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NYT v. Sullivan Unfortunately Lives to Fight Another Day
Justice Clarence Thomas said it “comes at a heavy cost, allowing media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’” It is New York Times v. Sullivan, America’s defining defamation law and it unfortunately lives to fight another day. Or mess one up.
Thomas, along with others on the Supreme Court, declined earlier this month to revisit the landmark First Amendment decision in New York Times v. Sullivan, rebuffing a request (the case involved a man falsely accused in the press of being a felon) to take another look at decades-old precedent that created a high bar for public figures to claim defamation in civil suits. Since 1964 the media relied on the case to fend off costly defamation lawsuits brought by public figures. The ruling established the requirement that public figures show “actual malice” by the press before they can succeed in a libel dispute.
Defamation is untruths commonly referred to as libel if in print. Five standards have to be met when the defamation takes places between the media and a public figure: 1) the defamatory words have been published; 2) The person being defamed was identified by the statements; 3) The remarks had a negative impact on the person’s reputation; 4) The named Defendant wrote the defamatory remarks; 5) The published information is demonstrably false or was published with a reckless disregard for the truth. That means it was published without investigating whether it was accurate.
New York Times v. Sullivan held the First Amendment protects media even when they publish false statements, as long as they did not act with actual malice. What happened in the case was civil rights leaders had run a full-page fund raising ad in the Times, describing “an unprecedented wave of terror” by the police against peaceful demonstrators in Montgomery, Alabama. Not all the bad things they accused the cops of doing were true, and made the police look worse then they were. So L.B. Sullivan, in charge of the cops in Montgomery, sued the New York Times for libel, claiming they printed something they knew was false to harm his reputation. After losing in a lower court, the Times appealed to the Supreme Court and won.
The Times argued if a newspaper had to check the accuracy of every criticism of every public official, a free press would be severely limited, and that the 1A required the margin of error to fall on the side of the media in the cases of public officials. In short, mistakes were going to be made even with good intentions by the media. The Court created a new standard for libel of a public figure, “actual malice” defined in short as having the knowledge that something was false or published with “reckless disregard” for truth. Justice William Brennan asserted America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Free and open debate about the conduct of public officials, the Court reasoned, was more important than occasional, factual errors that might damage officials’ reputations. The standards laid out in Sullivan are why The New York Times has not lost a libel case in America ever since.
In the recent case the Court just refused to hear (Thomas still wants to review Sullivan but said the current case is not the right vehicle for that), Don Blankenship v. NBC Universal, local media labeled Blankenship a felon, causing him to lose a run for the West Virginia Senate, he maintains. The truth is that Blankenship committed a misdemeanor and was sentenced to one day less than if the case had involved a felony charge. In arguing for Blankenship to a lower court, his attorneys wrote “The actual malice standard poses a clear and present danger to our democracy. New York Times v. Sullivan and its progeny grant the press a license to publish defamatory falsehoods that misinform voters, manipulate elections, intensify polarization, and incite unrest.”
Attorneys for the media outlets successfully urged the justices not to take up the case, arguing the reporting mistakes were honest ones. “There is good reason why the actual malice standard of New York Times has been embraced for so long and so often,” the media organizations told the justices. “At its essence, the standard protects ‘erroneous statements honestly made.’ While it permits recovery for falsehoods uttered with knowledge of falsity or with reckless disregard for the truth, it provides the ‘breathing space’ required for ‘free debate.’ A free people engaged in self-government deserves no less.”
Those are the standard Sullivan arguments. It’s just that Justice Thomas does not agree. The Sullivan ruling and ones elaborating on it, he wrote, “were policy-driven decisions masquerading as constitutional law” with “no relation to the text, history or structure of the Constitution… the actual-malice standard comes at a heavy cost.” His colleague Justice Neil Gorsuch, in an earlier statement, wrote “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 has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
It may indeed be time for a change. Sullivan was written for a different media world, one dominated by a handful of huge companies like the New York Times which could be held to high standards. They were assumed to be honorable in their work, and if a mistake was made it was most likely an accident. Reporting was just that, news, reported out to the people are accurately as possible. Not so in 2023. The media is a splintered mess, with teenage YouTube influencers reaching vast audiences, challenging the giants of yesterday to a share of the market. These micro-outlets have no fact checking staff, are typically run by people with no journalistic training and maybe not even a high school diploma, and are gloriously, joyfully not trying to be fair and accurate. They traffic instead in gossip and innuendo, smearing together fact and fiction because that attracts eyeballs to their work, their only standard.
