Judge Barbara Lagoa (11th Cir.) Criticizes New York Times v. Sullivan

From Judge Lagoa's concurrence in Friday's Dershowitz v. CNN, Inc. (and see also Judge Charles Wilson's concurrence taking the opposite view):

In New York Times, Inc. v. Sullivan, the Court usurped control over [the] field of speech-related torts and invented "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Three years later, this same rule was extended to "public figures" in addition to public officials…. [In 1974,] the Court held for the first time that falsity and harm were not enough, and even private plaintiffs must show some sort of "fault," negligence at the least, to recover for defamation. And, even with that proof of culpable fault, damages were not presumed but had to be proven … [and] no plaintiff could recover punitive damages for defamation without showing Sullivan-style malice. With this series of cases … one generation of the Supreme Court succeeded in imposing federal constitutional limitations (seemingly untethered to the Constitution's original meaning) on all defamation claims brought by all manner of plaintiffs.

Justice White recognized the ill-fated trajectory of this line of cases after originally joining the majority in Sullivan…. Justice White elaborated on the central problem in Sullivan: A people who govern themselves, as the Founders intended us to do, are entitled to adequate information about their government and their representatives, and that essential flow of information warrants First Amendment protection; but protecting lies—by insulating those who spread them behind an iron barrier, to be breached only by a showing of actual malice—does nothing to support an informed populus and, instead, has the contrary effect of leaving lies uncorrected. … "Also, by leaving the lie uncorrected, the New York Times rule plainly leaves the public official without a remedy for the damage to his reputation. Yet the Court has observed that the individual's right to the protection of his own good name is a basic consideration of our constitutional system, reflecting 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."

As the Court concluded in Gertz v. Robert Welch, Inc., "there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in 'uninhibited, robust, and wide-open' debate on public issues." But that is precisely Sullivan's effect. Under the actual-malice standard, the public's "only chance of being accurately informed is measured by the public [figure's] ability himself to counter the lie, unaided by the courts. That is a decidedly weak reed to depend on for the vindication of First Amendment interests." … "While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not 'hot' news, and rarely receive the prominence of the original story."

Quite the journey we have taken from Sullivan's attempt to protect the public's interest in being fully informed on matters of public import. But that, in fact, precisely identifies the error at the heart of Sullivan: In "federaliz[ing] major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States," the Court "made little effort to ground [its] holdings in the original meaning of the Constitution." …

What, then, does the original meaning of the First Amendment tell us about the propriety of an actual-malice standard? To understand the original meaning of the First Amendment is to understand law as those who ratified it did. Our starting place is, therefore, the natural law and our accompanying natural rights as they were understood pre-ratification. Natural rights are those that we possess innately as human beings; their existence does not depend on government endowment. See generally Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 268–80 (2017). As to expression, our Founders recognized a variety of natural rights, including (as relevant here) speaking, writing, and publishing. [Historical evidence omitted. -EV] The "liberty of the press," meaning the freedom to print information, fell within the scope of natural rights that pre-existed our Bill of Rights. Closely related to freedom of the press—distinct, according to some; overlapping according to others—was the freedom to publish, most closely encapsulating that which we now think of as "journalism." There is little doubt, then, that our Founding generation recognized the freedoms to think, speak, write, print, and share ideas as natural rights endowed in the people by their Creator, not their government.

With the natural right established, we turn to the limits the government was authorized to impose on speech. Those limits turn on two central inquiries: the scope of the natural right and the extent to which we, as a people, agreed to some restraint of the natural right in exchange for the benefits that nationhood offered. Enter here the concept of natural law, which, at the least, provides the understanding that, regardless of any government structure, one individual may not interfere with another's natural rights. See Campbell at 271; Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L.J. 907, 922–30 (1993) ("[B]eing equally free, individuals did not have a right to infringe the equal rights of others, and, correctly understood, even self-preservation typically required individuals to cooperate—to avoid doing unto others what they would not have others do unto them." (citing John Locke, Two Treatises of Government). As James Wilson explained it in his 1790 Lectures on Law, as to avoiding injury and injustice under the natural law, each person may act "for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labours. This right is natural liberty." …

Jud Campbell has … explain[ed] that "whether inherently limited by natural law or qualified by an imagined social contract, retained natural rights were circumscribed by political authority to pursue the general welfare. Decisions about the public good, however, were left to the people and their representatives—not to judges—thus making natural rights more of a constitutional lodestar than a source of judicially enforceable law." Thus, the Founders simultaneously understood that freedom of speech was both a natural right not dependent on government creation, and also subject to certain limitations for the public good—so long as those limitations did not abridge the natural right as it existed in a system of natural law. And while the freedoms of speech and of the press were both viewed as natural rights, they were viewed as properly subject to different regulation, with recognition that written statements were "more extended" and "more strongly fixed," thus "posing a greater threat to public order."

