Malice afterthought
Two Supreme Court justices want to revisit a landmark free-press decision
It has been five years since thencandidate Donald Trump called for America’s libel laws to be “open[ed] up” to make it easier for public figures to sue press outlets and win “lots of money”. No such loosening has transpired. But some judges and scholars are raising doubts about the nearly 60yearold precedent that sets a high bar for successful libel suits.
In July two Supreme Court justices, Neil Gorsuch and Clarence Thomas, took aim at New York Times Co. v Sullivan, the landmark ruling from 1964 that shielded newspapers from southern efforts to stifle coverage of brutality against civilrights protesters. In their eyes, the “actual malice” standard— which requires public figures alleging libel to prove the publisher printed a statement knowing it was false or without caring whether it was true—may now be damaging. The standard has “evolved from a high bar to recovery into an effective immunity from liability”, Justice Gorsuch wrote, and has become an “ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
Justice Thomas agreed that Sullivan has contributed to a “proliferation of falsehoods” by “insulat[ing]…those who perpetrate lies” from libel suits. Both see the decision and followon rulings as unmoored from the First Amendment. Laurence Silberman, a judge on the federal appellate court for the District of Columbia, wrote in March that Sullivan has facilitated the rise of something “very close to oneparty control” of the media. ”Nearly all television— network and cable,” he reckoned, “is a Democratic Party trumpet.”
This conservative backlash to Sullivan is curious. The original decision was unanimous, as was its reaffirmation in Hustler v Falwell, a case in 1988 involving a parody suggesting that Jerry Falwell had engaged in drunken outhouse sex with his mother. In 2019, too, Justice Samuel Alito spoke up forcefully for press freedom when he defended conservative bloggers being sued for libel by a climate scientist whose views they had attacked.
Yet imposing a greater risk of costly defamation verdicts would make it “nearly impossible for most news organisations to continue to report on the government with the scrutiny we’ve come to expect,” says Sonja West of the University of Georgia. Ted Boutrous, who is defending msnbc’s Rachel Maddow in a libel suit brought by