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The Most Important Supreme Court Precedent for Freedom of the Press Is in Jeopardy

Slate 1/22/2023 Matthew L. Schafer and Jeff Kosseff
Photo illustration by Slate. Photo by hatman12/iStock/Getty Images Plus. © Provided by Slate Photo illustration by Slate. Photo by hatman12/iStock/Getty Images Plus.

Nearly 60 years ago, the U.S. Supreme Court decided a case that set the stage for a dramatic expansion of First Amendment rights across the country. While New York Times v. Sullivan dealt with arcane issues about burdens placed on public officials suing for defamation, it also declared our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

It’s hard to overstate the importance of the case and its effect on the law and on our politics. As the late Chief Justice William Rehnquist, himself a critic of the case, 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.”

Like so many other cases of its time, Sullivan is in more jeopardy today than ever before. Since 2019, Justices Clarence Thomas and Neil Gorsuch have called on the Supreme Court to reconsider this precedent. Others may be open to that call. As a law professor, Justice Elena Kagan questioned whether the court went too far in extending Sullivan, and Justice Amy Coney Barrett refused to class Sullivan as a “super-precedent,” cases that, according to her, “no people seriously push for their overruling.”

Sullivan has long been a target of the conservative legal establishment. Its continued viability has itself become politicized. The late Justice Antonin Scalia said he abhorred the case. Judge Laurence Silberman, who sat on the powerful D.C. Circuit before his death last year, cited “Democratic Party ideological control” over the press as a reason to overrule Sullivan.

With approval from the top, lower court judges are increasingly arguing that it’s time for Sullivan to go.

While such a radical change in First Amendment law might have seemed unimaginable even a few years ago, that is no longer the case. The current Supreme Court has shown a willingness to revisit fundamental constitutional rights, most notably its June reversal of Roe v. Wade. Now long dormant state laws severely limiting a woman’s right to choose snapped back into force, causing chaos at the state level.

But we don’t have to sit back and wait for the Supreme Court to destroy one of the most important protections for free speech and press. In an article that we recently published in the Federal Communications Law Journal, we propose a solution: the Freedom of Speech and Press Act, a federal bill that would codify Sullivan and other vital free speech safeguards that rely on it. By writing Sullivan into law, we could insulate it from attacks by the court. (The bill’s text is in the article’s appendix.)

Sullivan emerged from the turbulence of the civil rights movement. An Alabama city commissioner was angry about an advertisement that civil rights groups ran in the New York Times accusing Southern police of mistreating protesters, so he sued the newspaper for defamation. After a jury trial in the courtroom of an Alabama state judge who had written articles in support of white supremacy, the jury awarded the commissioner $500,000.

The Supreme Court reversed the verdict. Although it was undisputed that the advertisement contained some trivial inaccuracies, the court said that some factual errors are inevitable in political debate.  To make out a case for defamation, the court held, public officials must establish “actual malice”—that a defendant published with either knowledge of falsity or reckless disregard of whether it was false.

This standard, the court wrote, provides the necessary “breathing space” for freedom of expression about public officials. “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable ‘self-censorship,’ ” Justice William Brennan wrote for the court.

By placing the burden of demonstrating falsity on public officials and requiring them to establish actual malice, Sullivan rejected the more plaintiff-friendly libel law of England and “reflected a far different view of how to reconcile the competing interests of protecting unjustly compromised reputation and assuring the protection of free speech than had previously existed in either England or the United States,” legendary First Amendment litigator Floyd Abrams wrote in 2022.

The impact of Sullivan soon reached far beyond defamation claims brought by government officials. The Supreme Court extended the actual malice requirement to defamation lawsuits brought by public figures and defined “reckless disregard” narrowly as requiring a defamation plaintiff to show that the defendant acted with a “high degree of awareness” of a statement’s “probable falsity.”

Although the court concluded that private figures need not demonstrate actual malice, it required them to make such a showing before they could obtain punitive damages—usually exorbitant damages meant to punish a defendant. To allow such unconstrained damages without a showing of actual malice, the court wrote, would impermissibly leave juries “to use their discretion selectively to punish expressions of unpopular views.”

The court later invoked Sullivan to place on private figures the burden of proving that a defamatory was false. And, in 1990, it ruled that the First Amendment prohibits defamation lawsuits arising from statements of pure opinion; in other words, the basis of a defamation lawsuit must be a claim that is provable as false. Each of these cases made it less risky for everyday citizens to open their mouths and engage in public debate.