We turn next to the contours of the natural right and the natural law, and the types of restriction that were viewed as consistent with those boundaries. The Founders widely believed that "opinions," as James Madison observed to his colleagues, "are not the objects of legislation." In other words, opinion, understood as non-volitional thought, was not subject to government regulation at the time of the Founding.

But the freedom of opinion raises another question: What forms an opinion? History confirms that the freedom to express opinions was, indeed, limited to honest statements and did not encompass dishonesty or deceit. For instance, even in the debates over the Sedition Act, a persistent and widespread consensus emerged that "well-intentioned statements of opinion, including criticisms of government, were constitutionally shielded."

Consistent with the notion that the natural right to free speech coexisted with a limitation forbidding injurious lies, "10 of the 14 States that had ratified the Constitution by 1792 had themselves provided constitutional guarantees for free expression, and 13 of the 14 nevertheless provided for the prosecution of libels." …

What do we take away from the original sources? As the Supreme Court observed in Roth, "[t]he protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people," but such assurance focused on the exchange of ideas in service of advancing truth and imposed no additional burdens to recovery based on the harmed party's station in society. In a 1774 letter to the inhabitants of Quebec, the Continental Congress expressed the following objective:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

This statement from the Continental Congress … supports a conclusion that "[a]ll ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests." Among those "excludable" expressions, we can only conclude, are those that patently do not serve "the advancement of truth."

Notably absent from the historical discussion is anything resembling a heightened requirement making it more difficult to prosecute libel or slander directed at an official (much less a "public figure") rather than a private citizen. On the contrary, the accepted consensus was that public officials could sue for libel "upon the same footing with a private individual" because "[t]he character of every man should be deemed equally sacred, and of consequence entitled to equal remedy." Tunis Wortman, A Treatise, Concerning Political Enquiry, and the Liberty of the Press (1800); accord St. George Tucker, View of the Constitution of the United States with Selected Writings (1803) ("[T]he judicial courts of the respective states are open to all persons alike, for the redress of injuries of this nature; there, no distinction is made between one individual and another; the farmer, and the man in authority, stand upon the same ground: both are equally entitled to redress for any false aspersion on their respective characters, nor is there any thing in our laws or constitution which abridges this right.").

From all this, I conclude, as Justice White did in Gertz, that "[s]cant, if any, evidence exists that the First Amendment was intended to abolish the common law of libel, at least to the extent of depriving ordinary citizens of meaningful redress against their defamers." What the historical documents suggest is that, in its original context, the First Amendment was intended to protect free dissemination of ideas—all manner of ideas, particularly those out of fashion or disfavored—but not the dissemination of lies. See, e.g., 10 Benjamin Franklin Writings 38 (1907) ("If by the Liberty of the Press were understood merely the Liberty of discussing the Propriety of Public Measures and political opinions, let us have as much of it as you please: But if it means the Liberty of affronting, calumniating, and defaming one another, I, for my part, own myself willing to part with my Share of it when our Legislators shall please so to alter the Law, and shall cheerfully consent to exchange my Liberty of Abusing others for the Privilege of not being abus'd myself."); Frank Luther Mott, Jefferson and the Press 14 (1943) (explaining that Thomas Jefferson endorsed the language of the First Amendment as ratified only after suggesting that "[t]he people shall not be deprived of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, liberty or reputation of others").

And we held onto that principle for the first two centuries of our national existence. Just a decade before Sullivan, the Supreme Court reiterated as much, explaining that "[l]ibelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.'" But, as we know, this interpretation of the First Amendment, true to its original meaning, fell apart shortly thereafter….

