The Case for Preserving New York Times v. Sullivan

I haven't read this new white paper yet from the Media Law Resource Center (it's about 200 pages long), but it seems quite interesting; here's the Table of Contents [UPDATE: link to paper fixed]:

Preface • iii Floyd Abrams
Introduction and Executive Summary • 1
Chapter 1: A Response to Justice Thomas • 9 Matthew Schafer
Chapter 2: A Response to Justice Gorsuch • 79 Richard Tofel and Jeremy Kutner
Chapter 3: The Empirical Reality of Contemporary Libel Litigation • 97 Michael Norwick
Chapter 4: The Reality of Contemporary Libel Litigation • 139 Ballard Spahr LLP and Davis Wright Tremaine LLP
Chapter 5: English Libel Law and the SPEECH Act: A Comparative Perspective • 169 David Heller and Katharine Larsen
Afterword • 193 Lee Levine

Comments

[SundanceInGlentucky]

Can you fix the link to the file please?

[ah....Clem]

Either that or grant us all access to your C: drive. (c:

[Eugene Volokh]

Whoops, fixed, thanks!

[DaivdBehar]

This doctrine is ridiculous. It involves mind reading, a supernatural ability, and lawless in our secular nation. It should be replaced by the standards of professional due care, clearly listed in the Journalism Code of Ethics. This will allow the profession to regulate itself. No mind reading is involved in those standards.

https://www.spj.org/ethicscode.asp

[DaivdBehar]

Of course, the paper is vile fake propaganda, funded by vile fake oligarchs to promote their vile fake enterprise. The Sullivan doctrine does not protect dissident poets. It protects the vicious oligarchs who own nearly all the media. Almost all journalism commits the Exception Fallacy in order to brind eyes to advertisers. They put moribund people dying of pneumonia as they always had on the front pages to shut down the economy, to defeat Trump, a shoo in. Now that Biden is President, Covid has disappeared, even when the death counts are double what they were in Trump's time.

I have never met anyone in the papers who has ever been treated accurately, let alone fairly. All journalism is garbage hate speech with the credibility of the David Duke web site. The latter lies by highly selecting facts to make blacks and Jews look back. Not one difference with the NY Times. The sole exception is C-SPAN. Brian Lamb said he counted stories to keep a balance. He is the only one complying with the journalism code of ethics in this country.

The privileged, immunized scumbag lawyer is not helping the privileged, immunized, scumbag media. Immunity fully justifies violent reprisal in formal logic. It will visit both scumbag enemies of our nation.

[Queen Amalthea]

You're an idiot. But what impresses me is that you take idiocy to new realms and dimensions.

[DaivdBehar]

Come on, Queenie. Tell us your race. I need that for your letter to help you find a job worthy of you.

[Queen Amalthea]

An idiot incel. What your mom must have done to you...

[DaivdBehar]

Queenie, what are you ashamed of? You should be proud. Say it loud.

[Queen Amalthea]

I've said it many times, are you deaf and illiterate as well as an autistic authoritarian incel?

[DaivdBehar]

Say it again. I missed it. Come on Queenie, be proud.

[DaivdBehar]

Queenie. I think you are trying to insult me. Is that right? Are autism and mental illness an insult to you?

[DaivdBehar]

"MLRC is supported by nearly 140 media members, including America’s leading publishers, broadcasters, cable programmers, digital companies, and media insurance professionals, and about 200 law firms in the United States and around the world that specialize in media defense representation."

All woke enemies of our nation.

[DaivdBehar]

Namely the oligarchs using the media to enrich themselves. Their propaganda shut down the economy and caused them to make an extra $2 triilion from greater use of the internet.

No one is suing a dissident poet. This paper is disgusting and vile lying by lawyers.

[Bored Lawyer]

So here is a proposal. In exchange for journalist privilege (now only recognized in NY, I believe), the institution and its employees have to agree to a lower standard than Sullivan, perhaps gross negligence or even mere negligence.
I think such legislation would be Constitutional.
Thoughts?