This is only the beginning of Sullivan’s influence. The court has invoked Sullivan to protect political cartoons, to ensure that journalists aren’t prosecuted for doing their jobs, to protect information about where women can find abortion services, to ensure government transparency, and on and on.

In short, overturning Sullivan could affect far more than just defamation cases. That is why First Amendment advocates were so alarmed in 2019 when Thomas wrote that there are “sound reasons to question” Sullivan. He renewed his call to reconsider Sullivan in 2021, this time joined by Gorsuch. Last term, Thomas again implored his colleagues to revisit Sullivan—this time in a case brought by a religious media outlet that had been designated a “hate group” by the Southern Poverty Law Center.

If Thomas is able to convince his colleagues to overturn Sullivan, the First Amendment would no longer place constitutional limitations on defamation lawsuits. Because defamation lawsuits are governed by state law, defendants’ only protections would be on a state-by-state basis. As with the patchwork of abortion laws after the overruling of Roe, some states may well be exceedingly protective of free speech/free press rights. But others might use the overruling of Sullivan to impose draconian measures meant to control political debate.

Some states, such as New York, have enacted strong defenses that make it difficult for plaintiffs to bring abusive defamation lawsuits. But other states have weak or nonexistent protections. Sullivan itself, after all, was the result of Alabama’s war on the Northern press and its support for the cause of civil rights. The threat of a lawsuit in a plaintiff-friendly, media-hostile state could prevent a reporter or critic from ever speaking or publishing, fearing ruinous defamation judgments.

The possibility of an overruling is particularly concerning after many recent defamation lawsuits that high-profile politicians and celebrities have brought against journalists and those who have criticized them on social media. Worryingly, many plaintiffs appear to wage these lawsuits not to compensate them for damage to their reputations but to have a court settle a debate about important political or social issues.

Luckily, many of these lawsuits have failed thanks to the First Amendment protections of Sullivan. As Justice Samuel Alito recently wrote in a defamation case surrounding disputes over global warming, Sullivan and its progeny teach that courts should be especially wary of defamation claims arising out of “a political or social issue that arouses intense feelings.” Without these precedents, these kinds of lawsuits would be more likely to succeed, and even more powerful people would have an incentive to sue their critics.

The Freedom of Speech and Press Act that we propose would avoid such a chilling effect by setting baseline free speech protections nationwide. Although defamation is a matter of state law, federal law can set minimum standards and preempt inconsistent state laws. Perhaps the most notorious such law is Section 230 of the Communications Decency Act, which prevents online service providers from liability in lawsuits arising from user content.

Unlike Section 230, the Freedom of Speech and Press Act would not set an absolute prohibition on lawsuits. Instead, it would require state defamation lawsuits to provide protections that are similar to (or more expansive than) those that the Supreme Court provided in Sullivan and its progeny. Importantly, the proposed legislative findings would ensconce in federal statutory law our national commitment to “uninhibited, robust, and wide-open” debate while recognizing that certain defamation claims are contrary to that principle.

It would give teeth to these ideas first by requiring any plaintiff bringing a defamation lawsuit relating to a matter of public concern to demonstrate actual malice, and in all other cases, the plaintiff has the burden of proving falsity.

It would also ensure that speakers are not liable for expressing their opinions broadly defined, as it limits defamation lawsuits to those that are based on provably false factual claims. And the proposal also recognizes the devastating impact of multi-million-dollar jury awards by imposing limits on damages depending on the kind of defamation case.

While each of these provisions strike at a different problem created by the law of defamation, they all have the same aims. First, they protect the spirit of the Sullivan ruling from a court that is perhaps willing to disavow that case and what it stands for. Second, and importantly for citizens and news organizations around the country, these restrictions would discourage baseless defamation actions altogether while leaving the courts open to plaintiffs with valid claims.

Ideally, the Supreme Court will preserve Sullivan and its vital free speech protections for another 60 years. But this Supreme Court has demonstrated that it will not shy away from rethinking landmark precedent that had long been considered settled law. The Freedom of Speech and Press Act would prevent five Supreme Court justices from chilling the voice of a nation.

The views expressed in this piece are only the authors’ and do not represent Fordham University School of Law, the Defense Department, Department of Navy, the Naval Academy, or any other party.

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