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What to do About New York Times v. Sullivan
Andrew Hyman

On July 2, Justices Thomas and Gorsuch each discussed the case of New York Times v. Sullivan, while dissenting from denial of certiorari in the case of Berisha v. Lawson.  

Justice Thomas makes some valid points.  Many defamatory falsehoods go unremedied nowadays because NYT v. Sullivan required that certain plaintiffs (“public officials”) must prove that the statement in question is a reckless or deliberate falsehood rather than a mere negligent falsity.  The progeny of that case have enlarged its holding tremendously, for example extending it from public officials to all public figures. Not only do these judicial requirements mean that speakers and writers can get away with lots of harmful negligent falsities, but it also means they can get away with lots of reckless or deliberate falsehoods too because the plaintiff may only be able to prove they were negligent falsities.  Justice Brennan’s opinion in NYT v. Sullivan was skillfully written and is (superficially) closer to a persuasive originalist opinion than are the later opinions that amplified it.  Justice Thomas has elsewhere written that, “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”  Maybe so, but it might be tactically wiser to first seek to erode the decisions extending it, as Professor Glenn Reynolds counsels.

Justice Gorsuch’s dissent from certiorari in Berisha v. Lawson points out that even living constitutionalists should be concerned about adhering to a court decision that was made in the 1960s when the worlds of journalism, media, and communication were so vastly different from how they are in 2021:

[O]ur Nation’s media landscape has shifted in ways few could have foreseen….Departures from the Constitution’s original public meaning are usually the product of good intentions. But less clear is how well Sullivan and all its various extensions serve its intended goals in today’s changed world.

If the Court decides to leave Sullivan alone for now, it will have plenty of work to do cutting back on its progeny which bear virtually no resemblance to the historical argument against sedition bans that Justice Brennan made in Sullivan.  But if the Court instead decides to revisit Sullivan sooner rather than later, it will get right to the heart of the matter, and I’ll just summarize three issues that come to mind.

First, if a defendant wins after being sued for defamation by a public official, why not construe the First Amendment as requiring the plaintiff to pay defendants’ attorney fees? The American Rule (saying each side pays his own lawyer bills) apparently did not arise until after the First Amendment was written and ratified, and so the contrary rule could be considered an aspect of the First Amendment insofar as it safeguards freedom of speech.  Notice that I am assuming that the version of freedom of speech that has been applied against the states is the version that existed in 1792, rather than the version that existed in 1868, but I think that’s a correct assumption.  Letting these defendants get their attorney fees paid would greatly alleviate the danger of restoring the right of public figures to sue for negligent defamation.

A second problematic Sullivan-related issue that I’ll mention is Justice Brennan’s strong reliance upon James Madison’s reaction against the Alien and Sedition Acts.  If a plaintiff in a civil defamation case requests actual compensatory damages because of proven reputational harm (perhaps including attorney fees as I mentioned above), and only seeks punitive damages if actual malice is proved, then I am not seeing much similarity to the criminal penalties imposed by the Alien and Sedition Acts. 

A third issue with Sullivan is that some prominent people who were on Madison’s side during the debate about the Alien and Sedition Acts emphasized that state officials could go after negligent defamation even if the federal government could not.  As one scholar has described:

Jefferson was no advocate of a "licentious" press; like Hamilton and Adams he believed that the press ought to be restrained "within the legal and wholesome limits of truth."  He differed from the Federalists chiefly in insisting that this restraint be imposed by the states rather than by the Federal government….

The First Amendment prohibits “abridging the freedom of speech, or of the press,” and various scholars and judges have argued that the definite article “the” has some impact here.  Journalist Anthony Lewis acknowledged that, “The word ‘the’ can be read to mean what was understood at the time to be included in the concept of free speech.”  If people like Jefferson, Hamilton, and Adams were correct that state officials pre-1792 were not reluctant to counteract negligent defamation, then that suggests freedom from such counteraction was not considered part of the free speech concept.  Thus, the Constitution’s main restraint upon the federal government counteracting negligent defamation was not so much the First Amendment as the simple fact that none of the powers delegated to the Federal Government in 1789 included any power to regulate journalism (or to regulate defamation by anyone).  While I agree that the First Amendment applies fully against the states, I very much doubt that the Fourteenth Amendment went further by categorically stripping the states of the powers that had already been reserved to the states by the Tenth Amendment, such as power to deal with negligent defamation.

So, all in all, it seems like circumstances have changed a lot since Lester Bruce Sullivan lost his lawsuit in 1964.  And he should have lost, because the negligence of the New York Times was not enough to support punitive damages as a constitutional matter, and the trial verdict did not distinguish between compensatory and punitive damages.  But even though it got to a correct result, the U.S. Supreme Court could have reached it in a manner much more in keeping with the Constitution.  Incidentally, one of the most interesting things I read while researching this blog post was the partial retraction by the Times of the defamatory advertisement in question, which suggests that the Times did not intentionally defame anyone by publishing that advertisement.

Lastly, I would like to thank Professor Eugene Volokh for commenting (twice!) on earlier drafts of this blog post.  As usual, every opinion or mistake (or negligent defamation) above is my responsibility alone.