The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The article is here; here is the Introduction:
Coordinated campaigns of falsehoods are poisoning public discourse. Amidst a torrent of social-media conspiracy theories and lies—on topics as central to the nation's wellbeing as elections and public health—scholars and jurists are turning their attention to the causes of this disinformation crisis and the potential solutions to it.
Justice Neil Gorsuch recently suggested that, in response to this challenge, the U.S. Supreme Court should take a case to reconsider New York Times v. Sullivan, the foundational First Amendment precedent in defamation law. A major premise of Justice Gorsuch's critique of Sullivan is that the changing social-media dynamics—and the disinformation crisis that has accompanied them—threaten the nation's democracy. He argues this changed terrain may call for less stringent constitutional protections in defamation actions. This chapter explores and challenges that critique. Justice Gorsuch is correct that rampant social-media disinformation poses a grave risk to our political and social stability, but there is a troubling disconnect between the anti-disinformation and pro-democracy concerns he articulates and the doctrinal revisions he considers. When the interrelationships between disinformation, defamation, and democracy are interrogated—and especially, when they are situated within the constitutional value of the press function that served as the backdrop for Sullivan—it becomes clear that unwinding the Sullivan doctrine would not be a productive tool for remedying the problem of rampant social-media lies. Indeed, doing so carries the very real risk of exacerbating the problem. Abandoning the Sullivan line of protections would impair those valuable press speakers who are actively prioritizing trustworthy newsgathering and corrective reporting, and it would do so with no meaningful payoff in solving the online-disinformation problem that seems to be driving this proposed reconsideration.
This inquiry matters. Sullivan is not exclusively a press-freedom case, but at this critical juncture, it is a centerpiece of protection for some core press functions (performed by both legacy media and others) that are crucial to healthy public discourse. A Sullivan scaleback harms those entities that are incentivized to get information right, to invest in careful newsgathering, and to engage in important journalistic investigations exposing those who peddle disinformation. At a moment of declining newsroom and press-litigation resources and of increased willingness of public people to weaponize defamation as a tool for silencing and deterring critics, the risks of self-censorship voiced by the unanimous Sullivan Court are especially grave.
Representative democracy needs the press function to survive and flourish. There is every reason to believe that a rollback of Sullivan would compound rather than alleviate the disinformation problem and would further imperil the fragile democracy.