It Is Time for Sullivan to Go

Justice Clarence Thomas said it “comes at a heavy cost, allowing media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’” It is New York Times v. Sullivan, America’s defining defamation law, and it unfortunately lives to fight another day—or ruin one.

Thomas, along with others on the Supreme Court, declined earlier this month to revisit the landmark First Amendment decision in New York Times v. Sullivan, rebuffing a request (the case involved a man falsely accused in the press of being a felon) to take another look at decades-old precedent that created a high bar for public figures to claim defamation in civil suits. Since 1964, the media has relied on the case to fend off costly defamation lawsuits brought by public figures. The ruling established the requirement that public figures show “actual malice” by the press before they can succeed in a libel dispute.

Defamation is untruths commonly referred to as libel if in print. Five standards must be met when the defamation takes places between the media and a public figure: 1) the defamatory words have been published; 2) the person being defamed was identified by the statements; 3) the remarks had a negative impact on the person’s reputation; 4) the named defendant wrote the defamatory remarks; 5) the published information is demonstrably false or was published with a reckless disregard for the truth. That means it was published without properly investigating whether it was accurate.

New York Times v. Sullivan held that the First Amendment protects the media even when they publish false statements. What happened in the case was civil rights leaders had run a full-page fundraising ad in the Times describing “an unprecedented wave of terror” by the police against peaceful demonstrators in Montgomery, Alabama. Not all the bad things they accused the cops of doing were true, and made the police look worse than they were. So L.B. Sullivan, in charge of the police in Montgomery, sued the New York Times for libel, claiming they printed something they knew was false to harm his reputation. After losing in a lower court, the Times appealed to the Supreme Court and won.

The Times argued that if a newspaper had to check the accuracy of every criticism of every public official, a free press would be severely limited, and that the First Amendment required the margin of error to fall on the side of the media in the cases of public officials. In short, mistakes were going to be made even with good intentions by the media.

The Court created a new standard for libel of a public figure, “actual malice” defined in short as having the knowledge that something was false or published with “reckless disregard” for truth. Justice William Brennan asserted America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Free and open debate about the conduct of public officials, the Court reasoned, was more important than occasional, factual errors that might damage officials’ reputations. The standards laid out in Sullivan are why the New York Times has not lost a libel case in America ever since.

In the case the Court just refused to hear (Thomas still wants to review Sullivan but said the current instance is not the right vehicle), Don Blankenship v. NBC Universal, local media labeled Blankenship a felon, causing him to lose a run for the West Virginia Senate, he maintains.

The truth is that Blankenship committed a misdemeanor and was sentenced to one day less than if the case had involved a felony charge. In arguing for Blankenship to a lower court, his attorneys wrote,

The actual malice standard poses a clear and present danger to our democracy. New York Times v. Sullivan and its progeny grant the press a license to publish defamatory falsehoods that misinform voters, manipulate elections, intensify polarization, and incite unrest.

Attorneys for the media outlets argued the reporting mistakes were honest ones: 

There is good reason why the actual malice standard of New York Times has been embraced for so long and so often… At its essence, the standard protects ‘erroneous statements honestly made.’ While it permits recovery for falsehoods uttered with knowledge of falsity or with reckless disregard for the truth, it provides the “breathing space” required for “free debate.” A free people engaged in self-government deserves no less.

Those are the standard Sullivan arguments. It’s just that Thomas does not agree. The Sullivan ruling and ones elaborating on it, he wrote, “were policy-driven decisions masquerading as constitutional law” with “no relation to the text, history or structure of the Constitution… The actual-malice standard comes at a heavy cost.” 

His colleague, Justice Neil Gorsuch, in an earlier statement wrote, “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

It may indeed be time for a change. Sullivan was written for a different media world, one dominated by a handful of huge companies like the New York Times which could be held to high standards. They were assumed to be honorable in their work, and if a mistake was made it was most likely an accident. Reporting was just that—news, reported out to the people as accurately as possible.

Not so in 2023. The media is a splintered mess, with teenage YouTube influencers reaching vast audiences, challenging the giants of yesterday to a share of the market. These micro-outlets have no fact-checking staff, are typically run by people with no journalistic training and maybe not even a high school diploma, and are gloriously, joyfully not trying to be fair and accurate. They traffic instead in gossip and innuendo, smearing together fact and fiction because that attracts eyeballs—their only standard.

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This sort of competition has affected the mainstream media, which is more and more partisan and less concerned about the truth if a story brings in readers. One need only look at what passed for journalism as major outlets like the Times and the Washington Post reported falsehood after falsehood throughout the Russiagate scandal, and indeed during the entire Trump administration.

Given the freedom to make mistakes in the name of the First Amendment, these organs instead took that as license to play at the line of reckless disregard for the truth. How else could a Pulitzer prize be awarded in part for placing Trump fixer Michael Cohen in Prague to meet with Russian spies, or claim a Trump Organization email server was instead a secret communications portal to the Kremlin via Alfa Bank? How could the standard in Sullivan meant to promote robust debate end up protecting a serious post-Mueller column in the Washington Post headlined “Here are 18 reasons Trump Could Be a Russian Asset” without the retort of a defamation suit available?

Sullivan was meant to protect the underlying value of debate even in the face of carelessness and substandard journalistic methods. Its era has passed. The Times of 1964 earned the right to make mistakes in service to a greater good; the Times of 2023 would embarrass its earlier self in how it has exploited such a gift.