This sort of competition affected the mainstream media, which became more and more partisan and less concerned about the truth if a story brought in readers. One need only look at the embarrassing bits of what passed for journalism as major should-know-better outlets like the Times and the Washington Post reported falsehood after falsehood throughout Russiagate and indeed the entire Trump administration. Given the freedom to make mistakes in the name of the First Amendment, these organs instead took that as license to play at the line of reckless disregard for the truth. How else could a Pulitzer prize be awarded in part of placing Trump fixer Michael Cohen in Prague to meet with Russian spies, or claim a Trump Organization email server was instead a secret communications portal to the Kremlin via Alfa Bank? How could the standard in Sullivan meant to promote robust debate end up protecting a serious column in the Washington Post headlined “Here are 18 reasons Trump Could Be a Russian Asset” without the retort of a defamation suit available?
Sullivan was meant to protect the underlying value of debate even in the face of product of carelessness and substandard journalistic methods. Its era has passed, wasted by the modern media on confections like YouTube and frauds like Russiagate. The Times of 1964 earned the right to make mistakes in service to a greater good; the Times of 2023 would embarrass its earlier self in how it has exploited such a gift.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Sarah Palin v. New York Times v. and the First Amendment
What is Sarah Palin up to suing the New York Times for libel? Is she really trying to change the First Amendment and does she know what she is doing?
Palin v. The New York Times Company is now before a district court in New York, and no matter the verdict is also certainly headed for the Supreme Court. It seeks to overturn precedent from 1964 that gave America some of the world’s strictest libel laws, laws which depending on which way the wind is blowing (i.e., if the media is red or blue and if the offended politician is red or blue) either allow for fake news and misinformation, or protect the 1A rights of a free press. So oh yes, the Palin case is political.
The story began on June 14, 2017, when a left-wing activist shot at Republican politicians playing baseball on a field in Virginia (wounding, among others, Louisiana’s Steve Scalise). The NYT wrote “Was this attack evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old-girl, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”
The Times quickly issued multiple “corrections,” pointing out it had “incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by [Palin’s] political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.”
Palin filed a libel suit, quickly dismissed, stating the Times defamed her in claiming her PAC’s advertising somehow incited people to violence, and the Times darn well knew it was not true. After five years of wrangling, Palin got the case reinstated and it is now ongoing in New York.
Under current law, four standards have to be met to succeed. Palin has to show 1) what the Times wrote was false. Not in contention, they knew it and issued corrections; 2) the article specifically referred to Palin; yep. 3) That what the Times wrote was defamatory, which caused Palin harm and 4) the Times knew what it published was false or that in publishing them it showed a reckless disregard for the truth. Number 4 refers to the standard of “actual malice.”
The standard for libel cases between the media and public figures goes back to 1964’s Sullivan v. The New York Times Company, when the Court held the First Amendment protects media even when they publish false statements, as long as they did not act with “actual malice.” What happened was civil rights leaders had run a full-page fund raising ad in the Times, describing in detail what they called “an unprecedented wave of terror” of police actions against peaceful demonstrators in Montgomery, Alabama. Not all the bad things they accused the cops of doing were true, and made the police look worse then they were. So L.B. Sullivan, in charge of the police response in Montgomery, sued the New York Times for libel, claiming they printed something they knew was false and harm his reputation. In an Alabama court, Sullivan won and the New York Times was ordered to pay $500,000 in damages.
The Times appealed to the Supreme Court and won. In greater context, Sullivan freed northern journalists to aggressively cover racial issues in the south, shielded from the threat of libel suits. It represented a significant broadening of the 1A.
