan's actual malice standard has come to apply in our new world, it's hard not to ask whether it now even "cut[s] against the very values underlying the decision." [Elena] Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Soc. Inquiry 197, 207 (1993) (reviewing A. Lewis, Make No Law: The Sullivan Case and the First Amendment (1991)). If ensuring an informed democratic debate is the goal, how well do we serve that interest with rules that no longer merely tolerate but encourage falsehoods in quantities no one could have envisioned almost 60 years ago?

Other developments raise still more questions. In 1964, the Court may have thought the actual malice standard would apply only to a small number of prominent governmental officials whose names were always in the news and whose actions involved the administration of public affairs. Here again, the Court may have thought that allowing some falsehoods about these persons and topics was an acceptable price to pay to ensure truthful statements vital to democratic self-government were not inadvertently suppressed. Perhaps the Court weighed the costs and benefits similarly when it extended the actual malice standard to the "pervasively famous" and "limited purpose public figures."

But today's world casts a new light on these judgments as well. Now, private citizens can become "public figures" on social media overnight. Individuals can be deemed "famous" because of their notoriety in certain channels of our now-highly segmented media even as they remain unknown in most. See, e.g., Hibdon v. Grabowski (Tenn. App. 2005) (holding that an individual was a limited-purpose public figure in part because he "entered into the jet ski business and voluntarily advertised on the news group rec.sport.jetski, an Internet site that is accessible worldwide"). Lower courts have even said that an individual can become a limited purpose public figure simply by defending himself from a defamatory statement. Other persons, such as victims of sexual assault seeking to confront their assailants, might choose to enter the public square only reluctantly and yet wind up treated as limited purpose public figures too. In many ways, it seems we have arrived in a world that dissenters proposed but majorities rejected in the Sullivan line of cases—one in which, "voluntarily or not, we are all public [figures] to some degree."

Again, it's unclear how well these modern developments serve Sullivan's original purposes. Not only has the doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted. And the very categories and tests this Court invented and instructed lower courts to use in this area—"pervasively famous," "limited purpose public figure"—seem increasingly malleable and even archaic when almost anyone can attract some degree of public notoriety in some media segment.

Rules intended to ensure a robust debate over actions taken by high public officials carrying out the public's business increasingly seem to leave even ordinary Americans without recourse for grievous defamation. At least as they are applied today, it's far from obvious whether Sullivan's rules do more to encourage people of goodwill to engage in democratic self-governance or discourage them from risking even the slightest step toward public life.

"In a country like ours, where the people … govern themselves through their elected representatives, adequate information about their government is of transcendent importance." Without doubt, Sullivan sought to promote that goal as the Court saw the world in 1964. Departures from the Constitution's original public meaning are usually the product of good intentions. But less clear is how well Sullivan and all its various extensions serve its intended goals in today's changed world.

Many Members of this Court have raised questions about various aspects of Sullivan. Justice Thomas does so again today. In adding my voice to theirs, I do not profess any sure answers. I am not even certain of all the questions we should be asking. But given the momentous changes in the Nation's media landscape since 1964, I cannot help but think the Court would profit from returning its attention, whether in this case or another, to a field so vital to the "safe deposit" of our liberties.

NEXT: Justice Thomas Takes Another Shot at Qualified Immunity

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  1. Volokh, Thomas, Gorsuch bottom line: Who needs freedom of the press when the press doesn’t say what we want it say?

    1. Yeah that’s exactly what they said.

      Make sure that you can fit someone’s words within your preconceived political opinions, otherwise you won’t be able to function.

      1. He actually has a point — and doesn’t realize it.

        Property rights are perhaps the best example of this, with only those who own property being willing to defend property rights — and the telling part of this was in the 1992(?) LA Riots, neighborhoods in which over 50% of the people living there owned something didn’t burn.

        The same thing is my attitude toward academic freedom — as I never have and never will enjoy it, why should I care if my enemies have it?

        1. as I never have and never will enjoy it, why should I care if my enemies have it?

