The Volokh Conspiracy
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Judge Charles Wilson (11th Cir.) Defends New York Times v. Sullivan
From Judge Wilson's concurrence in Friday's Dershowitz v. CNN, Inc. (and see also Judge Barbara Lagoa's concurrence taking the opposite view):
"Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function." I believe that Sullivan reflects "the accumulated wisdom of judges who have previously tried to solve the same problem."
To be sure, our understanding of the First Amendment should be guided by its original meaning and heed common law traditions. But "ambiguous historical evidence" does not justify casting aside a unanimous Supreme Court decision and nearly sixty years of settled precedent. The "real-world consequences" and reliance interests at stake counsel us to pump the brakes before calling to overrule Sullivan….
Adherence to precedent is "a foundation stone of the rule of law." Stare decisis is the "means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion," and "permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals." …
"The Framers of our Constitution understood that the doctrine of stare decisis is part of the 'judicial Power' and rooted in Article III of the Constitution." Alexander Hamilton wrote that to "avoid an arbitrary discretion in the courts, it is indispensable" that federal judges "should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them." Blackstone wrote that "it is an established rule to abide by former precedents," to "keep the scale of justice even and steady, and not liable to waver with every new judge's opinion."
Of course, Judges and even Justices, are fallible. And it is especially important for the Court to correct errors in constitutional rulings, which "Congress cannot override … by ordinary legislation." But even in constitutional cases, the Supreme Court "has always held that 'any departure'" from precedent "demands special justification." This is especially true when the constitutional protections recognized by the precedent have "become part of our national culture." …
In his concurring opinion in Ramos v. Louisiana, Justice Kavanaugh synthesized the Supreme Court's "varied and somewhat elastic stare decisis factors" into "three broad considerations" to determine what qualifies as a "special justification" or "strong grounds" to overrule a prior constitutional decision
First, the precedent must be "egregiously wrong as a matter of law." "A garden-variety error or disagreement does not suffice to overrule." The Court examines factors such as "the quality of the precedent's reasoning, consistency and coherence with other decisions, changed law, changed facts, and workability." Second, the Court considers whether "the prior decision caused significant negative jurisprudential or real-world consequences." This includes both "jurisprudential consequences," such as "workability, … consistency and coherence with other decisions," and "the precedent's real-world effects on the citizenry." Finally, the Court examines whether "overruling the prior decision unduly upset reliance interests." "This consideration focuses on the legitimate expectations of those who have reasonably relied on the precedent. In conducting that inquiry, the Court may examine a variety of reliance interests and the age of the precedent, among other factors." …
Judge Wilson concluded that Sullivan wasn't egregiously wrong:
Sullivan's "actual malice" requirement "has its counterpart in rules previously adopted by a number of state courts and extensively reviewed by scholars for generations." The rule is premised both on "common-law tradition" and "the unique character of the interest" it protects.
Sullivan was "widely perceived as essentially protective of press freedoms," and "has been repeatedly affirmed as the appropriate First Amendment standard applicable in libel actions brought by public officials and public figures." It "honored both the Court's previous recognition that 'libel' is not protected by the First Amendment and its concomitant obligation to determine the definitional contours of that category of unprotected speech." Lee Levine & Stephen Wermiel, What Would Justice Brennan Say to Justice Thomas?, 34 Commn's Law. 1, 2 (2019).
For decades after Sullivan, even as defamation plaintiffs petitioned the Court to limit or overrule the case, the Court refused. Matthew L. Schafer, In Defense: New York Times v. Sullivan, 82 La. L. Rev. 81, 84 & n.18 (2021). Although it faced some academic skepticism since the 1980s {e.g., Richard A. Epstein, Was New York Times v. Sullivan Wrong?, 53 U. Chi. L. Rev. 782 (1986)}, a "growing movement to engineer the overruling of Sullivan" has emerged in recent years, fueled by the idea that it represents an exercise of "judicial policymaking." See Samantha Barbas, New York Times v. Sullivan: Perspectives from History, 30 Geo Mason L. Rev. F. 1, 2 (2023)….
And experience tells us that "disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history." See also, e.g., Schafer ("The freedom of the press that Thomas and Gorsuch espouse [in recent opinions criticizing Sullivan] is not an originalist one; it is a monarchist's one, predating the Founding and purporting to import into the First Amendment today common law rules long ago rejected by the Founders and early courts. This approach, however, violates Thomas's own instruction that what matters for the purposes of an originalist inquiry is the 'founding era understanding.' Indeed, Thomas's view ignores that there was a Revolution, and that no small complaint of that Revolution was England's abuses of prosecutions of early American printers. It also ignores everything that happened between 1789 and 1868 when the Fourteenth Amendment made the First Amendment applicable as against the States. Thomas's failure to deal with this history draws into question his supposed commitment to it."); Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. J.L. & Liberty 44, 54–55 (2019) (recognizing the Seditious Conspiracy Act provides "some originalist basis to impose a higher bar for libel suits filed by government officials").
