For 55 years, the United States has had the strongest protections for the press of any country, all because of a landmark ruling—a ruling that, on Tuesday, Justice Clarence Thomas asked the Supreme Court to revisit.
When the Supreme Court sided with the publisher over an ad seeking donations to defend Martin Luther King Jr. in 1964, New York Times v. Sullivan gave us a new standard for proving defamation: "actual malice," meaning that the organization or journalist must have had to knowingly publish a falsehood. As a result, it's very hard for a public figure to win a libel case.
At the time of Sullivan, public officials were using libel lawsuits as a way to stall coverage of the civil rights movement, the New York Times reports. Without this principle, there would not be much to stop the same thing from happening again, despite Thomas' claim that "the states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm."
Thomas' call echoes that of another public official—President Donald Trump—who previously pledged to "open up our libel laws" and has doubled down on his assault on the press as the "enemy of the people." Fake news, including the Russian bots that influenced the 2016 presidential election, has had very real consequences for both democracy and basic safety. But experts note that this concept has already been used to justify eroding press freedoms internationally. (Trump himself has brought several libel suits—many of which were unsuccessful due to the protections enshrined in this case, later extended to include public figures.)
In light of Thomas' request—and a highly politicized defamation case filed Tuesday over the Covington Catholic incident—Pacific Standard talked to Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, about this ruling's significance and future.
At the risk of making this a media law and ethics lesson, can you explain what was so foundational about this case?
When you look at New York Times v. Sullivan, it's impossible to divorce it from the social and political context in which it arose. It happened at the the height of the civil rights movement, [when] many news organizations from the North were covering the South. They were not warmly received, to put it mildly. While some journalists did, in fact, face physical threats, the most important was a financial threat, which came from libel suits.
The jury verdict against [the New York Times], for running what we'd now call an "advertorial," was a big amount of money for the time. When you look at the fact that they were reporting on controversial issues and controversial public figures, what Justice [William] Brennan recognized [in his opinion] was: If news organizations could be vulnerable to crippling libel suits for simply making good faith factual errors, this would chill reporting and make [media organizations] much more reluctant to take on important stories.
The ruling said it wasn't that public officials could never sue for libel, but they would have to meet this heavy burden of "actual malice," which isn't ill will, it is knowingly publishing falsehoods or acting recklessly in what you choose to publish. That's a very high standard. Public officials have this ability to criticize other people, but news organizations at that point didn't. So it's all about leveling the playing field.
What has this case made possible, in terms of specific instances of reporting?
[The case] has been an incredibly powerful tool to deflect lawsuits in the first place, so it's hard to prove a negative. For example, when [former U.S. Army Chief of Staff General William Westmoreland] sued CBS over [its] reporting on Vietnam—and there are many other examples. If you look at Justice Thomas' conferring opinion, he makes reference to a handful of cases brought by Bose Corporation; I think people sometimes forget that companies are public figures too. Having New York Times v. Sullivan in place has helped those who are trying to be watchdogs.
How does U.S. freedom of the press compare to that of other countries, and how much can we attribute that to this case?
Up until fairly recently, we basically stood alone in allowing as much protection in New York Times v. Sullivan. Canada and Britain have, in relatively recent years, started drifting into the same sphere, but, even so, they're not nearly as strong in their protection. That's why Congress passed a statute a few years ago to limit the ability of libel plaintiffs who'd gotten judgments in other countries to come to the U.S. to enforce them, to actually get the money.
This is a principle that protects everybody, whatever their political viewpoint may be. This is not based on thinking the right political thoughts or supporting the right candidate. Sometimes I sense that the opposition to the idea of New York Times v. Sullivan seems to, at the moment, come from the right, but it could just as easily come from the left. With the exception of Thomas—and we really don't know what [Trump appointees Neil] Gorsuch and [Brett] Kavanaugh are going to do—there's really been nobody on the Supreme Court who was enthusiastic about suggesting it was time to re-examine this, and that includes justices of many different political viewpoints. Partly, this is because they respect stare decisis and precedent that's been in place for a while, but I also think because they're wise enough to see this is a principle of law that has served the public discourse very well.
What do you make of Thomas' criticisms? Do you see them as an extension of Trump's claims?
I think Thomas is floating a trial balloon here. If the question is, is New York Times v. Sullivan in danger of being overruled, I would say not at the moment. It's a big deal to overrule a constitutionally based decision that has been in place this long and relied upon so heavily.
Of course, with Trump repeatedly saying we need to change the libel laws, whatever that means (there really isn't federal libel law beyond these constitutional standards), you could read that as a call to action, that he's looking for justices who will do what Thomas proposed. If that becomes a criterion, all bets are off. I hope somebody has explained to the president that he can't just change the law by executive fiat. As a practical matter, he doesn't have the authority.
What would it mean to take away this protection?
States like California have laws called anti-SLAPPs [strategic lawsuits against public participation] intended to protect people and journalists as well [from lawsuits] brought with the specific purpose of trying to silence criticism. Some people would point to those statutes and say they're enough. While they are valuable, I think the fact that you've got a constitutional standard so firmly in place means the kind of nuisance suits that can wear you down and frankly bankrupt smaller news organizations are very much limited.
I get the argument about things like "fake news," but libel law isn't about determining truth in the abstract, it's about determining whether somebody published something false and defamatory about someone. The courts are not the place to arbitrate whether something is true or false, period.
It's interesting that we're talking about this just as the family of the Covington Catholic teen filed a lawsuit against the Washington Post. What do you make of that?
It's going to come down to a question of, did they report false factual statements that they could have or should have known were not true? You can't hold news organizations to a clairvoyant standard. The line that they're using, that this is all part of a conspiracy because [the Post] hates Donald Trump—again, this is not Trump suing them. This is a guy who, according to his complaint, didn't buy his MAGA hat until he got to [Washington, D.C.]. To suggest you're going after some teenager as part of your attack on Trump seems kind of counterintuitive to me.
Trump didn't invent the term [fake news], and he didn't invent the idea. There are lots of groups out there, from both sides of the spectrum, that would like to undermine the idea that the mainstream media is a reliable source of information. From that perspective, this is a potentially dangerous situation, where the use of the phrase "fake news" is encouraging people to ignore sources of information that have proved their reliability in the past, by calling them into question based on supposed ideological bent. That's what this complaint does: [It claims] the Post has it in for Trump and they'll do anything to disparage those who support him. The vast majority of [legacy media] would reject that.
This interview has been edited for length and clarity.