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Revisiting New York Times v. Sullivan with Justice Thomas

Justice Thomas used a recent cert denial to suggest the Supreme Court revisit its decision in the 1964 case New York Times v. Sullivan. In the case, the Court held the First Amendment prohibited damages to public figures for defamation unless the false, defamatory statement resulted from “actual malice,” meaning it was published “with knowledge that it was false or with reckless disregard of whether it was false or not.”

A couple of thoughts on Justice Thomas’s opinion and on the original case.

The problem with the original case is not the need to balance policy interests protecting the reputations of “public figures” relative to the chilling effect that the mere threat of litigation can have even on the publication of truthful speech. The problem is deciding which branch of government is most appropriate to weigh those interests in relation to one another, the judiciary or the legislature.

One can agree entirely with the policy decision represented in New York Times v. Sullivan while believing the decision should be overturned because decisions of those sort should be made by legislators rather than by judges. As Thomas wrote in his decision, “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”

A judge or justice agreeing with Thomas could vote to overturn the decision in New York Times, resign from the bench to run for the legislature, then, as a legislator, vote for a bill that would adopt the same standard the legislator voted against as a judge. There would be no contradiction in the person’s behavior. What is an appropriate decision for a legislator to make is not necessarily an appropriate decision for a judge to make.

Secondly, discussion of the decision New York Times often gets framed in terms most favorable to the press: Its role in communicating information vital to democratic decision making and the desire to avoid self-censorship on the part of the media.

Framing the case around the protection of unprofessional behavior on the part of journalists reduces the romantic picture of the media painted by the Court.

To be sure, the decision does allow recovery of damages for false, defamatory statements published with the knowledge they were false or published with reckless disregard for their truthfulness. What this standard protects, however, is the publication of false, defamatory statements that resulted from negligence. Merely negligent behavior is still unprofessional behavior even though it does not rise to the level of “reckless” behavior on the culpability scale.

Negligence is “a failure to behavior with the level of care that someone of ordinary prudence would have exercised under the same circumstances.” A journalist who negligently defamed an individual would be protected under the standard announced in New York Times even though the journalist failed to exercise that degree of care a journalist of ordinary prudence would have exercised under the same circumstances. The decision immunizes unprofessional behavior from legal liability irrespective of the substantial damage the reporting of false, defamatory statements that unprofessional behavior might cause to a public official.

In reading the original case one gets the image of small-town newspapers taking on the deep-pocketed Mr. Potters of the world. (Recall Mr. Potter is the villain in the Jimmy Stewart film, It’s a Wonderful Life.)

Yet with the significant increase in market concentration that has occurred in the media over the last generation, the accuracy of this picture is questionable. The media are often the deep-pocketed parties in these disputes rather than the government officials.

Further, the publication of salacious stories is one means by which the media attract readers and viewers, and thereby command higher advertising or subscription rates. Legally protecting unprofessional journalistic behavior of profit-making businesses in today’s media environment arguably invites a different balancing of interests than it did in 1964.

There is the additional question of how the decision relates to the type of person willing to get involved in government in the U.S. The notion politicians are fair game for defamation as long as the false statements are not published with “actual malice” can’t help but deter some decent individuals otherwise from exposing themselves to this sort of treatment, at least at the margin. I am unsure we have so many of these types of politicians in government in the first place to deter them by privileging negligent defamation from recovery.

None of this is to suggest that legislatures would necessarily balance interests any differently than the Court did in New York Times. And there is concern legislators might see themselves desiring to file these actions against the media more than judges do, and so legislatively balance interests with a self-interested thumb on the scale relative to judges. Irrespective, Thomas is correct that the policy decision of the U.S. Supreme Court in New York Times reflects a legislative accommodation between the different interests. And legislative decisions should be made by legislators, not by judges.

Reader Discussion

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on March 13, 2019 at 15:59:51 pm

Thomas is correct that the policy decision of the U.S. Supreme Court in New York Times reflects a legislative accommodation between the different interests. And legislative decisions should be made by legislators, not by judges.