          I would say, “Because you’re a decent human being,” but of course that would be a lie.

        2. Ed, you don’t give a shit about civil rights, based on what you say. It’s easy to favor rights for your friends.

          It’s how you are toward the rights of people that you don’t like that tests your commitment. You just failed.

    2. “Who needs freedom of the press when the press doesn’t say what we want it say?”

      No freedom of the press before 1964?

      The pres existed and prospered before they got a special libel license.

  2. “should not remove a woman’s right to defend her reputation in court ”

    The first amendment speaks of a right to free speech. It doesn’t mention, curiously enough, a right “to defend your reputation in court”

    Also one always has a right to defend one’s reputation anywhere. You don’t have a right to sue others and deny them their right to speech … indeed, to talk of such a right is to make mockery of the concept of a right itself.

    1. Aladdin’s Carpet: It’s true that the First Amendment, like the rest of the Bill of Rights, speaks of rights against the government. But of course the law has long recognized rights against private actors, including the right to sue to vindicate one’s reputation; that is well within “the concept of a right itself.” Nor is there any reason to think that the First Amendment, or related guarantees in state constitution, were ever understood as creating such an absolute right against government action that all long-established rights to sue for libel or slander would be preempted.

      None of this tells us, of course, just how constitutional principles limit the libel or slander torts. It doesn’t even preclude an argument that the Court should interpret the First Amendment as absolutely abrogating such torts (though I think that argument, which I believe has never gotten even a single vote on the Court, is hard to sustain). My point is simply that American law has indeed long recognized a “right to defend [one’s] reputation in court,” in the sense of a right to sue for certain kinds of injuries to one’s reputation.

    2. Aladdin’s Carpet, so, just to be clear: Suppose I track down your real name and publish a story that you have a long history of raping babies and elderly women. An internet mob promptly forms, and within hours you’ve lost your job, your reputation, and your wife has filed for divorce. Your position is that you should have zero recourse against me because free speech?

      1. My position is that NYT vs Sullivan is a perfectly reasonable limitation on that recourse and that free speech is implicated if I were entitled to recourse beyond that. And if I should have recourse, it is to be defined by the legislature within those limits.

      2. That would fall pretty clearly within the actual malice standard and even if it didn’t, I am not a public figure.

        1. But there are a great many things that I have the right to do, and am still obligated to clean up any messes I make along the way. I don’t see this as any different from, say, allowing private ownership of firearms but still allowing people injured in accidental shootings to sue the guy that shot them. Nobody seems to think that violates the Second Amendment.

          Suppose you are a public figure. Suppose that even though nothing in my hypo is actually true, I still had some tenuous reason to think it is true. That defeats actual malice, but you still suffered harm. As a public figure, you probably suffered more harm than my neighbor Joe would, since more people would be interested in such a story about a public figure than they would about my neighbor Joe. Why should you just have to eat the harm that comes to you as the cost of me having free speech? Why am I, unlike the gun owner who accidentally shoots someone, not liable to clean up the mess I made? If I’m going to publish a story like that, don’t I have some obligation to be sure I’m right, just as the gun owner has a duty to look to see what’s in the direction of where he’s shooting?

  3. I do agree that today there are a lot of instances where one is a public figure, but only becomes a public figure because he or she is dragged into the limelight by the very criticism they regard as libelous. A video on social media goes viral, for example, but the video is edited in a libelous way. In those cases, it might be reasonable to pare back NYT vs. Sullivan. But certainly not generally.

    1. “certainly not generally’

      Why do you support the ability of the press to lie with practical immunity?

    2. Or how about when the c**t state attorney in Florida lied in the probable cause affidavit for Thugvon Martin? Or when the commie newscasters edited the tape of Zimmerman?

      Leftists are evil, lying, stupid people. They should all be gassed, and if they have children, their children should be gassed too before they grow up to be like their parents.

  4. Proving Malice –

    Take the case of Styen/simberg/NR/CEI

    My take is that all 4 intended to insult the quality of the Penn Investigation and by inference, insult the quality of Mann’s work with Malice.