As expressed by Justice White, Sullivan and its progeny represent "an ill-considered exercise of the power entrusted to [the] Court." The lasting effect of Sullivan, as anyone who ever turns on the news or opens a social media app knows well, is that media organizations can "cast false aspersions on public figures with near impunity," causing untold harm to public figures and the general public alike. Jettisoning the original meaning of the First Amendment—and centuries of common law faithful to that meaning—has left us in an untenable place, where by virtue of having achieved some bit of notoriety in the public sphere, defamation victims are left with scant chance at recourse for clear harms.

But until the Supreme Court reconsiders Sullivan, we are bound by it, and I therefore must concur.

Comments

[Frank Drackman]

Even without "Sullivan" couldn't one just avoid paying damages by qualifying "I feel horrible for Ted Kennedy, leaving a young woman to asphyxiate (not drowned, there's a difference) must weigh heavily on his conscience!"

[Michael P]

You meant "drown", not "drowned".

But where is the falsity in observing that Ted Kennedy left a young woman to asphyxiate in his car?

[MatthewSlyfield]

Hmm, is there specific evidence that the young woman in question was still alive when Ted Kennedy's car went into the water?

[Bob from Ohio]

Official cause of death [no autopsy] at the scene was drowning. But see this:

"Farrar, who recovered Kopechne's body from the submerged car,[54] believed that she died from suffocation, rather than from drowning or from the impact of the overturned vehicle, based upon the posture in which he found the body in the well of the back seat of the car, where an air pocket would have formed. Rigor mortis was apparent, her hands were clasping the back seat and her face was turned upward." wikipedia

[wvattorney13]

That's not accurate. You can't game the system that way.

"My neighbor has sexual relations with goats"---defamatory

"I feel really bad for the goats that my neighbor has sexual relations with"---still defamatory. Although I couched it as a (fake) sympathy with the goats, I made a statement of fact in there.

[Frank Drackman]

Upon further review, since Mary Jo Kopeckney drowned some 56 years ago, "drowned" is correct. You lose your challenge for the remainder of the thread.
Wait a minute.....
You're right dammit, your call is sustained, you retain the right to challenge.

Frink

[Glaucomatose]

Looks like Baboa took the message to heart from getting passed over in favor of ACB: if you want to get a SCOTUS seat from Donald Trump, you have to audition a lot more openly.

[Glaucomatose]

Also, it says a lot about the conservative legal movement that ambitious federal judges are writing opinions like this in the first place. Remember when we used to hear about the danger of "activist judges"? Imagine if allegedly mainstream liberal circuit judges were issuing concurring opinions with hot takes like "In DC v. Heller, the Supreme Court usurped control over the field of public safety and invented an ahistorical individual right to bear arms, using 'little effort to ground [its] holdings in the original meaning of the Constitution.'" How many think pieces would Josh Blackman have written about the arrogance of the lower courts?

[David Nieporent]

Agreed. In one of the open threads the other day, I characterized Lagoa's opinion as a cert petition — which it is — but it is also a job application.

To be fair — unlike Aileen Cannon — Lagoa faithfully ruled based on binding precedent. But the rest of the concurrence was entirely gratuitous. It's one thing for a lower court judge to call out such a precedent as unworkable based on the judge's personal experience in trying to apply it; that's actually useful information. It's another just to say that in her judgment the rule should be different.

[Michael Masinter]

She apparently has studied Judge Ho's opinions incessantly criticizing SCOTUS rulings.

[not guilty]

Has there ever been a more aptly named jurist than James Ho?

(I recall having appeared before a municipal court judge whose unfortunate name was Tom Lawless.)

[JasonT20]

But the freedom of opinion raises another question: What forms an opinion? History confirms that the freedom to express opinions was, indeed, limited to honest statements and did not encompass dishonesty or deceit. For instance, even in the debates over the Sedition Act, a persistent and widespread consensus emerged that "well-intentioned statements of opinion, including criticisms of government, were constitutionally shielded."

By this view, then it becomes the role of a judge and jury in a defamation case to decide whether someone's opinions are "well-intentioned", not just whether they had "malice" when making a false claim of fact about a public figure. Is the "dishonesty and deceit" this judge talks about going to include the use of logical fallacies now?

This is entirely bullshit. An opinion, by definition, is not a claim about fact and cannot be false. Thus, it can't be defamation, regardless of the intention of the speaker.

