Overturn New York Times v. Sullivan
The actual malice doctrine was an unjustified innovation, a departure from an older, simpler, and more wholesome constitutional tradition.
This article was originally published on September 9, 2022 at The American Conservative.
New York Times v. Sullivan (1964) deserves a prominent place on the long list of modern Supreme Court decisions that ought to be overturned. It was, like so many rulings of the Warren Court, an instance of improper judicial activism, a meddling in the nation’s political life not required by the traditional and original understanding of the Constitution. Moreover, its doctrine is a source of ongoing, significant harm to our self-governing, rights-based republic.
Recently, Supreme Court justices Clarence Thomas and Neil Gorsuch have acknowledged the constitutional infirmity and baleful consequences of the New York Times ruling. Their colleagues should pluck up their courage, join with Thomas and Gorsuch, and correct this harmful error at the first suitable opportunity.
The case arose when L.B. Sullivan, a Montgomery city commissioner, brought a libel suit against the New York Times for publishing a political advertisement criticizing Alabama public officials for their opposition to the civil rights movement. In truth, Sullivan’s libel claim was weak and deserved to fail. The ad had not even mentioned him by name. The Court, therefore, did not err in reversing his initial victory in the courts of Alabama. It went badly wrong, however, in using the case to impose novel constitutional standards on the nation’s libel jurisprudence.
Writing for the Court, Justice William Brennan held that the First Amendment requires the libel claims of “public officials” to be treated differently from those of other Americans. In an ordinary libel proceeding, the plaintiff can succeed by showing that he is the victim of a defamatory falsehood. Henceforth, Brennan announced, public officials would have to meet a much higher standard. They would have to show not only that they were the victims of defamatory falsehood, but also that their defamers had acted with “actual malice”—that is, with knowledge that the claim they had published was false, or at least with “reckless disregard” for its truth or falsity.
Subsequent rulings extended the doctrine. Not only “public officials” but even “public figures”—anyone who had become prominent in relation to a public issue—would have to demonstrate actual malice to sue successfully for libel. The actual malice test, Brennan and his successors contended, was necessary to protect the freedom of the press promised by the Constitution. The test permits the press to get away with defamation in some cases, but, according to Brennan’s view, this is a price worth paying in order to sustain the vigorous public debate on which a healthy democracy depends.
Brennan’s New York Times doctrine was an unjustified innovation, a departure from an older, simpler, and more wholesome constitutional tradition regarding libel and the freedom of the press. According to this tradition, libel claims raised no constitutional problems, because libel was considered a form of unprotected speech outside the scope of the First Amendment. This view had been stated by the Supreme Court a generation earlier in Near v. Minnesota (1931), and had been reiterated in Chaplinsky v. New Hampshire in 1942—only two decades before New York Times v. Sullivan, and more than a decade after William Brennan had graduated from law school.
This traditional view that libel is not part of the freedom of the press reaches all the way back to the origins of our republic. In Dexter v. Spear (1825), Justice Joseph Story, acting as a circuit judge in federal district court, explained that “no man has a right to state of another that which is false and injurious to him,” and that consequently “no man has a right to give it wider and more mischievous range by publishing it in a newspaper. The liberty of speech, or of the press,” he continued, “has nothing to do with this subject.” These liberties “are not endangered by the punishment of libelous publications. The liberty of speech and the liberty of the press do not authorize malicious and injurious defamation. There can be no right in printers, any more than in other persons, to do wrong.” Story put forward the same view in his celebrated Commentaries on the Constitution of the United States, and a similar understanding was advanced by other legal commentators of high reputation, such as James Wilson and James Kent. According to the traditional understanding, then, libel was unprotected by the First Amendment, was actionable as an injury to reputation, and there were no special standards to provide greater protection to libelous speech made about “public figures.”
To be sure, Brennan tried to create a spurious impression of originalist legitimacy for his New York Times doctrine by invoking the Founding-era controversy over the Sedition Act of 1798. The Sedition Act punished the publication of any “false, scandalous, and malicious writings” against the government of the United States. Although the Act therefore made it impossible to punish anyone for any true criticism of the government, it was nevertheless opposed as unconstitutional by important figures such as Thomas Jefferson and James Madison. Brennan thus concluded that the history of the Founding teaches us that even false and libelous publications come within the First Amendment’s protections.
Brennan’s argument here is nothing more than a results-driven, selective, and therefore spurious originalism. After all, while Jefferson and Madison condemned the Sedition Act as unconstitutional, its constitutionality was defended by other equally weighty figures, such as John Adams (who signed it into law) and Alexander Hamilton. Indeed, Brennan’s approach here recalls nothing so much as the liberal justices’ equally tendentious treatment of the Establishment Clause, where certain Founders are cited in support of “strict separation” of church and state while ignoring other Founders with less convenient views.
