They’re still up in arms.
A week after Justice Clarence Thomas called for the Supreme Court to reexamine New York Times v. Sullivan, the landmark 1964 ruling that shields news reporters from libel and defamation lawsuits, provided they were acting in good faith, reaction from news organizations and professional journalism groups remains one of concern.
“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, issued 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.
In this News@TheU Q&A, Lili Levi, a professor of law at the University of Miami’s School of Law, whose scholarship focuses primarily on communications and media law, and Sam Terilli, an associate professor in UM’s School of Communication, who practiced media, commercial and employment law for more than 30 years, including 12 years as the general counsel of the Miami Herald Publishing Company, take a closer look at New York Times v. Sullivan, telling 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.”
—Lili Levi, professor of law
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.
—Lili Levi, professor of law
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 McKee case. 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.
—Lili Levi, professor of law
This is a tough question to answer because it is hard to imagine going back to a pre-Sullivan world. If we were somehow to return to the state of the law before 1964, then the news media in many states would have little protection from abusive libel lawsuits. This is hard to imagine because Sullivan is settled law and because while one might argue over the application of the “actual malice” standard under Sullivan in particular cases, there is really no question that the First Amendment is relevant to defamation suits and that is the heart of the Sullivan case.
It might be useful to think a bit about what the Sullivan or actual malice standard really means and why the Court adopted it in 1964. The Court saw government officials in Alabama state court using the common law of libel to punish civil rights activists and the New York Times for criticizing the State of Alabama, its police and, other officials. The court said the First Amendment is meant to encourage a wide-open, robust and free debate about public affairs and in those debates some unintentional errors are inevitable. To punish those honest errors would discourage any wide-open debate or examination of government, so the Court ruled that only knowing falsehoods (i.e., lies) or statements made recklessly (i.e., without any regard for truth) could be used by officials to sue for libel. This rule was later extended to public figures of great power and access to the media.
Some legal scholars have asked if the actual malice standard goes too far and encourages sloppy—though not reckless—journalism. The fact is that the mainstream news media is staffed by human beings and they make honest mistakes—exactly what the Sullivan court meant to protect. If we were to gut Sullivan all we would do is discourage honest, hard-hitting reporting about the government, officials, and the powerful in society because honest errors are always possible and the stakes will be just too high.
—Sam Terilli, associate professor and chair of the Department of Journalism and Media Management in the School of Communication
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.
—Lili Levi, professor of law
Justice Thomas’s opinion comes at a time when the press is under attack by a sitting U.S. president. Trump praised a libel lawsuit against The Washington Post and called The New York Times “a true enemy of the people!” And Christopher Paul Hasson, the Coast Guard lieutenant arrested on gun and drug charges last Friday, had a hit list that included journalists from CNN and MSNBC. Could such backlash directed at the press contribute to putting New York Times v. Sullivanin jeopardy?
Current events and comments by the president have certainly made the situation worse, more divisive, and more volatile. The attacks on the press are shortsighted and politically driven. Interestingly, many people, including some of the same advocates attacking Sullivan, seem to have forgotten or never knew that Sullivan doesn’t just protect the press. It protects all of us in at least two ways. It not only encourages reporting, but also protects each of us as individual speakers in society. We, too, can make honest mistakes.
I have a hard time imagining the Supreme Court taking these calls for revising libel law seriously enough to reverse Sullivan. First, the right case would have to come along and make it to the Court. Second, they’d have to be willing to reverse more than 50 years of settled precedent. This rule cannot be changed by merely passing a new law. It must either happen in the Court or in the form of a constitutional amendment—unlikely as that is. Instead, what one might see over time is the gradual narrowing of the Sullivan rule or tightening up of its application.
—Sam Terilli, associate professor and chair of the Department of Journalism and Media Management in the School of Communication
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.
—Sam Terilli, associate professor and chair of the Department of Journalism and Media Management in the School of Communication
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.
—Lili Levi, professor of law