History's flaws are especially apparent when confronting the law of libel in the United States, which "is not now, nor ever was, tidy." Schafer. "The founding generation and the Congresses of the Reconstruction were not of one mind when it came to the common law of libel or the effect, if any, the First and Fourteenth Amendments had on it." "We know very little of the precise intentions of the framers and ratifiers of the speech and press clauses of the first amendment" when it comes to defamation actions. Ollman v. Evans (D.C. Cir. 1984) (Bork, J., concurring). "But we do know that they gave into our keeping the value of preserving free expression and, in particular, the preservation of political expression, which is commonly conceded to be the value at the core of those clauses."
The Founders rejected early attempts to "transplant the English rule of libels on government to American soil." And "the restricted rules of the English law in respect of the freedom of the press in force when the Constitution was adopted were never accepted by the American colonists." Rather, "[o]ne of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press." Henry Schofield, Freedom of the Press in the United States, 9 Proc. Am. Soc. Soc'y 67, 76 (1914).
Conflicting history aside, "[i]t is ironic that an approach so utterly dependent on tradition is so indifferent to our precedents." The Supreme Court's First Amendment jurisprudence "is one of continual development, as the Constitution's general command that 'Congress shall make no law … abridging the freedom of speech, or of the press,' has been applied to new circumstances requiring different adaptations of prior principles and precedents." Sullivan is part of a "judicial tradition of a continuing evolution of doctrine to serve the central purpose of the first amendment."
The consistent, guiding principle since the Founding and throughout our country's history is that the First Amendment "rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society." … Playing a key role in the marketplace, the "press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve." "Suppression of the right of the press to praise or criticize governmental agents … muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free."
What was true in 1791, 1868, and 1964 remains true today: a libel law regime that allows public figures and officials to silence "speech that matters," absent complete accuracy, "dampens the vigor and limits the variety of public debate" and is "inconsistent with the First and Fourteenth Amendments."
Judge Wilson went on to argue that Sullivan has not "caused significant negative jurisprudential or real-world consequences":
Looking first to jurisprudential consequences, such as consistency and workability, Sullivan's actual-malice rule allows courts to "expeditiously weed out unmeritorious defamation suits" while "preserv[ing] First Amendment freedoms and giv[ing] reporters, commentators, bloggers, and tweeters (among others) the breathing room they need to pursue the truth."
A return to the common-law defense that "the alleged libel was true in all its factual particulars," rather than malice, would be nearly unworkable. The "difficulties of separating fact from fiction convinced the Court in New York Times, Butts, Gertz, and similar cases to limit liability to instances where some degree of culpability is present in order to eliminate the risk of undue self-censorship and the suppression of truthful material." And hinging liability for public criticism on a judge or jury's determination of what is true deviates from the "marketplace of ideas" the First Amendment protects—where truth depends on an idea's competition with other ideas, not a government censor. Jane E. Kirtley, Uncommon Law: The Past, Present and Future of Libel Law in a Time of "Fake News" and "Enemies of the American People", 2020 U. Chi. L.F. 117, 123 (2020).
As far as "real-world effects on the citizenry," Sullivan allowed the public and the press to criticize public officials and public figures, and contribute to vital national dialogue without fear of unwarranted retaliation. Over the last sixty years, Sullivan's "actual malice" requirement has consistently "ensure[d] that debate on public issues remains uninhibited, robust, and wide-open," while balancing the individual's interest in his reputation….
[As to] the concern about injuries to an individual's reputation …[,] "The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical" of public officials or public figures. And plaintiffs who cannot show "actual malice" may suffer some unwarranted reputational harm which cannot "easily be repaired by counterspeech." … [P]ublic figures "have a more realistic opportunity to counteract false statements than private individuals normally enjoy," and perhaps even more so with new technology creating new "channels of effective communication."
The "real world" consequences of stripping away Sullivan's protections in our current media climate would do the opposite of "preserve an uninhibited marketplace of ideas," and "muzzle[ ] one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free."
And Judge Wilson also concluded that Sullivan has produced important "reliance interests":
Sullivan has "become part of the fabric of American law" and been "woven into a long line of federal and state cases." Roy S. Gutterman, Actually … A Renewed Stand for The First Amendment Actual Malice Defense, 68 Syracuse L. Rev. 579, 580, 602 (2018). Its "recognition that libel law could violate the First Amendment was the critical step that made possible all the Court's subsequent defamation decisions and the many restrictions later imposed on libel law by state judges and legislatures." David A. Anderson, The Promises of New York Times v. Sullivan, 20 Roger Williams U. L. Rev. 1, 23 (2015).
The "evenhanded, predictable, and consistent development of legal principles" and "reliance on judicial decisions" is "particularly important in the area of free speech for precisely the same reason that the actual malice standard is itself necessary." First Amendment freedoms "are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." "Uncertainty as to the scope of the constitutional protection can only dissuade protected speech—the more elusive the standard, the less protection it affords."
Overruling Sullivan would be especially disruptive because the case defines "the central meaning of the First Amendment" and influenced "virtually all of the Supreme Court's subsequent First Amendment jurisprudence." Wermiel. Casting the decision aside in favor of varied, plaintiff-friendly state libel laws would "create an inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable." …
Out of respect for unanimous Supreme Court precedent, and the press freedoms that played a critical role in securing the civil rights many in this country hold dear, judges should reconsider their calls for the Supreme Court to overrule Sullivan. "For it is hard to overstate the value, in a country like ours, of stability in the law."