[Toranth]

I'm not sure it would improve much for television, although maybe it'd help for print.
Remember that a disturbingly large portion of US adults get their news from The Daily Show which would presumably not be subject to anything related to journalism.

[ah....Clem]

Replace The Daily Show with "Fox News" and you get the main reasoning in this opinion aka known as the "Fox News Defense":

https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2019cv11161/527808/39/

As Fox's attorneys argued, the material prefaced with

"Remember the facts of the story. These are undisputed." (quote from the broadcast)

“cannot reasonably be interpreted as facts” (quote from the lawyers in their motion to dismiss).

[Rev. Arthur L. Kirkland]

Conservatives hate journalists (along with most mainstream institutions, legitimate education, and modern America). The only privileges clingers seem to accept involve childish superstition and guns.

Fortunately, modern America rejects conservatives preferences. Right-wingers can continue to nip at the ankles of their educated, reasoning, literate, experienced, accomplished betters -- such as journalists and legitimate newspapers -- but it won't do them much practical good.

[DaivdBehar]

Artie, you may right. Those interests are those of the woke oligarchs. You just promote their interest in kowtowing to China for access to its market and their enrichment. I see you as a servant of the Chinese Commie Party.

[Toranth]

While it is amusing for Leftists to hit on Fox ever since a satire website went viral a decade or two ago, you probably should have chosen a different case, since that one dismissed the suit because of the specific words and context used, not because of some general "Fox News is actually entertainment" principle.

But it is true that the opinion programs and columns - on every network or paper - are quite publicly defending themselves from any responsibility for what they say by declaring themselves 'not news'. Do you remember the NBC News rigging trucks to explode, or CBS faking chemical tests? Guess what defense was used?
(Aside: Wow, 60 Minutes had to settle a lot of fake-news and defamation cases)

As long as the lines between "News", "Opinion", and "Comedy" are as blurry as they are, it's far too easy to defame someone, then run a laugh track and claim "It was all a joke".

[TwelveInchPianist]

"“cannot reasonably be interpreted as facts” (quote from the lawyers in their motion to dismiss)."

I'm not sure what your BlueAnon conspiracy sites are telling you about this, but sometime opinion commentators say things that are statements of opinion, and not facts.

A quote with a little context:
"The First Amendment protects purportedly defamatory statements that “cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.”

Which is perfectly accurate.

[Bored Lawyer]

You may be right. But a side benefit is that those institutions that actually care about standards will put their money where their mouth is. Which means the Daily Show and its ilk are now second-class purveyors of information.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Define journalist, for the purposes of journalist privilege, and how that would pass First Amendment muster.

[Lee Moore]

And 14th Amendment muster.

How can "journalist privilege" be consistent with the "equal protection of the laws" ?

[Bored Lawyer]

Well, that currently is the law in NY, so your 14th Amendment issues are already there.

As for defining a journalist, anyone can qualify. You just have to agree that, in exchange for a privilege for gathering information, you agree to a lower standard for libel than under NY Times v. Sullivan. The same deal is available to the NY Times or to Joe Blogger who publishes a blog in his basement.

[Rev. Arthur L. Kirkland]

" You just have to agree that, in exchange for a privilege for gathering information, you agree to a lower standard for libel than under NY Times v. Sullivan. "

Says who? A collection of bigoted, obsolete, right-wing malcontents who hang out at a white, male, fringe blog for movement conservatives and faux libertarians?

[Bored Lawyer]

Let me know when you have an original thought in your head. Maybe April Fool's Day.

[Queen Amalthea]

How can higher penalties for assaulting/killing/etc., a police officer be consistent with "equal protection of the laws?"

[Stephen Lathrop]

Such legislation by states, or by congress?

