If Post Alley called Donald Trump — who virtually everyone expects to be the Republican candidate for President again in 2024 — a liar and a thief, he’d probably love to sue the site for libel, but he’d know he couldn’t win. The Constitution, as the Supreme Court has interpreted it for decades, wouldn’t let him. Ten years ago, Trump lost a libel suit against an author who claimed he wasn’t really a billionaire.
Some people fear that interpretation won’t survive the current court.
Is New York Times v Sullivan, the unanimous 1964 Supreme Court decision that shields the press – and others – from libel suits by elected officials and other public figures unless the plaintiff can prove “actual malice” really in danger? Writing in the Washington Monthly last April, W. Wat Hopkins noted that “there are judicial grumblings that the Court may need to reconsider the rule. Two judges (one of them a Supreme Court justice) have caused a flurry of legal commentary by calling for reconsideration—and doing so in a context that suggests the press in America is too free.”
Actually two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have expressed reservations about Sullivan’s take on the First Amendment as the court currently views it. Thomas argues basically that the law wasn’t this way in 1791. Gorsuch argues that the world wasn’t this way in 1964.
They’re both right. That doesn’t mean a change is or should be imminent. But the issue matters. Writing in The New York Times, First Amendment lawyer Floyd Abrams suggests that the skepticism expressed by Thomas and Gorsuch may signal “a disturbing turn that could weaken speech protections and threaten the country’s free and robust press.”
For more than 170 years, the Supreme Court hadn’t treated libel as a First Amendment issue. Then along came Sullivan. In 1960, The New York Times published a full-page ad signed by 64 prominent Americans soliciting money for the legal defense of Martin Luther King, the support of non-violent student protesters, and the campaign for voting rights. The text talked about abuses by southern law enforcement agencies. It didn’t name any names. It continued some minor inaccuracies. (“Although Negro students staged a demonstration on the State Capitol steps,” the court noted, “they sang the National Anthem and not ‘My Country, ‘Tis of Thee.’”)
A Montgomery, Alabama city commissioner, L.B. Sullivan, sued the Times for libel. An Alabama jury awarded him $500,000 — the equivalent of about $4.2 million today. At the beginning of 1964, the case reached the Supreme Court.
The Supreme Court heard Sullivan in a crucial year of America’s battle over civil rights. The year before, Martin Luther King had given his “I have a dream” speech and Bull Connor, the Birmingham, Alabama commissioner of public safety, had met civil rights protesters with police dogs and fire hoses. The Civil Rights Act didn’t pass until later in 1964. The Voting Rights Act didn’t pass until the year after. A few months after Sullivan was decided, three civil rights workers were murdered in Mississippi.
The South wasn’t getting great press up north. And it hadn’t been getting great press in 1960, when the ad appeared. The Montgomery bus boycott had ended just four years earlier. Much of the South still hadn’t accepted Supreme Court rulings on civil rights. To deter negative coverage by northern papers and broadcast networks, some people in Alabama started filing libel suits.
Justice Hugo Black made that context clear in his Sullivan concurrence, which was joined by Justice William O. Douglas. “One of the acute and highly emotional issues in this country arises out of efforts of many people, even including some public officials, to continue state-commanded segregation of races in the public schools and other public places, ” wrote Black, who had been a Senator from Alabama — and, allegedly to give himself a chance in the state’s (then-all-white) politics, a member of the Ku KIux Klan.
Justice Black explained that “despite our several holdings that such a state practice is forbidden by the Fourteenth Amendment, Montgomery is one of the localities in which widespread hostility to desegregation has been manifested. This hostility has sometimes extended itself to persons who favor desegregation, particularly to so-called ‘outside agitators,’ a term which can be made to fit papers like the Times, which is published in New York.”The libel suit was clearly part of a campaign to intimidate unsympathetic publishers and broadcasters, with implications far beyond Alabama.”
Black didn’t view the Sullivan case in isolation. Already, he wrote, “a second half-million-dollar libel verdict against the Times based on the same advertisement has . . . been awarded to another Commissioner. There a jury again gave the full amount claimed. There is no reason to believe that there are not more such huge verdicts lurking just around the corner for the Times or any other newspaper or broadcaster which might dare to criticize public officials. In fact, briefs before us show that in Alabama there are now pending eleven libel suits by local and state officials against the Times seeking $5,600,000 [nearly $5 billion in today’s dollars], and five such suits against the Columbia Broadcasting System seeking $1,700,000.
“Moreover, this technique for harassing and punishing a free press—now that it has been shown to be possible is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make local as well as out-of-state news-papers easy prey for libel verdict seekers.”
