The Supremes Don’t Have to, But… (The Irony of Conservatives’ War on Press Freedom)


The path the conservative Supreme Court justices followed to Dobbs – when they decided that the Constitution didn’t really guarantee a right to abortion – may be one they can follow again.  It looks like the Supremes may get the chance, this time dealing with the politically hot issue of freedom of the press.

Faced with the facts of Dobbs, the justices didn’t have to overrule Roe.  But they did. Last year, faced with a Mississippi anti-abortion law that clearly violated the Constitution as the court had interpreted it for nearly half a century, the majority decided the problem wasn’t the law but the interpretation of the Constitution that the Roe court expressed in 1973.

This time around, the legislature in Ron DeSantis’ Florida is considering – but has not yet passed – legislation backed by DeSantis that would violate an even-longer-lived SCOTUS interpretation of the Constitution. The issue this time isn’t abortion but a decision that shields news organizations from legal liability for their good-faith coverage of politicians and other public figures.

In the 1964 Sullivan decision, the court the Court said that the First Amendment shielded a news organization from liability for any statement made about a public figure, even if untrue, unless that statement was made with “actual malice” – that is, knowingly false or made with a “reckless disregard” for the truth. Subsequent decisions extended the shield beyond public officials to all public figures and to those private citizens who knowingly insert themselves into the public area (making them “limited-purpose public figures). The Florida bill would, among other things, raise the bar for qualifying as a public figure, and would expose to liability any statement attributed to an anonymous source that the reporter won’t disclose.

If this becomes law and a case challenging it makes its way to the Supreme Court, the Court will face the same kind of choices it did in Dobbs: 1) Call out the law’s blatant unconstitutionality or, 2) in effect, change the Constitution, or 3) find a very narrow opening to do neither.

Getting rid of Sullivan’s constitutional shield has evidently earned a place on many conservatives’ wish lists. It has long had a place on Donald Trump’s.  In 2016, before he won the White House, Trump said on Fox, “We ought to open up the libel laws, and I’m going to do that.” At a Texas rally around the same time, he elaborated “[W]hen they write purposely negative and horrible and false articles, we can sue them and win lots of money.”

He has already tried to do just that:  In 2009, he sued a writer for saying in a book that he wasn’t really a billionaire.  Trump asked $5 million in damages.  A judge dismissed the case, and an appeals court sustained the decision.

Should liars always be burned at the stake?  Not necessarily.  Falsehoods have certainly been protected in certain circumstances and certain places.  The Washington Supreme Court decided 16 years ago that in a political campaign, it’s perfectly OK to lie about one’s opponents.  The (one-vote) majority reasoned that in order to criminalize lies, you’d need the government to decide what was true – and do we really want the government to have the last word on political truth? 

Political lying has been with us for a long time – probably forever. Arguably, it paved the way for the American Revolution. In her excellent 2022 biography of the Revolutionary figure Samuel Adams, Stacy Schiff makes clear that Sam Adams did more than anyone else to stoke the American colonists’ resentment toward and desire for liberty from Great Britain.  And he did so by lying shamelessly about the behavior of British troops, colonial governors, and anyone else who made a useful target.

 But Sullivan doesn’t protect outright lying.  It may not, for example, protect  Fox News’ lying about election fraud.  Dominion Voting Systems, the maker of voting machines about which Fox parroted dubious claims of election fraud, has sued the network for $1.6 billion.  Dominion’s discovery in the case has led to the much-seen and much-discussed revelation of texts and emails in which Fox on-air personalities and executives made it clear that they knew the claims were fraudulent and that some of the Trump allies making the claims were perhaps unhinged.  

But they also knew that their audience believed – or wanted to believe – the falsehoods, so Fox went out and lied for money.  Fox chairman Rupert Murdoch has pretty well acknowledged this. In the eyes of its beholders, Fox had evidently committed blasphemy, and the business-oriented decision was to stop blaspheming.

Ironically, Fox may not lose.  Sullivan may wind up shielding Carlson and his colleagues after all.  Fox can claim that it wasn’t lying; rather, it was merely reporting, not advocating for, the election deniers’ point of view.  You can argue that what Fox News did in the Dominion case was – to put the most favorable spin on it – pretty much what Internet platforms do all the time.  But the platforms have — so far — been shielded from legal liability by Section 230 of the federal Communications Decency Act.

So the free press has Sullivan and the non-press has Section 230.  Few observers think that the court will scrap or severely modify Section 230.  The odds for Sullivan seem a little less clear.‘

If the Massachusetts of Samuel Adams’ day seems remote, so does the United States of the Sullivan court’s.  Back then, the “mainstream media” were pretty much what there was – lots of newspapers, the big urban dailies at full strength, the three big broadcast TV networks with a near-monopoly.  And the justices who decided the case — William Brennan, who wrote the majority opinion and Chief Justice Earl Warren – had grown up before hot-talk radio was a thing, much less television or (unforeseen and largely unforeseeable) the Internet.

Taking very different looks back, Justices Thomas and Gorsuch have both expressed reservations about Sullivan.  Thomas figures that you have to go back to the way the first Amendment was understood in 1791 – which seems patently ridiculous.  The bewigged guys who wrote out their thoughts with quill pens had good ideas, but how they would have applied them to today’s conditions isn’t knowable.  To suggest otherwise is to perform a kind of historical ventriloquism. 


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