I was with you right until the last sentence. Yes, there can be more than one way to interpret Constitutional provisions. And arguably the choice between interpretations can be legislative in nature. But when a court is called upon to interpret the Constitution, it must do so, ruling on the circumstances it has before it--not the circumstances it might wish to have.

For example, there is more than one way to calculate compensation for government takings under the Fifth Amendment. The choice among these methods might reflect a legislative one. So, if a jurisdiction's legislature has not yet articulated a standard, should courts therefore conclude that government is free to engage in rampant takings without the duty to provide any compensation whatsoever--because, to adopt ANY specific measure of compensation would wrongfully intrude upon the prerogatives of the legislative branch to designate some different measure?

I'm not persuaded that the legislative branch should get to stifle the judicial branch simply through inaction. That's hardly consistent with the concept of co-equal branches of government.

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nobody.really
on March 13, 2019 at 16:10:22 pm

For one thing, maybe the real problem isn't Sullivan but Curtis Publishing. Seems to me a persuasive case can be made that an elected official differs not just in degree but in kind from a "public figure." Had that line been drawn and held, there would not have been so many problematic Sullivan progeny.

For another, as the simple negligence standard has mostly evolved into a de facto strict liability rule throughout the torts world, such a standard (which one can easily imagine legislators approving as far as libels against themselves are concerned), would cure the patient by killing it. As far as litigation goes, the process is the punishment, and what media outlet would want to see its treasury continually depleted by lawsuits from aggrieved politicians, especially as it is likely the legislators would also enact that their legal defense fund was the public fisc. Not only that, but removing a decision as to the legal standard to be adopted--actual malice or simple negligence--from the courts to the legislature is a distinction without a difference, as the burden of doctrinal development of any such standard--in other words, progeny--will be left to the courts anyway.

Finally, I am not persuaded that a today versus 1964 premise has much merit, considering that at least since the days of Hearst, the press has used salacious and sensational stories to sell its wares.

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QET
on March 13, 2019 at 16:18:17 pm

"I’m not persuaded that the legislative branch should get to stifle the judicial branch simply through inaction. That’s hardly consistent with the concept of co-equal branches of government."

And what of the obverse?

Should the Judicial get to stifle the Legislative? It would appear that this latter case occurs somewhat more frequently.

Some may recall that a number of the Founders advocated for Advisory Opinions by the Judicial to assure constitutionality. This was rejected. I think properly so BUT...

could not the Court suggest / advise in its decision that, using your 'takings" case, this particular "taking" is wrong and cannot proceed AND that the Legislative MUST articulate a specific standard for any and all "takings." Absent such a move by the Legislative, "THIS" Court will look with disfavor upon any similar State action.

The Court is NOT legislating in this instance; rather, it is reminding the Legislative Branch of its own constitutional duty / prerogative.

BTW: I cannot believe it. I find myself in substantial agreement with all of Roger's latest essays. Goodness gracious, what is happening, Edith?

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gabe
on March 14, 2019 at 13:19:21 pm

I urge readers to consider the February 24 response to Justice Thomas's opinion by Marty Lederman at Balkinization (balkanization.blogspot.com), which strikes me as a persuasive response to his position on originalist grounds.

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G Alan Tarr
on May 28, 2019 at 13:56:57 pm

In 1964, the Supreme Court changed the direction of libel law dramatically with its decision in New York Times v. Sullivan. For the first time, the Supreme Court placed some libelous speech under the protection of the First Amendment.

Today, in this so-called “information age” we are witnessing escalating chaos and a possible unhinging of our precious democracy due to this dangerous SCOTUS decision - a post-truth world full of fake news where facts are irrelevant and Nazi-like propaganda that breeds hatred rules the day.

I would only hope that a similar case reaches SCOTUS to revisit and change this wildly reckless, dangerous and irresponsible libel law. Freedom of the press should not mean freedom to slander and lie about ANYONE anymore than freedom of speech means it is OK to yell "FIRE" in a crowded theater.

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John W.

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