Q & A with Prof. Lili Levi: A Closer Look at New York Times v. Sullivan

“Justice Clarence Thomas might hold a revered seat on the nation’s highest court, but that doesn’t mean his judgment always reflects sound reasoning,” read a recent editorial in the St. Louis Post-Dispatch. “He was way off base Tuesday in calling for the Supreme Court to revisit New York Times v. Sullivan.”
 
Indeed, Thomas’s solo opinion, sued as part of a concurring opinion in the Court’s decision not to consider a civil suit against Bill Cosby by one of the women who accused him of sexual assault, took many by surprise.
 
“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Thomas wrote.
 
Lili Levi, a professor of law at the University of Miami’s School of Law, whose scholarship focuses primarily on communications and media law, tells us why the ruling is so foundational and what the consequences would be if it were overturned.
 
Why is New York Times v Sullivan so important?
 
Prior to the landmark 1964 decision in New York Times v. Sullivan, defamation (libel and slander) was considered a matter of state law. Courts assumed that the Constitution wouldn’t protect defamatory publications, and state laws did not require plaintiffs in defamation cases to show that defendants had published the defamatory statements with any form of fault. In New York Times v. Sullivan itself, trivial inaccuracies in an editorial advertisement calling for support of Dr. Martin Luther King and the growing civil rights movement led to an outsize defamation verdict of $500,000. The plaintiff, who had not even been specifically named in the advertisement and whose reputation was likely burnished rather than tarnished in much of his community by the ad, was making a political point attempting to shut down out-of-state criticism of Southern violence against African-Americans attempting to assert civil rights. Indeed, as Anthony Lewis documented in his book Make No Law, the case against the Times was part of a concerted effort to silence the press with respect to the civil rights struggle. By the time Sullivan was decided, the New York Times and other press outlets were facing $300 million in potential liability in defamation actions brought by Southern officials. Liability of this magnitude would have bankrupted the New York Times and other press entities.
 
In New York Times v. Sullivan, the Supreme Court added a constitutional gloss to state defamation law, requiring public officials to show that defamatory falsehoods relating to their official conduct had been published with “actual malice”—meaning knowledge that the statements were false or reckless disregard as to their falsity. In doing so, the Court erected a bulwark against strategic campaigns by public officials to silence speech critical of government. Simply put, New York Times v. Sullivan is important because it protects the press and the public’s right to criticize public officials in the conduct of their duties. This is an extraordinarily important democratic right, and is particularly valuable at times of political controversy and polarization. At the time it was decided, New York Times v. Sullivan was hailed as “an occasion for dancing in the streets.”
 
Last week, in an opinion concurring in the Supreme Court’s decision not to consider a defamation case brought against Bill Cosby, Justice Clarence Thomas suggested that the Court should reconsider the New York Times standard in the appropriate case. Why?
 
Justice Thomas’ opinion characterizes New York Times and its progeny as “policy-driven decisions masquerading as constitutional law.” He calls for the Court to reconsider application of this “policy-driven” constitutional approach and to engage in an originalist inquiry: “If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.” His analysis harks back to what he characterizes as the original meaning of the First Amendment and the 18th Century common law of libel.
 
To the extent that Justice Thomas is historically correct in his interpretation of original meaning, a Supreme Court decision to base the footprint of the First Amendment in originalist terms would be very bad for the freedoms of speech and press that we simply assume today. It is not irrational to suspect that the Framers of the Constitution had a narrower conception of free speech and perhaps even a free press than we do now. So, a turn to Justice Thomas’s view of original intent would necessarily bring with it a significant reduction in press freedom.
 
How devastating would it be for the media if New York Times v Sullivan were overturned? Is it likely?
 
It would be revolutionary and devastating if New York Times v. Sullivan were overturned. Justice Thomas’ unnecessary and inflammatory comments, while notable in themselves, come at a particularly troubling time—one where the President of the United States has called the press the “enemy” of the American people, where he asserts the need to “open up” libel law, and where violence and vitriol against journalists have become endemic.
 
I don’t believe that the Roberts Court would overrule New York Times v. Sullivan. Chief Justice Roberts recently characterized himself in a speech as the First Amendment’s “most aggressive defender” on the Court. I’m also heartened by the fact that Justice Thomas was alone in his comments in the McKeecase. Admittedly, some earlier Justices (such as Justice Scalia) have expressed doubt about the New York Times standard. But those doubts have not carried the day. Moreover, it is true that the Roberts Court has not affirmatively expanded rights for the press as such. Still, New York Times is not only a press case. I don’t see any appetite in the rest of the justices to topple one of the most significant First Amendment cases in American history.
 
Still, in my view this is not the moment for a Supreme Court justice to suggest that critique of government officials should be potentially punishable without reference to fault. The intemperate political rhetoric that whips up backlash against the press is very dangerous, and positions like Justice Thomas’s may serve as signals for lower courts and juries to accord the press very little deference even with respect to core political speech. New York Times v. Sullivan realistically explained that “erroneous statement is inevitable in free debate,” and sought to provide adequate breathing space for the press to engage in its democratic role as government watchdog. That role is enshrined in the Constitution itself, which specifically guarantees not only freedom of speech, but also freedom of the press.
 
How would reversal of the New York Times standard, from a legal standpoint, affect the decisions of newspapers and TV news broadcasters to report on allegations from credible sources?
 
The point of the New York Times standard is to protect well-intentioned journalists and media organizations from intimidation and censorship by public officials and powerful public figures. As it is, the press today has many incentives to avoid controversy. Investigative reporting is costly. The 21st Century press is beleaguered economically. Amy Gajda has shown, in her book The First Amendment Bubble, that courts and juries are less deferential to the press than in the heyday of the 1960s and 1970s. Legal developments such as government crackdowns on leakers and threats of prosecution for journalists already doubtless add to the chilling effect on the press. A bird’s eye view suggests that even without the possibility of a New York Times reversal, the modern press is operating under a mosaic of chill. Without question, reversal of such a bulwark of protection would lead to timidity in reporting on the doings of public officials and powerful private actors. This is not to say that the press should be irresponsible, but rather that we shouldn’t give a weapon to powerful individuals who want to exploit the press’s unintended errors as handy clubs to silence criticism. The press acts as the public’s proxy. If its reporting is unduly deterred, then the public as a whole is harmed.

How does U.S. freedom of the press compare to that of other countries?
 
The U.S. is unusual in this regard. In the U.K., for example, there is no similar rule and the result is much more libel litigation. Many people prefer to sue in places like England because the libel laws are different and more relaxed. This doesn’t mean that the actual malice standard is perfect in its application in all cases. At times the courts err in deciding who is or is not a public figure or what is truly reckless reporting. This doesn’t mean, however, that we should abandon the intent of the Sullivan standard.
 
In what way, if any, are you using these latest developments as a teaching moment for your students?
 
Ironically, my Media Law class is at this very moment discussing New York Times v. Sullivan and its expansion to public figures in subsequent cases. While I am extremely disappointed that Justice Thomas would add fuel to the anti-press fire, I can’t imagine a better teaching moment for a class in Media Law.