    There is also substantial publicly available information strongly pointing to the substandard level of the Penn investigation along with substantive supporting scientific information pointing to what many in the scientific community consider substandard quality of the reconstructions. (excluding the activists)

    How does sullivan support the 4’s right to insult Mann’s work and to Insult Penn’s investigation in light of Sullivan

    1. Other than it needed doing — if this is the Mann from Planet UMass — See: https://www.youtube.com/watch?v=MeTuNES82O0

      It’s the parody exception — an it isn’t like Mann was insulted with an allegation of incest in an outhouse…

    2. You don’t even get to malice in that case because “truth is an absolute defense”. As you say, there is substantial evidence that the insults to Mann’s work were true and well-deserved. If it’s true, it’s not libel no matter what the author’s motivations were.

      1. As you say, there is substantial evidence that the insults to Mann’s work were true and well-deserved. If it’s true, it’s not libel no matter what the author’s motivations were.

        I concur
        Even if not true, There is substantial publicly available that a rational person would believe it to be true.

  5. It is much easier to libel a person these days than it was in the 1700s. Seems to me a lax standard for politicians to sue anyone who fires off a false, mean tweet paves a road we ought not go down. If anything, I would dispense with the protections politicians have to lie their about opponents.

  6. Can the federal government prevent the states from protecting peace and good order within each state by hearing/deciding claims for defamation? The ability to bring a civil suit for defamation goes to the beginning of this country and much earlier.

    Can the federal government prevent states from hearing civil suits for damages to property or persons caused by physical attack of one person to another or his property? Under which clause of the constitution could we hope to find such authority?

    If the federal government is to override the internal police of the states it needs to have some enumerated power which could be relied on to supply such authority. Under the 14th amendment the federal government is authorized to act when states refuse to uphold individual rights. But is there a Bizzarro 14th amendment which allows the feds to prevent the states from protecting individual rights?

    1. Mike Hansberry: If you’re talking about the federal power question, it comes from the Fourteenth Amendment, the Supremacy Clause, and Article III. The Fourteenth Amendment bans States from depriving people of liberty or property without due process; that applies to state courts as well as to state executive bodies. The Supreme Court has concluded that restrictions on freedom of speech and of the press — other than ones that fit within narrow exceptions, such as for certain kinds of libel — are denials of liberty without due process. (Perhaps it should have instead held that they are denials of the privileges or immunities of U.S. citizens, but the bottom line result seems right.)

      Therefore, when a state seeks to “protect peace and good order” by allowing massive damages awards based on speech, Article VI says that state courts have to view the First Amendment as a constraint on that (and Article III allows the Court, if given the jurisdiction to do so by Congress, to review state court judgments on this score). This is no different from the state’s power to “protect peace and good order” being constrained by the Second Amendment, by the Fourth Amendment, by the right to jury trial, by the privilege against self-incrimination, and more.

      There’s a separate question, of course, about just what the scope of the libel exception to the First Amendment ought to be — perhaps it ought to be broader than Sullivan and later cases have allowed. But whatever that scope is, the federal Constitution and the U.S. Supreme Court do play a legitimate role in defining that scope.

      1. “This is no different from the state’s power to “protect peace and good order” being constrained by the Second Amendment…”

        The obvious reply being that the second amendment does not protect anyone’s “right” to shoot people or property for any reason whatsoever. Though an overbroad reading of the second amendment might lead some to think that it does. Treating the freedom of speech so broadly that it protects defamatory statements is the same sort of foolishness. The right to swing one’s fist ends at the tip of another person’s nose.

        We agree that certain kinds of libel are not protected by the first amendment, so I will rephrase: under what power could Congress prevent the state from protecting the rights of their citizens to bring suits for that type of Libel?

        1. We agree that certain kinds of libel are not protected by the first amendment, so I will rephrase: under what power could Congress prevent the state from protecting the rights of their citizens to bring suits for that type of Libel?

          Well, in the context of the professional media at least, the commerce clause. See, e.g., the Gawker litigation, which was not about Hogan’s reputation, but about taking down a nationwide media outlet.

