A Resounding Reaffirmation of Times v. Sullivan

From a Wall Street Journal commentary by Lee Levine and Matthew L. Schafer headlined “A Resounding Reaffirmation of Times v. Sullivan”:

Donald Trump said in 2016 that he wanted to “open up our libel laws” to make it easier to sue news organizations for defamation. Two Supreme Court justices later raised questions about the landmark ruling New York Times Co. v. Sullivan (1964). But on Tuesday the high court laid these questions to rest—in a case that on its face had nothing to do with defamation law.

Counterman v. Colorado flew under the radar for most Americans, even journalists. The case posed the question of what state of mind the government must prove to secure a criminal conviction for speech that constitutes a “true threat” of unlawful violence. In deciding it, however, six of the nine justices reaffirmed the central holding of Sullivan.

The court held unanimously in Sullivan that defendants in state defamation cases are protected by the First Amendment. Libel cases brought by public officials, Justice William Brennan wrote, must be considered “against the background of our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

To provide the “breathing space” First Amendment freedoms need, the court formulated the “actual malice” standard, which requires that plaintiffs who are public officials (extended in later cases to include all public figures) demonstrate that a defendant knew the libelous statement was false or probably false—in other words, that it published a “calculated falsehood.” That rule provided serious protection to speakers who might be targeted with baseless libel lawsuits, or who published erroneous information in good faith.

The court spent the next several decades further limiting the ability of well-heeled litigants to shut down criticism using libel law. Throughout, Sullivan has stood as the court’s foundational declaration of the “central meaning” of the Constitution’s protection of “freedom of speech or of the press”: that the First Amendment provides “a core of protection of speech without which democracy cannot function, without which, in Madison’s phrase, ‘the censorial power’ would be in the Government over the people and not ‘in the people over the Government,’ ” as legal scholar Henry Kalven Jr. put it in a 1964 law-review article.

But Justice Clarence Thomas issued a lone dissent against Sullivan in 2019. He described it and subsequent rulings as “policy-driven decisions masquerading as constitutional law” and called on the court to overturn them. Justice Neil Gorsuch didn’t go quite that far in 2021, but he questioned whether Sullivan, even if correctly decided, had rendered it impossible for public figures to vindicate their falsely damaged reputations in court. He also noted that Justice Elena Kagan had questioned aspects of Sullivan when she was a law professor. Earlier this year, Florida lawmakers introduced a pair of bills to eviscerate the protections of Sullivan—a gambit designed to create an opportunity for the court to reconsider the precedent.

The Media Law Resource Center issued a white paper defending Sullivan and detailing the risks to democracy if it were overturned and defending its historical pedigree. One of us (Mr. Schafer) argued in an academic paper that “at the Founding and shortly after, courts were cultivating an American understanding of the freedom of the press and libel,” which informed Sullivan and its progeny. As Chief Justice William Rehnquist once said, Sullivan “altered the rules of the game of American politics, and speech, as a matter of fact, making American public officials more accountable, the American media more watchful, and the American people better informed.”

In Counterman, the court invoked Sullivan generally, and its actual-malice rule specifically, to vacate the criminal conviction. Writing for a five-justice majority, Justice Kagan embraced Sullivan’s central premise that “the fear of ‘self-censorship’” arising from the “uncertainties and expense of litigation” demands that the First Amendment “ ‘protect some falsehood in order to protect speech that matters.’ ” She noted that the actual-malice rule is calibrated to provide the “breathing space” necessary to avoid a “chilling effect” on speech, while at the same time affording the victims of deliberate character assassination a remedy.

In a concurring opinion, Justice Sonia Sotomayor forcefully endorsed Sullivan as well. She argued that “allowing liability for awareness of a small chance that a story may be false would undermine the very shield Sullivan erects.” Justice Amy Coney Barrett dissented, but she didn’t question Sullivan. Neither did Justice Gorsuch, who joined other parts of Justice Sotomayor’s concurrence.

Only Justice Thomas rejected what he called “the majority’s surprising and misplaced reliance” on Sullivan. He wrote that he was “far from alone” in his belief that the 1964 case was wrongly decided. But in Counterman he was alone, with six of his colleagues clearly on the other side.

Lee Levine is a retired media lawyer. Matthew L. Schafer is a lawyer and an adjunct professor of law at Fordham University. They were managing editor and a co-author, respectively, of the Media Law Resource Center’s white paper.

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