It’s Time To Codify The ‘NY Times v. Sullivan’ Standard Into Law

For all the misleading claims about free speech under attack" in place where it is definitively not under attack (i.e., on social media sites, or via cancel culture"), there are many areas in which free speech absolutely is under attack, and there may be no bigger one than the (relatively new!) movement to overturn the extremely important NY Times v. Sullivan case from 1964 that basically set the standards for defamation of a public figure. Basically, in an effort to make defamation law compatible with the 1st Amendment, the Supreme Court realized that it had to have a very high bar to bringing a successful defamation case. Otherwise, the Court (accurately) surmised, the rich and powerful would bring such cases against critics for just minor inaccuracies.

Specifically, the Sullivan case set forth the actual malice" standard for defamation of a public figure. This oft-misunderstood standard actually has nothing to do with malice" in the colloquial sense. The standard is not this person wanted to hurt the plaintiff." The standard is that the speaker needed to know that what they were saying/writing was false and still go forward with it or they had to have reckless disregard" for the truth. And reckless disregard" is also frequently misunderstood as well: being negligent does not count. Not asking for a comment, absolutely does not count. Reckless disregard means that the person effectively had serious doubts about the accuracy of the statement... and still made or published it.

This standard has been incredibly important for almost 60 years now. It means that the rich and powerful can't sue someone for defamation for a simple mistake or a slightly misleading argument. It really has to be a case where the person knew what they were saying or writing was wrong, but chose to put it out there anyway to hurt the person. It has to be done on purpose. That is what actual malice" means.

And it's incredibly important in protecting free speech, especially for those criticizing the rich and powerful.

Back when Donald Trump was first elected as President and promised to open up our libel laws" (something he did not actually do) Ken Popehat" White noted how difficult that would be, noting that (unlike something like Roe v. Wade), there hadn't been a huge movement to undermine Sullivan.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above. You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find ones who would reliably overturn Sullivan and its progeny. It's an outlying view - not chemtrail-level, but several firm strides in that direction....

In short, there's no big eager group of overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

Except... that over the last few years, there actually has been the beginnings of just such a movement. Back in 2019, Justice Clarence Thomas wrote an unprovoked attack on the Sullivan standard. He's done this a few times in the last few years, almost always attacking settled 1st Amendment doctrine. Rather than actually waiting for a case that is relevant, he'll issue a concurrence along with a denial of a cert petition, where he just sort of muses aimlessly (without any of the relevant briefing or knowledge) about something he randomly hates about the way the 1st Amendment is presently interpreted. Indeed, Thomas seemed particularly perturbed that the rich and powerful were unable to silence the annoying people who made fun of them (he claims that public figures deserve more protection from criticism, rather than less, since it is more serious and injurious" to them, a statement that seems to be dripping with disdain for everyday people).

In 2021, Thomas's mentor and good friend, DC Circuit Judge Laurence Silberman (who more recently passed away) wrote such an unhinged screed against Sullivan that it made me question how anyone could take any of his decisions seriously. Specifically, Silberman bitched about the awful liberal media" and how it had ideological control" of the world with the apparent help of big tech" which he insisted only helped Democrats (despite all evidence showing the reverse is true). He talked about how only Rupert Murdoch was standing strong and fighting back against this horrible turn of events, but seemed to think that because Murdoch was just one man, authoritarian and dictatorial" leftists (no, really) were going to take over the world, if we didn't get rid of the Sullivan standard.

Out of this we've seen a much more concerted effort to now overturn Sullivan. And this should frighten anyone who actually believes in free speech. Having seen what was done in overturning Roe, there's a clearer playbook for overturning old precedents. It doesn't happen overnight, but building up a movement is part of the deal. We've also seen some starting to push cases challenging Sullivan, including from Sarah Palin and Devin Nunes.*

And that's why some professors are calling on Congress to do what the could have done to protect Roe (but never did), and make an effort now to take the Supreme Court's Sullivan standard and have Congress pass it into law. Professor's Matthew Schafer and Jeff Kosseff not only wrote a paper about this, but even outlined the legislation necessary to do it, the Freedom of Speech and Press Act." As they discuss in their Slate article about the paper:

The Freedom of Speech and Press Act that we propose would avoid such a chilling effect by setting baseline free speech protections nationwide. Although defamation is a matter of state law, federal law can set minimum standards and preempt inconsistent state laws. Perhaps the most notorious such law is Section 230 of the Communications Decency Act, which prevents online service providers from liability in lawsuits arising from user content.

Unlike Section 230, the Freedom of Speech and Press Act would not set an absolute prohibition on lawsuits. Instead, it would require state defamation lawsuits to provide protections that are similar to (or more expansive than) those that the Supreme Court provided in Sullivan and its progeny. Importantly, the proposed legislative findings would ensconce in federal statutory law our national commitment to uninhibited, robust, and wide-open" debate while recognizing that certain defamation claims are contrary to that principle.

It would give teeth to these ideas first by requiring any plaintiff bringing a defamation lawsuit relating to a matter of public concern to demonstrate actual malice, and in all other cases, the plaintiff has the burden of proving falsity.

It would also ensure that speakers are not liable for expressing their opinions broadly defined, as it limits defamation lawsuits to those that are based on provably false factual claims. And the proposal also recognizes the devastating impact of multi-million-dollar jury awards by imposing limits on damages depending on the kind of defamation case.

All of this seems quite reasonable and useful. That is, if you actually believe in free speech.

Now, we just need a Congress willing to do so.

* The fact that folks like Thomas, Palin, and Nunes are the ones leading the charge for undermining this key free speech principle should, again, raise questions of anyone who argues that the modern GOP is committed to supporting free speech and the 1st Amendment. It seems they're quite happy to destroy free speech if it allows them to punish their critics.