[Queen Amalthea]

It's always hilarious to see the kind of conservative extremist who makes sweeping, reckless leaps to conclusions, and of course loves media sources that do the same, argue for looser libel laws. I think it'd be a shame for political speech in this country but it might be worth it watching those uber-professional news agencies/figures such as Tucker, Alex Jones, OAN, etc., (who already have had to deal with libel losses or threats under the *current* standard) deal with a lower standard for plaintiffs.

Often a conservative can be defined as a person who has no grasp on what their interests are or how to advance them but know at least how to harm the interests of those they hate (and, initially at least, don't mind going out with their enemies).

[Queen Amalthea]

BTW-that type of conservative makes this silly move largely because they've been fed the 'MSM is hurting us' line so much they just want to see the 'MSM' get kneecapped.

[DaivdBehar]

Queenie. Brilliant comment. You deserve a better job. I want to help.

[Rip Murdock]

I would also add that the "conservative" pundit class and forums that rage against Section 230 would find themselves knee-capped by its repeal. Places like Free Republic, Gab, Parler, Truth Social (once it gets its act together), Gateway Pundit, and Breitbart will be forced to either defend themselves from lawsuits based upon ravings of their posters, or employ even stricter moderation policies, or forgo comments all together. They actually benefit from 230 as much as Twitter, Facebook, etc.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy wouldn't stand much of a chance, either. It's in the column with FreeRepublic, Breitbart, Hot Air, StormFront, One America, Instapundit, Gateway Pundit, and the rest of the clingerverse.

[Rip Murdock]

Sadly, you are correct. It's really gone downhill.

[Stephen Lathrop]

Actually Rev, the VC would be a cinch to moderate. Like the vast majority of internet discourse, it is nearly fact-free. Just opinions. Very little here would ever need editing to prevent libel. That says nothing about the value of editing to improve content quality, but that takes us far afield.

[David Nieporent]

Actually, Lathrop, that's not how it works. The issue isn't preventing libel; the issue is preventing libel suits.

[Brett Bellmore]

They don't actually want all of Section 230 gone, just the little bit that's allowing platforms to politically censor without foregoing their protection as platforms.

It would probably suffice to remove the "or otherwise objectionable" catchall, and toss in some procedural requirements for moderation to avoid making a platform a "publisher".

The problem all along is that Section 230 got interpreted so as to put absolute editorial control, not just moderation of genuinely offensive content, under its umbrella.

[Stephen Lathrop]

No, Brett. Absolute editorial control for publishers comes from the 1A press freedom clause. You want to change that? Amend the Constitution.

The stupidest thing about Section 230 discourse has been the assumption made by nearly everyone that we get to design from scratch nearly everything about internet publishing. And then impose those hare-brained schemes by law.

[David Nieporent]

The stupidest thing about Section 230 discourse has been

everything Lathrop says about it.

[Allutz]

Currently Reading. I will update with each section.

The introduction provides a strong case that the US rule that the plaintiff must provide clear and convincing evidence that a statement is false is better than the UK rule that the writer must prove truth. But, it does not provide any compelling defense of the "actual malice" standard.

[Allutz]

Chapter 1 serves as both a review of possible originalist sources, and a rejection of originalism as the correct interpretation of 1st Amendment law. Its core premise is addressing, "Justice Thomas’ assertion in Berisha that the 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."

This chapter will fail to convince anyone who is not already convinced. It seems a classic case of "originalism by someone who doesn't like originalism" presentation. Also, despite ostensibly about the actual malice standard, it seems almost entirely unfocused on this point. This is either because the author couldn't find what he wanted, and instead decided to snow the reader with 70 pages of "evidence" to appear convincing, or because this was another article shoehorned into this publication.

Overall, this chapter is an inadvertent rejection of the actual malice standard, generally in favor of a different standard more along the lines of negligence in the case of public figures.

[Allutz]

Chapter 2 serves as a discussion of whether media has changed substantially since NYT v. Sullivan was decided. It also discusses the evolution of the law.

