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 Or think of those who have had job opportunities withdrawn over false accusations of racism or anti-Semitism.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

Comments

[DaivdBehar]

No one who has ever been in the press says the representation was ever accurate. NY Times should be rescinded. The Code of Ethics of Journalism should be adopted as the professional standard of due care in legal liability claims.

[Rossami]

While I appreciate the position of the dissents above, the inverse is also true. The prior standards were so deferential to the reputations of the politically connected and powerful that it was functionally impossible to call for investigations of corruption, undue influence, etc. It's important to remember that we got to this standard because the old standard wasn't working.

[bernard11]

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.

So what does "reckless disregard for the truth" actually mean? If a baseless accusation, like this one, doesn't fit the definition, what does?

[Sarcastr0]

Yeah, this seems to me to meet the recklessness standard - not caring about the truth.

[Eugene Volokh]

For whatever it's worth, here's the Court definition of "reckless disregard" from Harte-Hanks Communications v. Connaughton (1989):

[To qualify as having acted with reckless disregard,] we have made clear that the defendant must have made the false publication with a "high degree of awareness of ... probable falsity" or must have "entertained serious doubts as to the truth of his publication."

The defendant must therefore have been consciously aware of a high risk that the statement was false -- mere gross negligence isn't by itself enough.

[Dilan Esper]

Here's a useful distinction:

1. If I say "Joe committed the murder", and I know that he didn't commit the murder (say, I witnessed the murder or am aware that someone else's fingerprints and DNA were found at the scene), that's knowledge of falsity.

2. If I say "Joe committed the murder", and I really have no idea at all what the evidence shows, that's negligence.

3. If I say "Joe committed the murder", and I am aware that there was an independent investigation that exonerated Joe, and purported to detail all sorts of evidence that showed that he could not have committed the murder, and I deliberately choose not to read the report and familiarize myself with the evidence before making my statement, that's reckless disregard.

[Michael Masinter]

See also the Florida Third District Court of Appeal's excellent discussion beginning on page 15 in Luna Lam v. Univision Communications, Inc., https://law.justia.com/cases/florida/third-district-court-of-appeal/2021/3d19-2204.html.

[Dilan Esper]

My case. I don't know if you knew that.

[Ridgeway]

#3 matches up with my understanding. "Reckless disregard" is much closer to willful blindness than it is to the MPC definition of "recklessness" we all learned in law school.

[Sarcastr0]

Thanks - this clears it up. EV's post had me scratching my head and questioning my memory of crim law.

[Craig Johnston]

Isn’t #2 also reckless disregard? If I have no idea whether he is guilty or not, shouldn’t I “entertain serious doubt as to the truth” of the statement if I have no evidence one way or the other?

[Ridgeway]

No. "I was too lazy to check" is pretty much a complete defense to libel against a public figure.

[Stephen Lathrop]

To qualify as having acted with reckless disregard,] we have made clear that the defendant must have made the false publication with a "high degree of awareness of ... probable falsity" or must have "entertained serious doubts as to the truth of his publication.

And that, right there, is the entire problem. Note that it is not NYT v. Sullivan that imposed it. As written, NYT v. Sullivan made knowledge of falsity and reckless disregard distinguishable in principle. Under the 1989 case that distinction became a near-conflation. Get rid of that near-conflation and the problem will be solved—after you also get rid of Section 230 to reset the libel-law switch to, "ON" for online libel.

[David Nieporent]

That was the governing standard long before "the 1989 case." See St. Amant v. Thompson in 1968.

[ReaderY]

The purpose is to punish people who recklessly and maliciously employ fact checkers.

If you check facts, you can attain actual knowledge that your statement is false.

But a wise and virtuous person who seeks to avoid legal liability and is careful always to conduct themselves in the manner the law incents, realize that those who do not concern themselves with facts as foolish and reckless do, who are careful and prudent and thoughtful enough not to pay any attention to facts at all, thereby immunize themselves from the consequences of facts being wrong, and hence from libel liability.

[ReaderY]

Those prudent and careful not to be aware, not to think, to act on impulse and not to doubt themselves, wisely preserve themselves both from having any degree of awareness of probable falsity (let alone a high degree), and from entertaining any doubts (let alone serious ones) as to the truth of their assertions.

The law punishes concern for truth, self-awareness, and self-doubt. It rewards their lack.

That’s what it does.

[Rossami]

I fear I must draw your attention to the lawsuits that led up to the Sullivan decision. While some were against the foolish, the reckless or the outright malicious, other lawsuits were being pursued against people who were careful to check as many facts as could be checked. Many of those lawsuits were never expected to win at trial - the lawsuit itself was the punishment. It was sufficient to disincent even the virtuous from accusing the powerful of corruption.

While you are correct that the current rules reward willful ignorance, merely returning to the prior rules would mean returning to the prior problems as well.

