In a sign of hard times for traditional free speech values, U.S. Supreme Court Justice Neil Gorsuch has added his voice to that of Justice Clarence Thomas in calling for a re-examination of the landmark 1964 precedent of New York Times v. Sullivan – the case that makes it extremely difficult for public figures to win libel suits.
Thomas’ view, first expressed in 2019, was that the press protections established by Sullivan violated the original intent of the First Amendment. It was inconsistent with his own free speech jurisprudence, and was therefore unlikely to garner support from other justices.
Gorsuch’s opinion last week, in contrast, focused on the up-to-the-minute problem of misinformation in the age of social media. Gorsuch’s concerns aren’t trivial or ideological. He quoted a 28-year-old old essay in support of them written by his Supreme Court colleague Elena Kagan when she was a law professor. Gorsuch’s opinion raises at least the possibility that other justices might be open to rethinking the question of public figure libel.
In the Sullivan case, the court held that when a public official sues someone for libel, it isn’t enough to show that the challenged statement was false and defamatory, which is all that a regular person would have to show in such a lawsuit. The public official has to show that the false and defamatory statement was made with “actual malice,” meaning that the person who made it either knew it was false or recklessly disregarded its falsehood. In subsequent cases, the justices extended the Sullivan rule from public officials to all “public figures,” a category that the court has never pinned down precisely but that extends well beyond the most famous celebrities.
Needless to say, established news organizations love the Sullivan decision and usually treat it – justifiably – as a landmark of American free press protection. The case insulates reporters and editors and the companies they work for from being constantly threatened with libel suits by public figures who are annoyed with how they are being covered. Without the precedent, the media would have to be prepared to defend factual assertions in court, a difficult task that could expose anonymous sources, undermine good-faith decision-making and intimidate all but the strongest journalistic institutions. With it, a media defendant in a libel case brought by a public figure can just plead ignorance of reporting a falsehood, even if it got the facts wrong.
Gorsuch’s critique of Sullivan rests on the idea that since 1964, “Our nation’s media landscape has shifted in ways few could have foreseen.” The decline of legacy media and the rise of social media, Gorsuch argued, has led to a rise in misinformation. Gorsuch pointed out, correctly, that fake news is much cheaper to produce than real news – and that anyone can do it. The editors and fact checkers of legacy media are “disappearing,” he wrote.
In this environment, Gorsuch proposed, the Sullivan precedent creates a perverse incentive not to check facts – so that you can later say that you didn’t realize what you were saying was false. He threw in the concern that today, everyone is a public figure to some degree or another, making libel suits harder for everybody.
The upshot, for Gorsuch, is that the Sullivan rule no longer serves its original objective of creating an informed public debate.
In a touch that might sound cute but is actually significant, Gorsuch invoked Kagan. He quoted an essay that she wrote in 1993 while an assistant professor at the University of Chicago, reviewing a laudatory book about the Sullivan decision by the journalist Anthony Lewis. In it, Kagan noted that the actual malice standard might have the unintended effect of promoting not only true but also false statements of fact – “statements that may themselves distort public debate.” Thus, Kagan, concluded, “the legal standard adopted in Sullivan may cut against the very values underlying the decision.”
The power of Gorsuch’s opinion is to suggest that Kagan’s concerned prediction from almost 30 years ago has come to pass under the conditions of social media misinformation. Although Kagan did not join Gorsuch last week, she is likely to consider his point germane. The Sullivan rule does have costs and benefits – and that means the court should be considering whether the balance has changed in a new media ecosystem. The fact that Gorsuch could quote Kagan underscored the non-ideological nature of the issue.
Part of the theory behind Sullivan’s reasoning was that public figures can overcome false, defamatory statements about themselves relatively easily, even without defamation suits. Today, it has become harder for such stories to be shunted aside. In Thomas’ own separate opinion, in which he added some non-originalist concerns, he mentioned as a case in point the 2016 shooting inside a Washington pizza parlor inspired by a fantastical conspiracy theory circulating online.
What’s more, non-celebrities who might still be deemed public figures under current law are vulnerable to false, defamatory online attacks. Sullivan makes it very hard for them to vindicate their concerns about their own reputation.
The conclusion is that it no longer seems inconceivable that the court could revisit New York Times v. Sullivan. If that happens, the debate will be fought in terms of whether changes since 1964 mean that the precedent is no longer achieving its own objectives.
Noah Feldman is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.
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