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Also on New York Times v. Sullivan, from Leading Liberal Law Prof. Genevieve Lakier

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From a Washington Post op-ed today by Prof. Lakier (who is at the University of Chicago Law School):

[R]eturning to the pre-Sullivan standard would create problems of its own. Most important, it would leave journalists and other public speakers vulnerable to the kind of politically motivated litigation that the Times faced in 1964, when, after the newspaper published an advertisement containing minor factual inaccuracies about civil rights movement in Alabama, a phalanx of segregationist forces tried to use libel suits to run the paper out of business—and almost succeeded. No one who cares about an independent press in the United States should view the return of this state of affairs as a positive development.

But the Sullivan rule is not the only mechanism one could devise to protect press freedom against vexatious litigation. There are many other changes to the law that could be made to make defamation lawsuits less expensive and ensure that public figures and officials could more easily defend their reputation when defamed.

Most obvious among these are damage caps, which could be used instead of the actual malice rule to limit the possibility that libel lawsuits could drive media organizations out of business…. Stronger statutory protection against politically motivated litigation, at both the state and the federal, could also help reconcile protection for reputation with press freedom in the Internet age. Changes to court procedure could limit discovery and otherwise shorten the length and expense of libel trials so that media organizations don't have to dedicate as much time, energy and money to defending them. And venue rules could help ensure that media organizations do not get hauled into court before hostile out-of-state juries.

Rather than talking seriously about these kind of reforms, though, debates about the future of libel law overwhelmingly focus on the Sullivan standard, divorced from the rules and facts surrounding it. Perhaps that's not surprising: The rule is an icon of American constitutional law and unique in the common law world. It's an emblem of American free speech exceptionalism and a source of pride. But it's also, to some extent, an accident of history. We need not let Sullivan limit our imagination of how First Amendment law could better serve the public interest in a vastly different media environment from the one in which the decisionwas originally handed down.

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  1. "Most obvious among these are damage caps, which could be used instead of the actual malice rule to limit the possibility that libel lawsuits could drive media organizations out of business."

    Great for defendants with deep but not unlimited pockets, like Gawker. How about me? How do we protect private criticism of the government?

    I know Gawker wasn't defamation, but it's the closest case that comes to mind. They said mean things and got sued into oblivion. A cap on non-economic damages would have kept the media entity in business.

  2. For what it’s worth, wvery solution to an old problem creates a new one.

    Damage caps designed with impoverished media companies and old-fashioned journalists in mind would leave rich individuals and political organizations free to defame people with virtual impunity. While perhaps the defendants’ resources should be considered in setting damages. absolute damage caps do mot do this.

  3. "source of pride"

    Special protection for media is a source of shame.

    Because of diversity jurisdiction, most media libel cases are going to be heard in federal court. Those courts are quite able to protect against "phalanx of segregationist forces" abusing the law.

    1. Just to be clear, the First Amendment protections against libel liability apply to all people who speak to the public, whether "media" or not. Indeed, some of the prevailing defendants in NYT v. Sullivan itself (the people who organized the ad) weren't members of the institutional media.

  4. I was in law school when Times v. Sullivan came down. Having just spent considerable time studying Torts, I thought at first that the Times decision was unreasonable. Then people explained to me that otherwise Southern courts would use defamation law to undermine civil rights actions. Well, I thought that was a legitimate concern.
    So I suppose the question NOW is whether government officials and commenters on government behavior need to be protected against crticism by concerned citizens.

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