The Volokh Conspiracy

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Free Speech

Thomas Calls for Reconsidering New York Times v. Sullivan

Well, it's Judge Bradford Thomas of the Florida Court of Appeal, but still an interesting synthesis of recent criticisms, with some extra analysis added.


The case is Mastandrea v. Snow, handed down yesterday; here's an excerpt from Judge Thomas's concurrence:

I concur because I am bound by the decision of New York Times v. Sullivan (1964).

But I agree with Justice Clarence Thomas, Justice Neil Gorsuch, Judge Lawrence Silberman, and others, that New York Times was wrongfully decided and was not grounded in the history or text of the First Amendment. Appellant and other public-figure defamation plaintiffs should not have to prove that the alleged defamation was made with the knowledge that it was false or with reckless disregard of the truth, as this is an "almost impossible" burden ….

New York Times has inflicted real injury on society:

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 Or think of those who have had job opportunities withdrawn over false accusations of racism or anti-Semitism.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.

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.

Berisha v. Lawson (Thomas, J., dissenting) (mem.) (emphasis added)….

And once a person's public reputation is destroyed, there is little opportunity for rehabilitation. It is a rare day indeed when a media outlet or a private actor publishes a front-page or lead story about how their false statements destroyed a person's reputation. And far too often, the defamed would-be plaintiffs do not have the financial resources to even attempt to overcome the "actual malice" standard created by the court in New York Times….

The decisions in New York Times and its progeny have established an environment in which anyone who might enter the public arena knows that they may be injured by defamation for which there is effectively no legal recourse. In addition, it has led to the destruction of reputations of many who never consented to becoming a so-called "public figure." No doubt this state of affairs since 1964 has diminished the public good from civic-minded citizens who understandably decline to offer their insights, energy, and wisdom to their fellow citizens, given this legal environment.

Such is the grave injury inflicted on the body politic and on innocent people who cannot now rightfully and legally defend their honor and character from the devastating injuries inflicted by defamation. A person's reputation is integral to their dignity as a human being. Rosenblatt v. Baer (1966) (Stewart, J. concurring) ("The right of a [person] to the protection of his [or her] own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty." (emphasis added)).

When the media or a private actor defames a victim, the culpable party in essence "steals the reputation" of the victim through character assassination. When a court decision deprives the defamation victim of their legal ability to recover any damages for the theft, that decision is unjust, as it deprives the victim of what is rightfully owed to them.

This is both a violation of the original understanding of the United States Constitution and natural justice:

In this case the right of the plaintiff which defendant is alleged to have infringed was the right to the security of his reputation. 'The security of his [or her] reputation or good name from the arts of detraction and slander,' Blackstone says, 'are rights to which every [person] is entitled by reason and natural justice; since without these, it is impossible to have the perfect enjoyment of any other advantage or right.'

New York Evening Post Co. v. Chaloner (2d Cir. 1920) (emphasis added)….

The particular case involved a lawsuit by a city councilman against a resident, based on the resident's allegedly telling people that the councilman "was 'on the take' with respect to" a particular commercial developer's application for rezoning, "is or was working for the developer," and "was on the developer's payroll." The trial court dismissed under the New York Times standard, finding "that there was no evidence that the resident knew her statements were false or that the statements were made with a reckless disregard for the truth"; the Court of Appeal agreed.