I would say this article starts of incredibly strong, convincingly rebutting Justice Gorsuch's narrative that media has degraded as a result of Sullivan. However, the article like CH1 drunkenly stumbles into its discussion of "actual malice" providing weak or no evidence with each assertion. Bizarrely, it even attempts to invoke parody and hate speech in its defense of lies, none of which, is necessary. This article simply should have ended early and rested solely on its compelling narrative that media isn't fundamentally different now, and not attempted to crudely graft that onto a hamfisted defense of "actual malice."

[Allutz]

Chapter 3 is a discussion of the modern litigation of libel. More or less, it is a refutation of one Professor Logan.

A very serious handling of data and statistics this chapter is. And it tells one very specific tale: Media companies know when they are going to lose nowadays, and so they settle. As the paper says, "Settlements are the new verdict." This appears to be publicly true as shown in the Sandman cases.

A very informative article that deserves praise for the sheer amount of data they accumulated and presented in a readable format.

[Allutz]

Chapter 4 appears to be similar to chapter III, except its goal is more narrative driven than data driven. This makes it orders of magnitude weaker.

Indeed, in its flagship section, it details how dozens of media publications were allowed to erroneously describe someone as a felon because of the malice standard. The second case study is a case that was oddly treated because the contested statements were both true (as far as we know) and not even negligently published, so actual malice should not have even come into play.

Overall, a sad display. No where does this article present a case where a public figure was defamed, the defamation was negligent, but didn't meet the "actual malice" standard, and that this was somehow good for the world. Moreover, it often treats a minor procedural victory, such as surviving a motion to dismiss, as a huge victory for the plaintiff, even when the case in question clearly involved a false statement.

[Allutz]

Chapter 5 compares and contrasts US vs. UK libel law and discusses libel tourism. Overall a good explainer of international libel law for the uninitiated and why US speech law is infinitely better for those TELLING THE TRUTH (or at least plausibly trying to). It also makes a strong defense of the SPEECH Act (although I am unaware it was under much, if any, criticism in the US).

One major failing of this paper, in my opinion, is that it ignores a much worse problem in international free speech regimes which is their "hate speech" codes, which are much more damaging to free speech than their libel laws, and are currently en vogue.

Overall chapters 3 & 5 are far superior to the other installments in actually educating the reader. The white paper, as a whole, serves to illuminate the weakness of the organization's position, particularly the opening salvo of CH1 which seemingly intentionally substitutes length for clarity.

[Voize of Reazon]

I am unaware it was under much, if any, criticism in the US

Perhaps not much, but certainly some:

Although enacted in 2010, the SPEECH Act did not make its appearance in case law until September 2013 when the Fifth Circuit Court of Appeals decided Trout Point Lodge, Ltd. v. Handshoe. Considering the frequency of libel tourism, one might have assumed that the first case to apply the SPEECH Act would have been a testament to the benefits of, and the need for, the Act. However, Trout Point Lodge was not an exemplar of libel tourism or illegitimate forum shopping. The forum selected in
Trout Point Lodge was not chosen to “chill” free speech. Rather, the forum was selected because it was both plaintiffs’ domicile and the jurisdiction where the defamatory statements were aimed. In addition, and most importantly, the forum was the location where the plaintiffs suffered harm to their reputations. Trout Point Lodge was monumental, but not for First Amendment protection or the deterrence of libel tourism. The case was monumental for exemplifying the broad reach of the Act and lack of guidance that Congress supplied the courts. In essence, Trout Point Lodge is a paradigm model of the flaws of the SPEECH Act.

[Sarcastr0]

Allutz - this was a fun read; I'm too busy to go through and see if my take aligns with yours, but I hope you had a good time going through it.

[ReaderY]

Sometimes the comparators people use tell you all you need to know. If the authors of this white paper intend to defend Sullivan by comparing it to English libel law, that’s a bit like the sorts of motels whose signs ptoudly proclaim they have indoor plumbing as a prominent feature. If the best you can say about it is that it’s better than sleeping in a tent and defecating in an outhouse, you know without having to inquire further that it’s not going to be better than any alternative motel one would actually seriously consider.