[cannpro]

I actually think it's a shame the court didn't address Dershowitz's frivolous lawsuit on the merits. CNN's statements were obviously opinions that turned on their interpretation of what Dershowitz said. Dershowitz isn't entitled to have the news outlets agree with his position or adopt his logic.

[ConservativeProfessor]

You literally engaged in a performative self-refutation by claiming that the judge's opinion is false.

[Bob from Ohio]

As I've said before, Sullivan occurred because SCOTUS was not going to let southern racists sue northern media in southern courts during the civil rights era. So doctrine was created to get that result.

[wvattorney13]

Agreed. It was a results oriented overkill. It did what it needed to do but has some unintended baggage with it.

[David Nieporent]

That's true about the context in which Sullivan itself was handed down, but it's not at all a complete description. The attempt to block abuses by Jim Crow do not explain the many subsequent decisions expanding Sullivan. (e.g., expanding it from public officials to public figures, blocking defamation for good faith batshittery — my term, not the Court's — etc.)

[Bob from Ohio]

Precedents generally get expanded.

[ah....Clem]

...the First Amendment was intended to protect free dissemination of ideas—all manner of ideas, particularly those out of fashion or disfavored—but not the dissemination of lies.

And that's what Sullivan does - it does not protect lying it's just that the plaintiff must prove that the statement was a lie (i.e. actual malice) as opposed to merely false. Just like the plaintiff must prove any other relevant aspect of a lawsuit.

Seems like this judge doesn't understand Sullivan. Or as asserted above, is just publicly auditioning for a SCOTUS seat.

[Stupid Government Tricks]

Why does being a celebrity lessen your ability to punish lies?

[Randal]

If that's the problem, I would be happy to apply the Sullivan rule across the board.

But the answer is easy anyway. Commentary about public figures is of greater public interest -- and by the same token more likely to be the subject of suppression attempts -- than commentary about unknown people. (Forget Lagoa's quip about celebrities being more able to counter the narrative. It's true, but a strawman in this context.)

The threat to free speech that Sullivan addressed is real. I also think it's a riot that conservatives rail against Sullivan when it's the only thing keeping the MAGAsphere afloat. Fox News, Truth Social, NewsMax... they all owe their continued existence to Sullivan.

[Stupid Government Tricks]

Public figures also deserve more public scrutiny just for having more control over government coercion. Lies are lies. The problem could be solved a lot easier with loser pays everything spent to defend against the lie.

[ah....Clem]

BTW, every single person on earth believes things that are false. They don't know that those things are false, otherwise they wouldn't believe those things.

It's not lying when you believe your statement is true. We shouldn't "criminalize" false statements made in good faith, since nobody knows everything and all of us believe things that can be proven false.

[wvattorney13]

It depends on the definition of "good faith." Repeating rumors and innuendo is not, IMHO, "good faith." Repeating something of public interest that has some support is good faith.

[Bored Lawyer]

Your comment ignores the broad range between someone who sincerely believes that a fact is true, and someone who knows it's false. Like negligence, gross negligence and reckless disregard.

Take this example: newspaper rushes to print a very negative editorial about a public official, who is a candidate for high[er] office. But it does not bother to research its own reporting which would show that the story is false. Is that good faith, in your opinion?

Also, on this comment: "every single person on earth believes things that are false."

That's true. But I was taught that not everything you think should be said, and not everything you say should be printed. Is there some responsibility to verify what you believe about someone else before spewing it out to the general public?

[CJColucci]

Save us from judges who think they have Ideas.

[Michael Ejercito]

Three years later, this same rule was extended to "public figures" in addition to public officials
Herein lies the problem.

the First Amendment is at its zenith when it comes to criticism against public officials who make laws that restrain us, judge us for violating these laws, and impose consequences (even death sentences). The Sullivan in Sullivan did in fact have the power to arrest people for crimes, and the threat of a libel or slander lawsuit could chill criticism of him.

Public officials also choose to be public officials.

However, public figures do not necessarily exercise police powers over uys. In fact, the media can make someone a public figure, and then effectively have a defense against a libel or slander suit by someone that they made a public figure. See George Zimmerman for an example.