New York Times v. Sullivan is a typical product of the Warren Court—probably the most activist and least originalist Court in the nation’s history. It deserves no deference from contemporary justices who claim to be guided by originalism. Nevertheless, even the staunchest originalist judges are often reluctant to revisit long-standing precedents. And New York Times v. Sullivan has stood for more than a half century. Therefore, it is not enough to show that the opinion was wrong. It is necessary to show that it is so damaging that it ought to be revisited.
In fact, the harm worked by the New York Times libel standard is considerable. The doctrine strikes at core aims of government according to America’s oldest and most venerable traditions. It erodes equality, undermines the security of rights, and damages the nation’s capacity for genuine self-government.
The “actual malice” standard allows the press to spread defamatory falsehoods, especially in the political realm, with near impunity. Under traditional libel standards, a plaintiff only had to show that the defamatory claims published about him were false. The New York Times’s “actual malice” standard requires public figures to do more—to show that the publisher acted with knowledge that the material printed was false, or acted with reckless disregard for its truth or falsity. Obviously, it is much easier to demonstrate that a claim is false and defamatory than to prove anything about the state of mind of the person who made the claim. In practice, it is nearly impossible to prove actual malice, and the standard simply invites journalists to be careless, or to feign carelessness, about the truth, since mere carelessness does not rise to the level of actual malice. Thus, for example, former vice-presidential candidate Sarah Palin recently lost a libel action against the New York Times, even though the Times admitted that its claims about her had been wrong, because she could not show that the Times had published with actual malice.
The New York Times doctrine thus vests the press with a status and power that is incompatible with America’s fundamental commitments. It violates our norms of legal equality by setting up inequalities among citizens. Ordinary Americans enjoy the full protection of the law’s traditional libel standards. In contrast, public figures—an expansive category that includes anyone who has achieved any public prominence—are burdened with the actual malice standard and therefore suffer greater threats to their reputations. But it is no more consistent with American principles to hold that the reputations of the famous should get less protection than those of ordinary people than to hold that the property of the rich should receive less protection than that of the middle class or the poor.
New York Times v. Sullivan is also inconsistent with the nation’s commitment to the security of individual rights. Defenders of the ruling might be tempted to contend that it strikes a prudent balance between competing claims. After all, it makes sense to sacrifice the reputational interests of public figures the better to protect the right to freedom of the press. This is not, however, the correct way to state the issue. Libel is not just an imposition on someone else’s interests but an attack on the rights of another person—specifically, on the right to one’s reputation.
This is the view that prevailed at the Founding and shaped the Founders’ understanding of the moral limits to the freedom of the press. The Founders had learned from William Blackstone, the great oracle of the English law, that “the security of his reputation or good name from the arts of detraction and slander, are rights to which even man is entitled by reason and natural justice.” Thus American legal commentators such as Wilson and Kent presented security of reputation as a right just as essential as, say, the right of property, and just as deserving of the law’s protection. And, as Justice Story rightly observed in Dexter v. Spear, “the dearest property which a man has, is often his good name and character.”
Finally, the culture of press impunity fostered by the New York Times case undermines our nation’s capacity for genuine self-government. In a representative democracy, the people are to set the basic direction of public policy by electing public officials with whom they agree on the major issues confronting the country. To perform this task well, the public needs accurate information about the candidates for public office. In a healthy democracy, the press would strive conscientiously to provide such information. It will, however, always be in the narrow interest of partisans—including a partisan press—to influence the outcomes of elections by misrepresenting the positions of candidates on controversial issues and by rendering the character of some candidates odious through defamation. New York Times v. Sullivan in fact encourages such behavior. This irresponsible behavior in turn tends to reduce self-government to a sham, because it deprives the voters of the opportunity to cast their ballots on the basis of genuine, informed consent. The promise of American democracy is government by consent. Consent, however, can be denied not only by force but also by fraud. Where voters are manipulated into rejecting a candidate by defamation, democracy itself has been in some measure defeated.
These evils are not required by the Constitution, nor are they a necessary consequence of a free society. They are, instead, the artificial product of the actual malice standard imposed by the Supreme Court in New York Times v. Sullivan. But what the Warren Court wrought the Roberts Court can correct. It should do so and restore to the nation the possibility of a public culture in which the press is free but not licentious and the public discourse is spirited but not abusive or mendacious.