Advertising the advantages of Sullivan by saying it’s better than English common law (you know, where truth is no defense and all that) seems similar.

[Ridgeway]

You may want to brush up on your English common law regarding defenses to libel.

[Holden C]

It is mindboggling and beyond disgusting that so called "Professor" Eugene Volokh has DONE ABSOLUTELY NOTHING to help the USA address the increasingly common issue of cyberstalking and online harassment.

Rather, Eugene Volokh has tried his best to HARM victims of cyberstalking by trying to argue, incorrectly and foolishly, that online harassment and cyberstalking is "Free Speech". He fights for the "rights" of a bunch of criminals, sociopaths, and mentally ill malicious individuals who want to use the internet to ruin innocent victim lives.

Eugene Volokh, in his many "papers", completely ignores the impact of cyberbullying, cyber-harassment, doxing, and stalking to the VICTIMS of malicious mentally-ill cyber-stalkers and sociopaths. Instead, he works hard to protect the rights of these mentally ill criminals and leave victims with no legal recourse to regain their lives and stop this atrocious behaviour. Eugene basically supports the criminals.

Who in their right mind thinks "Free Speech" should be abused by plainly malicious individuals who are often mentally ill and are purposely using the internet to harm the victims by revealing private, personal information (doxing) or slandering them online, or posting their personal private pictures?

Rather than help the courts in the USA understand that cyber-harassment is NOT protected speech, Eugene Volokh has taken money ("bribes") from Google, Big Tech to peddle the false notion that harassment websites dedicated to tormenting a victim are "Free Speech" and "one-to-many speech." Eugene has disclosed that several of his "First Amendment" papers were funded by Google. Not surprisingly, all of his papers have "concluded" (not surprisingly) that Google should be able to do WHATEVER THE FUCK it wants while having no responsibility for removing harmful content and hosting cyberstalking webpages. Geez, I wonder if Eugene thinks the world is stupid and cannot see the fact that Google has FUNDED your papers. Eugene's conclusions are highly likely to be result of bribes by Big Tech to try to sway the legal landscape in their favour at the expense of innocent American victims.

Eugene is a dishonest lawyer and speaker taking bribes from Big Tech that favour lack of regulation and allowing crimes to take place online.

Plainly, Eugene Volokh's First Amendment absolutism is dangerous for America because it allows cyberstalking, cyber-harassment, doxing, and online abuse to flourish, totally ignoring the social harm of this type of criminal behaviour. Eugene Volokh seems blind to the reality that Free Speech especially on the internet needs to be balanced against other "rights", such as a victim's right to be free from harassment, right to be left alone, right of privacy.

Sadly, Eugene Volokh completely (and purposefully) ignores the impact of these crimes to the hapless victims. He doesn't understand the nature of the internet yet poses as if he's some "First Amendment" expert.

Eugene also tries to make it as difficult as possible for cyber-harassment victims to file a civil suit against their perpetrators using a "pseudonym", to protect their privacy from even further harm. Rather than sympathizing with the unfortunate and undeserved situation of the victims and finding ways to help these people stop their attackers, Eugene dishonestly tries to argue that for the victim to file pseudonymously would be somehow "unfair" to the malicious defendant, a psychopath who DESERVES to be held accountable for his criminal and harassing behaviour.

Eugene Volokh reminds me of a wolf in sheep's clothing. He has an agenda - to de-regulate Big Tech so they can maximize profits at the expense of making Americans totally unprotected from cyber-harassment, doxing, and cyber-stalking by mentally ill individuals online. He probably gets a cut of this profit, at the expense of American victims of cyber-stalking.

Try and refute me, Eugene Volokh. Everything I said was fact.

[Bored Lawyer]

I see the computers were turned on again at the asylum.