[Stephen Lathrop]

Rossami, Sullivan as written hit the sweet spot. Sullivan as subsequently modified—to conflate reckless disregard with knowledge of falsity—is what incentivized, and continues to incentivize, flagrant disregard for the truth as a means to avoid libel responsibility.

That said, Section 230 has more-or-less bypassed the whole print concept of publisher liability, and almost moots everything these days.

[ReaderY]

I think it could be argued that subsequent extensions of Sullivan rather than Sullivan itself are the problem. Perhaps Sullivan could be interpreted more narrowly without actually overruling it.

And I agree the real problem is as you stated it. Sullivan as interpreted means that duties to check facts are unconstitutional. Only people who check facts and disregard their research can be liable, people who do no research at all are completely immune. Reckless disregard, which still imposes some duty to check facts, has been discarded and actual knowledge of falsity substituted. This permits people to avoid liability simply by avoiding knowledge.

The completely ignorant and completely reckless are privileged and immune, able to spread falsity with complete impunity. Those who attempt to make some effort to tell the truth are punished if they make any mistake.

Sullivan as interpreted turns the original intent behind the decision completely on its head, punishing caring about the truth and rewarding complete indifference to it, richly rewarding complete dishonesty and savagely punishing honest people whenever their honesty is less than perfect.

[ReaderY]

It turns American justice into something out of Aesop’s fable of the wolf and the lamb.

[David Nieporent]

Sullivan as interpreted means that duties to check facts are unconstitutional. Only people who check facts and disregard their research can be liable, people who do no research at all are completely immune.

This is only true with respect to public officials/public figures.

[F.D. Wolf]

The underlying rationale for NYT v. Sullivan was that zealous coverage of government officials is so critical to a free society that it requires toleration of the occasional falsehood. (And, to make matters worse, "public official" morphed into "public figure" and then even to "limited public figure", which might include any unfortunate individual who finds himself who doesn't seek attention yet finds himself dragged into the limelight.)

Intended as a shield for journalists who might get a little overzealous in exposing government malfeasance, it has, for practical purposes, become a license to lie with impunity, making it virtually impossible for a "public figure" to win a defamation suit. I truly wonder if the justices who made the decision in 1964 would have made the same decision if they could have seen what journalism has become in 2022.

[Rev. Arthur L. Kirkland]

You seem disaffected, estranged from modern America, F.D. Wolf. A combination of authoritarianism and obsolete right-wing crankiness.

[OldCurmudgeon]

>"limited public figure", which might include any unfortunate individual who finds himself who doesn't seek attention yet finds himself dragged into the limelight.)

+1 Separate from the 'recklessness' standard itself, a major problem is that media/government are often able bootstrap individuals into that higher standard via the defamation. This seems like an obvious area for reform.

[Michael Ejercito]

Sullivan itself did not go that far.

[John Rohan]

I don't have a strong opinion on NYT vs. Sullivan, but that case was a unanimous decision in 1964. If the current court repeals it, that would show a huge shift in how SCOTUS is interpreting the Constitution.

[QuantumBoxCat]

One way to diminish the force of a right (in this situation, the First Amendment) is to push back against it with a competing right.

Why not draw on Blackstone's "Absolute Rights of Individuals," in which he states that "The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. Construct an argument showing that an individual's right to his reputation is deeply rooted in our common law system and that this right should be recognized and granted constitutional protection. From this, an argument can then be made that an individual's (or the Press') First Amendment rights must give way, at some point, to a person's reputational rights.

Start the process by writing some blog posts, then move to the more traditional law reviews. Lower court judges with a similar mindset can then cite the law reviews in their concurrence/dissent. And from there, like minded Supreme Court justices can cite the lower court judge's opinion. Winrar.

[ReaderY]

Why should everything always be constitutionalized, so that federal judges are always the people to do the balancing whenever there’s a balance needed between competing interests?

[QuantumBoxCat]

I was just putting forth a legal strategy for pushing back against Sullivan, which, given Eugene's recent posts, appears to be his angle.

Personally, I don't think everything should actually be constitutionalized as it deprives everyone of their collective right to self-govern. If this collective right could ever actually be recognized as a constitutional right, then maybe it could push back against the power of the judiciary.

[tkamenick]

"is reputation is deeply rooted in our common law system and that this right should be recognized and granted constitutional protection"

Ok, and that means that government can't improperly harm your reputation. That doesn't give you a protection from private action. I don't think that gets you where you want to be.

[F.D. Wolf]

It is impossible to separate NYT v. Sullivan from the context of the civil rights movement.

Say you're the sheriff if Jefferson Davis County in 1960 in some Deep South state, and you feel some Northeastern big-city newspaper has besmirched your honor. So you sue for defamation, The case will be decided by an all-male, all-white jury, most of whom might be in the Klan, in front of a judge with the Confederate battle flag above the bench. Where will the jury's sympathies lie? With the "Jew" York TImes? Probably not.

But we don't have to pretend we live in that world anymore, and maybe it's time to recognize the "constitutional" rule established by Sullivan no longer serves its purported purpose.