The Court turned existing libel law on its head. The decision was unanimous: A public figure can collect a libel judgment only if he or she can prove “actual malice” — that is, unless the statement was knowingly false or made with a “reckless disregard” for the truth. In other words, unless you’re lying or just don’t care whether what you say is true or false, you’re home free, even if the statement is untrue and damaging. (If your target is not a public figure — and who isn’t these days? — you may have a harder case to defend.) Black and Douglas thought even that was too restrictive. Black argued that coverage critical of public officials should be exempt from state libel law, period.
Justice Black also noted that the only time Congress ever passed a federal libel law was in 1798, when our second President, John Adams — the only early President who wasn’t a slaveholder — got a Federalist majority to pass the notorious Alien and Sedition Acts, one of which made it a crime to “print, utter, or publish . . . any false, scandalous, and malicious writing” about the Government. That is still considered the great stain on Adams’ record and reputation. “Although the Sedition Act was never tested in this Court,” the Sullivan justices explained, “the attack upon its validity has carried the day in the court of history.”
Before the 1960s were over, the Court expanded Sullivan‘s scope from public officials to public figures. Then, in 1974, it created the concept of a “limited public figure,” who is “a person who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” When critics talk about limiting or at least reassessing the Sullivan protections, they usually refer to this broader landscape.
Who is “a limited public figure?” That depends. Take the case of Katherine McKee, who was one of the many women allegedly raped or otherwise assaulted by Bill Cosby. In 2015, she gave an interview to the New York Daily News in which she said Cosby had raped her 40 years before. Cosby’s lawyers wrote the paper a letter that basically called her a liar and implied she had a criminal record.
She sued for defamation. She lost. The courts reasoned that by giving the interview, she had voluntarily injected herself into a public controversy; that made her a limited public figure. Therefore she would have to meet the “actual malice” standard. So she was out of luck. The Supreme Court refused to hear her case.
“[S]urely,” Thomas has written, “this Court should not remove a woman’s right to defend her reputation in court simply because she accuses a powerful man of rape.” Also citing McKee, Justice Gorsuch has written that “[i]n many ways, it seems we have arrived in a world that dissenters proposed but majorities rejected in the Sullivan line of cases—one in which, ‘voluntarily or not, we are all public [figures] to some degree.’”
Whoever is or is not a public figure, the originalist Justice Thomas seems to be disturbed primarily by the Court’s ruling as a deviation from original intent. “The Court provided scant explanation for the decision to erect a new hurdle for public figure plaintiffs so long after the First Amendment’s ratification,” he has written. “The lack of historical support for this Court’s actual-malice requirement is reason enough to take a second look.”
Some observers doubt that a court majority will vote to scrap Sullivan, although they see the kind of reconsideration that Gorsuch favors as less of a longshot. No one seems to think that Justice Elena Kagan would vote to scrap Sullivan. but some note her 1993 article — written when she was an assistant professor of law — that referred to the court’s “puzzling adoption of the actual malice standard.”
Kagan wrote that [“t]hroughout the Court’s lengthy and active consideration of the case, the actual malice standard — in hindsight, by far the most significant aspect of the opinion — occasioned almost no debate . . . none of the Justices . . . raised any questions about the actual malice standard: Was it too strict? Was it necessary? Where did it come from? How would it work? On these critical issues, silence reigned.”
Kagan also wrote that “[t]he ultimate concern of Sullivan was to strengthen that process by ensuring that the citizenry receive important information about the conduct and policies of government officials. Certainly, the application of the actual malice standard in Sullivan served that function. But the malice standard may not have the same effects when applied more generally. Several commentators have noted that to the extent Sullivan decreases the threat of libel litigation, it promotes not only true but also false statements of fact-statements that may themselves distort public debate.”
Gorsuch seems to have thought seriously about unintended consequences, too. He has certainly noticed how far we’ve come — or, depending on your point of view, how low we’ve sunk — from the media environment of 1964.
“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,” Gorsuch has written, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable. As Sullivan’s actual malice standard has come to apply in our new world, it’s hard not to ask whether it now even [in the words of Kagan’s 1993 article,] ‘cut[s] against the very values underlying the decision.’ If ensuring an informed democratic debate is the goal, how well do we serve that interest with rules that no longer merely tolerate but encourage falsehoods in quantities no one could have envisioned almost 60 years ago?”
A good question. Nonetheless, the prospect of the Supreme Court even discussing Sullivan makes some people uneasy. “When the Supreme Court decided the Sullivan case 57 years ago,” Floyd Abrams wrote in the Times, “Alexander Meiklejohn, a leading First Amendment scholar, exclaimed that it was ‘an occasion for dancing in the street.’ If the court agrees to hear one or both of the libel cases before it [it hasn’t but there will be more], that wold be an occasion for us all to hold our breath.”
For some it might be an occasion to salivate. Donald Trump has long made it clear that he’d love the freedom to bring more libel suits against people who write mean things about him.
When Trump was running for office, he told a Fort Worth rally, “[o]ne of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”
Those old racist politicians from Montgomery would surely understand.