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Free Speech

Journal of Free Speech Law: David McGowan's A Bipartisan Case Against New York Times v. Sullivan


The article is now published, at 1 J. Free Speech L. 509 (2022); here's the Introduction:

The actual malice rule of New York Times Co. v. Sullivan is iconic because of its beneficiaries, not its reasoning. The immediate beneficiaries of that rule were civil rights advocates and their movement; the general beneficiaries at the time were established media firms. Benefits to civil rights advocates, and the intolerable prospect that libel laws could be used to suppress reporting of Southern racism, give the case its moral force.

Benefits to established media firms likely account for the expansion of the holding over time, and for its entrenched status, but new classes of speakers enabled by innovation embrace the rule as well. At this point, the rule may benefit such speakers more than, and at the expense of, firms willing to invest in accuracy.

The opinion's reasoning is a pastiche of history and topical concerns held together by a plausible assumption about the economic incentives of publishers and an unstated assumption about the cost structure of publishing, and thus about the supply of information. The cost structure assumption no longer holds, and the reasoning alone is insufficient to justify the actual malice rule.

Apart from respect for precedent as such, therefore, the case for retaining that rule is weak. Current calls to revisit the case are more pronounced on the Right, but there is good reason to rethink the actual malice rule regardless of one's political views. Corollary doctrines—that, at least in cases involving matters of public concern, a defamation plaintiff must prove falsity, fault must be shown to establish liability, damages must be proved unless at least recklessness is shown, and factual findings receive de novo review—should remain.

Check out the whole thing!

By the way, the article was submitted on Oct. 15, accepted Oct. 19, and published now three months later. And that delay was in part because the author wanted to make some more edits—which may in part have stemmed from the blind reviewers' suggestions and then from suggestions from commentators at an online workshop we put together; both of those are part of the service that the Journal offers to authors. Had there been more reason to get the article out quickly, we could have done that, within a few weeks if necessary.

NEXT: Scientology Arbitration and the First Amendment: Some Questions About Bixler v. Superior Court

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  1. Interesting timing, coming in the week Palin v. NY Times was supposed to start with jury selection.

    Frankly, the mere existence of that case ought to give the Times' publishers pause - should have, long ago - because any public-figure plaintiff who gets past summary judgment and appellate review can easily be said to have a meritorious case. And that plaintiff should win.

    1. Yeah, but what damages?

  2. A Federalist Societeer offers a "bipartisan case" against the mainstream press in a journal that seems tilted toward the disaffected right to remarkable degree for a modern legal academic journal.

    Touted at an "often libertarian" blog, no less.

    Carry on, clingers.

    1. Yes, I noticed this, too. First, we got a series from the "Journal of Free Speech Law" telling us about how re-thinking media companies as "common carriers" could allow the government to regulate speech on their platforms. Now, we get to see an argument for rolling back the freedom of speech, in order to ensure better-quality reporting.

      Gosh, I wonder what might happen if politicians are empowered to go after critical reporting with libel claims that are more likely to go to discovery and trial!

      1. SimonP: I wonder that too -- which is why I'm skeptical about the proposals to reverse NYT v. Sullivan. But the Journal of Free Speech Law isn't about publishing things that I agree with, and it isn't even about publishing things that the blind reviewers agree with. It's about publishing articles that the reviewers think are well-reasoned and sufficiently novel -- and I think this article very much qualifies as that.

        As to rethinking media companies as common carriers, I do tentatively think that's sound as to some of their functions (which I say in my article). But you might have noticed that several articles in that symposium issue took the opposite view from mine -- and I'm very glad that we had that sort of mix of views.

    2. If Kirkland didn't have ad hominem arguments, he'd have no arguments at all.

      1. "Ehhhh Johnny, sex life, are you kiddin'? If it weren't for pick pockets, I'd have no sex life at all."

  3. If I were elected king of SCOTUS, I'd leave NYT v. Sullivan intact but dial back St. Amant. That's the one that arguably takes the doctrine too far. It effectively says that a crazy person can't commit defamation because s/he actually believes the crazy but false things s/he's saying.

    And by crazy person, I mean Sidney Powell.

    1. It effectively says that a crazy person can't commit defamation because s/he actually believes the crazy but false things s/he's saying.

      Assuming the sincerity of the belief as you must for this analysis, would you bucket such a statement as having been made with "knowledge that it was false" or "reckless disregard of whether it was false or not"? Why?

      1. The latter. St. Amant says that it's purely a subjective test — did the speaker actually entertain serious doubts as to whether the statements were true? I think that a better test is whether a sane person would've entertained such doubts.

        To be clear, I'm not arguing for a negligence standard; that offers too little protection for speech about public figures. I'm saying that mere sincerity should not be sufficient, however.

        1. I think that a better test is whether a sane person would've entertained such doubts.

          I get the temptation, but by shifting to an objective standard in the quest to correct a corner case you're highly likely to suppress a substantial segment of speech from ordinary people who are perfectly sane but just can't predict how they're going to be second-guessed down the road (by, ironically enough, subjective judgments from experts/judge/jury about how the objective standard applies to a particular set of facts).

          This is a line that's impossible to draw exactly right, so the question will always be whether the standard errs on the side of allowing speech or chilling it. St. Amant itself actually discusses that on the way to its holding.

  4. The problem isn't even NYT vs Sullivan. It's the discretion of judges to effectively nullify all defamation law.

    I'm reminded of initial dismissal of the Covington Kids lawsuit. The judge twisted language on its head (going by memory so all quotes are paraphrased). The most memorable to me was that he said "Swarmed" was an opinion word and under no conditions could the sentence "the teenagers swarmed the native elders" be defamatory. However, while "swarmed" is rhetoric compared to "surrounded", it is completely opposite to the objective truth of "the teenagers stood still as the natives pushed through the crowd".

    While he did reconsider his judgement and it did eventually lead to a settlement, this initial ruling showed complete disdain for the very concept of libel.

  5. The benefits and purpose of NYT v. Sullivan isn't accuracy. It's something far more important than that.

  6. The rationale New York Times v. Sullivan is something along the lines of, "Vigorous coverage of government officials is so critical, it demands we tolerate the occasional falsehood." I believe the Court severely undercut this reasoning when it extended it from "public officials" to "public figures". Does a free society really require as robust coverage of Hollwood celebrities as of government officials?

    Needless to say, the journalistic landscape of 2022 is very different than that of 1964. The Court in 1964 was chiefly thinking of large, well-funded news organizations that would generally exercise responsibility (whether that was accurate or not). It did not envision bloggers and podcasters who barely pretend to care about responsibility or accuracy. They have abused NYT v. Sullivan which makes it practically impossible for a public figure to recover for defamation.

    In 1964, the Supreme Court decided to overturn 200 years of libel law, though I think journalism was doing fine under the pre-Sullivan of "publish at peril". I believe society (and journalism) would be better served to return to that standard.

    1. Most of the conservative opposition to New York Times v. Sullivan derives from objections to mainstream, professional journalism (New York Times, Washington Post, major networks, etc.), in line with general conservative disaffectedness with respect to modern America and its strongest institutions.

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