The quiet part out loud
The New York Times’ estimable reporter Adam Liptak, who covers the Supreme Court, recently wrote an article suggesting that the Court may soon decide to revisit one of what has been among its most venerable precedents — one that involved the Times itself. That decision is New York Times v. Sullivan, from 1964, which provides broad protection for newspapers and other press outlets from defamation lawsuits by public officials and “public figures.”
The case that raised this possibility was entitled Berisha v. Lawson. Just before the justices skipped town for their summer vacations in early July, they decided not to review the lower court decision in Berisha. Two of the justices dissented from that decision, saying that they thought the court should have used Berisha to take a new look at the Sullivan case.
One of those dissents wasn’t that surprising: it came from Clarence Thomas, who has repeatedly called for the Sullivan case to be re-examined. He provided a bit of background: In 2015, a writer named Guy Lawson published a book supposedly telling the “true story” of how three Miami youngsters became international arms dealers. A central plot point involved how the three traveled to Albania to deal with the “Albanian mafia.”
Wait, wasn’t that Liam Neeson? In “Taken”? Or “Taken 2”?
Well, anyway, Shkelzen Berisha was identified in Lawson’s book as one of the three friends who supposedly became arms dealers. After the book performed well, Lawson sold the movie rights to Warner Bros., which made the movie “War Dogs.” And wonder of wonders, Berisha — who claims that he isn’t an international arms dealer — sued Lawson.
The two lower courts that took up Berisha’s lawsuit had to decide whether he was a “public figure.” And how do you know whether he was a “public figure”? Well . . . he was a central character in a book written by Guy Lawson that said he was an international arms dealer!
Actually, there may have been more to it than that, but both lower courts eventually concluded that Berisha was indeed a public figure. And with that, Berisha’s case was effectively over, because the Sullivan case and some later court decisions have held that to win a defamation case against an author, publisher, etc., the person suing has to prove “actual malice” — that is, that the writer or publisher knew that the published information was false.
But the best Berisha could do was to argue that Lawson relied on flimsy third-party information to claim that he sold arms and consorted with Albanian criminals. Case dismissed!
The second dissent, though, was the one that got Liptak’s attention (and that of a lot of other court-watchers, too). It was written by Justice Neil Gorsuch, who as Liptak pointed out, had said when testifying in 2017 during his confirmation hearings that Sullivan was “the law of the land,” and that after nearly 60 years, there was no reason to reconsider it.
In his Berisha dissent, however, Gorsuch tipped his hand that he no longer thinks that way. Gorsuch complained that “over time the actual malice standard has evolved from a high bar to recovery into an effective immunity from liability.” He concluded by stating that, given the vast changes since 1964 in how information is disseminated, it was time to take another look at the Sullivan protections.
Still, the part that made Gorsuch’s musings most significant may have been that he twice cited a 1993 book review written by his Supreme Court colleague Elena Kagan. Kagan, although typically counted as one of the court’s three “liberal” members, occasionally votes with the conservatives such as Gorsuch and Thomas. And while her 1993 review was written long before she became a judge, it raises the same question that Gorsuch and Thomas did. Kagan’s review suggested that while Sullivan may have been correct when applied to public officials, she thought its extension first to “public figures” (such as movie stars and the like), and later to those known as “limited public figures” who “voluntarily inject” themselves into or who are “drawn into a particular public controversy” was unwise.
Hmmm . . . Andy Warhol may have been on to something about everyone being famous for 15 minutes. And he died in 1987, before the Internet was a thing.
So . . . will the court revisit the decision most beloved by news organizations? Well, while there may be three votes right now, note that despite Gorsuch’s and Thomas’ complaints, the court didn’t use Berisha to do so.
But, as the saying goes, the night is young.