News Update

Justice Clarence Thomas has a few items remaining on his originalist to-do list. Moving up the list with each passing term is revisiting New York Times v. Sullivan and, presumably, purging the “actual malice” standard the Court conjured in 1964. Justice Gorsuch is up for the challenge, but they need to convince two more of their colleagues to hear a case.

At the end of the most recent term, Gorsuch joined Thomas’ dissent to the Court’s denial of certiorari in Dershowitz v. CNN. The short opinion directs the Court to Thomas’ dissent in 2021 in Berisha v. Lawson. That, in turn, builds on Thomas’ concurrence in the denial of cert in McKee v. Cosby two years earlier. In McKee, Thomas explains “why, in an appropriate case, we should reconsider the precedents that require courts” to determine if a plaintiff is a “limited-purpose public figure.” That is, Sullivan and its progeny.

The bottom line for Thomas, as he states in Berisha and re-ups in Dershowitz, is that the actual malice standard for public figures “bears ‘no relation to the text, history, or structure of the Constitution.’”

A truly unprecedented standard like actual malice arose from the Court seeing a problem where its predecessors did not.

For nearly 200 years, libel law and the freedom of the press co-existed peacefully, each in their own domain.

“No Liberty to Libel: The Constitutional Case against New York Times v. Sullivan,” by University of Nebraska–Omaha political science professor Carson Holloway, walks through the cases and commentaries that spanned libel law and laws protecting the freedom of the press, from the first decades of the Republic up through Sullivan to the present. The Supreme Court’s and state courts’ rulings were consistent and unequivocal until 1964.

Justice Joseph Story, for example, wrote in 1833 that the idea that the First Amendment grants someone “an absolute right to speak, or write, or print” whatever they wished, without risk of consequence, was “a supposition too wild to be indulged by any rational man.” For if that was the case, “every citizen [would have] a right to destroy, at his pleasure, the reputation, the peace, the property, and even the personal safety of every other citizen.”

In Washington Post v. Chaloner (1919), the Supreme Court wrote that because of “the wide circulation of present-day newspapers and their power for doing injury to reputation … the ancient doctrine ‘Whatever a man publishes he publishes at his peril’ should be strictly enforced.”

Just over a decade before Sullivan, in Beauharnais v. Illinois (1951), the Court could still breezily and without controversy dismiss an argument by stating that “Libelous utterances not being within the area of constitutionally protected speech.”

Holloway writes that Sullivan “signaled [the Court’s] departure from — not to say its outright disdain for — this long-established understanding” that “libel suits raise no constitutional problems.” The Sullivan Court thrust what it saw as the indirect consequences of libel laws — their potential chilling effect on true statements in the public interest — into “the domain of the First Amendment.”

Speaking with Holloway about why the Court in Sullivan overwrote this abundance of precedent, he identifies three cultural trends that were upstream of law and politics.

“The Founders established a republic or a democracy. But the country that produced them, England, had what Alexis de Tocqueville in Democracy in America called an aristocratic social state. Aristocracies put a premium on honor and reputation, and don’t tolerate any kind of stain to the reputation.”

As I often remind people, Alexander Hamilton died in a duel over an affront to reputation.

“Honor culture was still very powerful at the time of the founding,” Holloway continues.

Gentlemen would disagree and argue with the policies or the ideas that were being put forward. But they would never suggest that anything was done with an improper motive — that would be unworthy of themselves and whoever they were speaking of.

The more democracy progresses, the more that sense of honor tends to recede, and reputation loses some of its force.

Likewise, notions of Christian morality that were more prevalent at the Founding than they were in the mid-20th century also protected reputation.

“The Christian principle of interpretive charity means you would always interpret someone’s behavior — and, in this case, speak of it — in the best way possible. That applied not just at the level of libel and slander, but also detraction: saying something bad about somebody, even if it is true.”

As late as 1931, the Supreme Court affirmed an element of libel law that would have been familiar to Blackstone but is anathema to contemporary approaches. The Court upheld in Near v. Minnesota that the First Amendment protects a true statement only if it “was published with good motives and justifiable ends.”

Interpretive charity can still be found in some extant standards. “No innocent construction” is an element of defamation law in many states. A statement is potentially defamatory if there is “no innocent construction” of that statement. For example, if someone falsely accuses a college sports coach of having an affair with a student-athlete on his team, there’s no spin or gloss or sophistry that can make that anything less than devastatingly defamatory. There is no innocent construction for such a statement.

With reputation and interpersonal charity receding as values in American culture, more licentious strains of libertarianism took hold, including the idea of free speech absolutism. That set the immediate context of New York Times v. Sullivan.

Holloway thinks that Justice William Brennan, who wrote the majority opinion, was a “political liberal of that generation. He probably sincerely thought that the First Amendment requires a lot more protection for individual freedom of speech than what people thought in the past.” Which is to say, Brennan might have been a thoughtful and astute legislator. Unfortunately, he performed that role while wearing a black robe.

Justice Thomas wants to revisit New York Times v. Sullivan for precisely this reason: it’s among the most flagrant examples of legislating from the bench. Holloway’s book provides the history to support that claim. Thomas may wish to send it to his colleagues as some late summer reading in the hopes of convincing two more to sign on to the next cert petition.

Justice Gorsuch is more concerned that the actual malice standard and the notion of “public figures” are wildly outdated in the digital age. The standards in Sullivan have “evolved into a subsidy for published falsehoods on a scale no one could have foreseen, [and] has come to leave far more people without redress than anyone could have predicted.”

Neither Justice, though, appears interested in restoring the right to reputation nor affirming its place as a natural right. That’s a missed opportunity to not only to restore the rights of Americans but to entice other justices to reconsider Sullivan.

Sullivan downgraded reputation from a right to a privilege. Only people who are sufficiently non-public can sue to protect their reputation. That’s one of the two-tier systems of justice that Sullivan created. Sullivan also gave a legal backstop to the coarsening of our culture, particularly our civic and political discourse. It’s a very short line, philosophically and chronologically, between Sullivan and the social media provocateurs who have become the leading voices of our time.

Most importantly, the consequences of injury to reputation are not ephemeral. Someone who is defamed or libeled faces professional and financial ruin, social isolation, and significant mental and physical health consequences — including suicide.

People no longer wield violence on the field of honor to defend or avenge their reputation. But they will turn the violence against themselves over the seemingly insurmountable loss of their reputation.

The originalist case for overturning New York Times v. Sullivan is strong and coherent. But Sullivan has plenty of arguments and consequences that warrant reconsideration by jurists of all stripes.

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