I agree with the court that decided Clark v. Pearson, 248 F.Supp 188 (D.D.C. 1965)

Counsel for the defendants in this case urge the Court, however, to apply the principle of the Sullivan case to all public figures or public persons, including those in private life, and to abrogate the limitation to public officials. In effect, they seek to transform two specific exceptions carved out by a process of erosion into an extensive demolition and destruction of the law by an act of avulsion. This Court perceives no reason in principle or in justice for radically undermining the law of libel, in this manner, nor does it find any precedents for doing so. The law of libel, as has been shown, is a vital and important aspect of the law of torts. It is one of the branches of law that safeguard individual civil rights. It should not be whittled away.

The basic philosophy underlying the doctrine of the Sullivan case is that the privilege of every citizen, no matter how well informed he may or may not be, to criticize his government freely, should be safeguarded, and that any obstacle or obstruction interfering with the exercise of this right should be removed as far as reasonably practicable. Such a right is regarded as indispensable in a popular form of government. It is deemed an essential element of the liberty of public debate. Manifestly this theory has no logical application to criticisms or attacks on private individuals. The fact that some persons are better known than some others should not lead to any far-reaching distinction in their civil rights. Consequently, there is no reasonable connection between a right to criticize one's Government and the right to disparage one's neighbors. To adopt the reasoning of defense counsel would not merely extend the rule of the Sullivan case unduly, but would introduce an entirely new and independent concept and inject an undesirable innovation into the law of defamation.

[David Nieporent]

Maybe. But some people blur the line. If you're referring to a random celebrity — say, Taylor Swift — maybe there's no reason to treat her any differently than any other private individual. But what about Elon Musk or — if you want balance — George Soros? As far as I know neither technically ever held any government job, but to say that for defamation purposes discussing them is no different than discussing the guy who owns the dry cleaners down the street seems a bit wrong.

[ReaderY]

The facts of Sulliven itself make clear that there is a legitimate basis for finding libel judgments subject to some sort of First Amendment based constitutional scrutiny. In that case, Police Commissioner Sulliven, sued the New York Ties for publicizing an ad by supporters of the Rev. Martin Luther King Jr. critizing the police’ treatment of protestors. The ad contained some minor errors, misstating things like the number of times Rev. King had been arrested and what songs were sung in the protest.

It seems clear that a regime in which people who criticize someone powerful can be made to pay huge damages if the publication contains even the slightest and least material false statement represents a First Amendment problem.

But that problem can be solved with far, far less than the Sulliven sledgehammer. A simple materiality requirement - the error has to affect the “gist” or “sting” of the criticism would probably have done the job perfectly well under the facts of Sulliven.

What I find particularly galling about Sulliven’s “actual malice” standard is that it makes libel law actively favor those who do not investigate. By holding people liable for libel only if they encounter contradictory facts, the law creates a safe harbor for those who take care not to learn any facts at all before speaking.

A regime in which people concerned about truth are subject to significantly more legal risk, that allows people who are completely unconcerned about truth to use their very lack of concern as a shield to protect them in a way not available to those who have moral scruples about lying, is a horrible travesty of justice and a blight on our nation. Sulliven actively encourages and protects liars and actively works against and actively undermines and disfavors people with ethics about honesty.

It’s a travesty, an utter embarassment to the legal system. The Court should frankly be ashamed of itself for foisting such a perverse, dysfunction-promoting regime on the public, a regime which actively discourages truth-telling and actively promotes and protects liars as long as they have so little concern for knowing what the truth is that they lie sufficiently openly and brazenly.

The Court has, and still has if it wishes to right this injustice that actively interferes with the ability of Americans to learn the truth about their world, many less perverse and socially dysfunctional ways of addressing legitimate First Amendment concerns. The Sulliven sledgehammer turns the First Amendment on its head, rewarding lies and punishing truth-seeking. The Court needs an approach that does not have this perverse wffect.

[ReaderY]

Judge Lagoa’s criticism goes further, saying that the Court should not have federalized libel law at all. I think the facts of Sulliven make clear that First Amendment scrutiny was appropriate. However, the Court should have used a scalpel, not a sledgehammer, to accomplish this.

[Bored Lawyer]

Generally agree with your take.

Apart from materiality, there is also a damages issue. How is a Southern sheriff damaged by, for example, a misstatement about what songs the protestors were singing? If they truly were mistreating protestors, then which songs seems to damage the plaintiff not at all.