The Times argued broadly if a newspaper had to check the accuracy of every criticism of every public official, a free press would be severely limited, and that the 1A required the margin of error to fall on the side of the media in the cases of public officials (things work differently if both parties are private citizens.) The Court responded by creating a new standard for libel of a public figure, “actual malice” defined in short as having the knowledge that something was false or published with “reckless disregard” for truth. Justice William Brennan asserted America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Free and open debate about the conduct of public officials, the Court reasoned, was more important than occasional, factual errors that might damage officials’ reputations.
The standards laid out in Sullivan are why the New York Times has not lost a libel case in America ever since.
In the Palin case, to avoid disturbing the precedent, the Times is arguing their article did no harm to Sarah Palin. She continues to bop around the national political arena doing whatever it is she does. Palin’s side is leaning on the precedent directly, arguing the Times had no evidence whatsoever that her PAC had incited anyone, never mind the instant shooting case, and that the Times employee who wrote the original article thus exhibited “reckless disregard” for the truth and claimed “the reason he didn’t check these facts is simple. He didn’t care.” The case is in early days, but everyone already can map out what the arguments are going to have to be, based on the criteria in Sullivan.
A lot of journalistic slush has flowed downhill since Sullivan in 1964, and attitudes toward trusting the media have changed. The media of 1964 set themselves the goal of objectivity, or at least the appearance thereof. In 2022 places like the NYT wear their partisanship as a badge of honor, and they overtly mock and hate people like Sarah “Caribou Barbie” Palin. They spend years wallowing in stories of far-reaching importance with reckless disregard for the truth, whether that be fake WMDs in Iraq to kick off a war, or Russiagate to try to bring down a president. The glory days of the Pentagon Papers, or the meticulous reporting on Watergate, are long, long gone.
The Supreme Court which wrote Sullivan is also long gone. Completely separate from Palin’s lawsuit, last year Justice Neil Gorsuch added his voice to an earlier statement by Justice Clarence Thomas and questioned the standards set in Sullivan. Thomas, in a libel case dissent, specifically scolded the media over conspiracy theories and disinformation. He cited news reports on “the shooting at a pizza shop rumored to be the home of a Satanic child sex abuse ring involving ” and a NYT article involving “online posts falsely labeling someone a thief, a fraudster and a pedophile.” Thomas wrote that “instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.”
Siding with Thomas, Justice Gorsuch reminded in his own recent dissent in 1964 media was dominated by a handful of large operations who routinely “employed legions of investigative reporters, editors, and fact checkers… Network news has since lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that monetize anything that garners clicks.” Gorsuch is clear this requires a reassessment of Sullivan, and for the first time in a long time has a conservative majority court seated around him perhaps ready to do so. This all in the face of likely presidential candidate Donald Trump, whose criticism of libel laws, focused on Bob Woodward’s books about his presidency, is well-known.
Sarah Palin’s case against the New York Times comes at this junction in history. It leaves many with a bad taste in their mouths, particularly those who generally support broader First Amendment rights. A ruling which lessens the standards in Sullivan and ultimately leaves Palin the winner (libel laws are technically state-level torts, but the Supreme Court defines the boundaries in line with the Constitution) would have a chilling affect on the media. Maybe not super-media like the Times which has money for lawyers and relishes a good 1A fight, but smaller outlets who could not afford to defend themselves. Everyone remembers the demise of Gawker.
At the same time, if the Court rules against the Times and allows a new standard which encourages more public figures to sue, it will only be the media’s own fault. Given the freedom under Sullivan to have close calls always fall their way, too many in the MSM purposefully exploited that treasure, using the 1A as a dummy front for sensationalizing garbage and outright partisan propaganda. It is unlikely in a post-Sullivan world Russiagate would have become a three year media event. In that instance, as the truth was exposed and falsehoods revealed about even the minor players, their libel suits would have stopped the whole thing cold. As Justice Gorsuch wrote, the Sullivan standard Palin is contesting has offered an “ironclad subsidy for the publication of falsehoods” by a growing number of media that can disseminate sensational information with little regard for the truth. Maybe its time to change that.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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