          1. Bollia won a substantial settlement. Was there some other litigation where that was set aside by the courts with a ruling that the CC trumps Bollia’s right to sue?

            1. No. Congress has not abrogated suits for defamation. I was simply responding to your question of whether they could, not whether they have.

          2. Assuming you are correct and the CC empowers Congress to do away completely with the authority of the states to enforce suits for Defamation, how far would this CC power go? Could congress forbid the states from punishing murder on some cockamamie idea that punishing murder is interfering with interstate commerce?

  7. “Justice White also powerfully criticized Sullivan, and drew some support from Chief Justice Burger”

    Mmm…White Castle burgers…wait, what were we talking about?

  8. The way I learned it, the justification for the Sullivan doctrine was who had access to the press.

    For example, if a major newspaper published lies about the mayor of New York City, the mayor had the ability to reply in the big media. He would simply hold a press conference a day or two later, and reporters from multiple papers and TV stations would show up and print his reply. And therefore, it seemed reasonable to expect public figures to use that method of responding in kind rather than suing for libel. A private figure, though, didn’t have that method available to him, so he had to have recourse to a (relatively) easy libel suit.

    Now enter the Internet. The Internet, as it was before social media, could be used equally by anybody. If somebody, big or small, libeled you on a Usenet newsgroup, you could reply in the group and be reasonably sure your reply would reach as many readers as the message you’re responding to. So I would have said that under those conditions, the law should consider everyone to be a public figure, so that all victims are expected to talk back rather than sue.

    But social media have changed that back again. Someone can post on Twitter or Facebook that because I’m a Trump supporter, I must be a dangerous white supremacist. And Facebook’s management would not permit me to reply. (And competing social media are not likely to reach most of Facebook’s audience.) So that lack of a reliable ability to reply should make me a non-public figure again.

  9. Watching conservatives and Republicans — most of whom are dumb and low-character enough to qualify as QAnon-stolen election-Jewish space laser-birther kooks with virus-flouting, superstitious, bigoted, half-educated tendencies — rail about the lack of credibility and value of our strongest mainstream news reporting institutions is humorous . . . and strangely comforting.

    This is how you guys propose to rebuild a competitive position in the American culture war?

  10. I am not thrilled with Gorsuch’s take, but I would note that he does not deserve to be blindly lumped in with Thomas. Thomas’s position is “Sullivan, Schmullivan, it’s wrong and precedent doesn’t matter so it should be tossed overboard.” Gorsuch did not join Thomas’s dissent, and said, “We should consider whether conditions have changed since 1964 so as to make Sullivan unnecessary (or at least modifiable.)”

    1. Nuance is Fake News.

  11. If Gorsuch realy wanted to confine the Frist Amenment to its “original public meaning” he would not have joined in the decision striking down California’s disclosure requirements (on First Amendment grounds) yesterday. As for Thomas, while I don’t agree with him, I do enjoy the way he trolled the libs by citing Pizzagate as an example of what *Sullivan* allegedly led to. (This makes no sense, becase the Pizzagate lies clearly showed actual malice, but it is nice trolling. )

  12. Gorsuch misleads readers and distorts (OK, misconstrues) the “actual malice” standard when he says:
    The bottom line? It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. Under the actual malice regime as it has evolved, “ignorance is bliss.”
    If you publish without investigating or fact-checking, you’ve done so with reckless disregard whether it’s true or false. That IS the Times v. Sullivan definition of “actual malice.“ If that’s a publisher’s strategy, it should be a losing one if the actual malice standard is properly applied by a court.
    FWIT, we need to keep in mind that the Ala libel judgment against the Times was not for a new story or editorial but an ad that ran in the paper.

    1. If you publish without investigating or fact-checking, you’ve done so with reckless disregard whether it’s true or false. That IS the Times v. Sullivan definition of “actual malice.”

      No; that’s negligence. Reckless disregard requires that one demonstrate that the speaker had doubts (or, of course, knew that it was false) but published anyway.

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