Chapter 2: A Response to Justice Gorsuch

In his dissent from a denial of certiorari in Berisha v. Lawson,[1] Justice Neil Gorsuch calls for reconsideration of a cornerstone of American constitutional law. Despite the absence of credible evidence that New York Times Co. v. Sullivan’s[2] strong protections have degraded journalism, he raises a purported historical question: Does Sullivan’s rationale no longer hold because the media landscape that existed in 1964 has evolved (or, rather, devolved)?  The premises of that question, however, are incorrect, on both the facts and the law.

I. THE FACTS

With respect to the facts, Justice Gorsuch’s reasoning is marked by a series of fundamental misconceptions. First, he confuses one of our periodic historic turnovers in institutional media incumbency with an end to incumbency itself. Next, he conflates issues surrounding content distribution with those of content creation. Then he misapprehends the Court’s own role, suggesting the creation of new constitutional rules to address what is clearly a statutory and regulatory question surrounding how information delivery platforms should be treated. Along the way, Justice Gorsuch relies on a series of fundamentally inaccurate assumptions both about how modern journalism works and how those workings interact with the legal regime that began with Sullivan.

We take up each of these issues in turn.

A.        Media Concentration and Incumbency

Justice Gorsuch writes that, at the time of Sullivan, “comparatively large companies dominated the press,” while “today virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world.”[3] He bemoans the decline in viewership for broadcast network evening news shows, and their supplanting by the “rise of 24-hour cable news.”[4]

For someone of Justice Gorsuch’s generation,[5] such nostalgia may be inevitable, but let’s look at the facts. It is true that the audiences for the three broadcast network evening news shows have shrunk considerably since they peaked fifteen years after Sullivan, but those audiences remain considerably larger than viewership for any other source of national news. In fact, the audience for the three network evening broadcasts in 2020 (about 30 million) was roughly 25% higher than that for all daily newspapers in the country combined (24 million).[6] It is also true that cable news networks are more influential than they once were, especially in Washington DC, where the Court is located. But their average audience, of less than 4.5 million viewers in 2021 (when almost all news sources declined from 2020 levels),[7] was about one fifth of that for those network broadcast shows whose decline Justice Gorsuch mourns.

What about economic concentration? Today, two hedge funds control more than half of the daily newspapers in the country.[8] This far exceeds any level of concentration at the time of Sullivan. In 1964, two of the three broadcast networks were independent companies; today, they are controlled by huge entertainment enterprises, Comcast, Walt Disney and Viacom. The cable networks are themselves arms of enormous concerns, AT&T, Comcast (again) and the Fox Corporation.

Among newspapers, as the transition to online distribution unfolds—the vast majority of “newspaper” readers now consume the content online—the market leaders nationally are the same as half a century ago, the New York Times, Wall Street Journal and Washington Post.

What to make of all of this? Yes, things are changing with the rise of digital media, just as they changed with the overtaking of radio by television in the fifteen years before Sullivan. But just as the leading radio networks, NBC Red, CBS and NBC Blue, gave way to the television networks NBC, CBS and ABC (the new name of NBC Blue after its spin-off under FCC mandate), less has changed than it may seem. It is also true, of course, that upstart news organizations have arisen in the current age, ranging from BuzzFeed (winner of a Pulitzer Prize in 2021) to our own ProPublica (winner of six Pulitzers to date). But upstarts are not a novelty of the digital era. The Pulitzer and Hearst newspapers played such a role in the late 19th Century, as did Time magazine and The New Yorker in the 1920s, Life in 1930s, and USA Today and CNN in the 1980s.

B.         Content Distribution v. Content Creation

Justice Gorsuch’s most significant misapprehension, in this part of his analysis, comes when he posits that “virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world.”[9] That is true in theory, and we all know of things that have gone viral from previously unknown creators, but it is extraordinarily unusual in practice. Justice Gorsuch asserts that we live “in a world in which everyone carries a soapbox in their hands,”[10] but the median U.S. Twitter user, rather remarkably, has 25 followers, hardly global reach.[11] Of the individuals with the 25 largest Twitter followings, not one traces their fame to the Internet itself; rather, two come from politics (President Obama and Indian Prime Minister Modi), two from business (Elon Musk and Bill Gates), four from sports, six from film and television, and nearly half from music.[12] In theory, anyone can reach everyone. In practice, almost no one does.[13]

C.         Information Delivery Platforms and Section 230

Next, Justice Gorsuch decries a real problem, but one which seems almost entirely the province of Congress, not the Court, to address. He writes that “our new media environment also facilitates the spread of disinformation” and claims that disinformation “has become a ‘profitable’ business.”[14]

The actors in question here are not the press, however, but the technology platforms, most notably Facebook and Google, but also Twitter and a few others. The platforms, from the perspective of the press, are both distributors of their content and competitors (hugely successful, well past the point of oligopolization) for advertising. But these companies are not themselves in the news business. Indeed, there is significant indication that Facebook, the market leader, has sought in recent years to limit its redistribution of news altogether.[15]

Disinformation and misinformation are surely important public policy problems, and the platforms’ role in this issue is, at the very least, worthy of profound concern. The losses from vaccine hesitancy provide just the latest and most lethal illustration. But there is already federal legislation in this area—Section 230 of the Communications Decency Act[16]—and a robust debate about whether it should be amended. That seems self-evidently a debate in which the Court has no role to play.  More on this in the pages that follow.

D.         The Economics of Reporting the News and Modern Defamation Litigation

Finally, Justice Gorsuch misapprehends how news organizations actually operate under Sullivan’s legal regime. He claims that, in 1964, “many major media outlets employed fact-checkers and editors” because that encouraged consumers to pay more for their news.[17] Today, by contrast, he asserts, “[i]t seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy”—to the point where “ignorance is bliss.”[18] This is not only faulty history, it reflects a fundamental misconception of contemporary journalism practice.

First, the history: Fact-checking independent of reporting (that is, as a separate job description) has always been and remains virtually unknown at newspapers, as well as in radio (and, with one or two exceptions) television news. Fact-checkers have long been employed by a few magazines, and remain in place at most of those.[19] Digital news organizations, which, like newspapers and unlike magazines, face quicker deadlines, generally adopted the newspaper practice of placing the responsibility for fact-checking on reporters.

Even more ahistorical are Justice Gorsuch’s assumptions about the economics of news publishing in the time of Sullivan and today. In that earlier era, comparatively little of news publishers’ revenues came directly from consumers, with the bulk of it coming from advertisers. This was even more true of magazines (the bastion of fact-checking, as noted above) than it was for newspapers. For broadcast radio and television news, precisely none of the revenues came directly from consumers. This, of course, has not stopped newspapers from revealing deep and important truths essential to democratic accountability, from the Pentagon Papers to Watergate to secret governmental collection of personal data.

Today, in the opposite of the trend that Justice Gorsuch posits, a substantially larger part—in many cases, the majority—of revenues come directly from readers and viewers. The relative recent prosperity of the New York Times, Washington Post and Wall Street Journal stems from the fact that all have been successful in selling subscriptions, not only in print but also, and in much greater numbers, online. National cable television news is enormously profitable, and not because of advertising nearly so much as because of the fees these channels charge to cable providers, which are passed along to subscribers. Newer digital nonprofit news organizations depend almost entirely on donations from readers, and receive almost no advertising revenues. Even the more successful magazines increasingly depend on subscription revenue, still in print but also in growing measure online.

Justice Gorsuch’s fear that “ignorance is bliss” has become the “optimal legal strategy” in publishing is itself, to borrow his description, ignorant of both the practice in newsrooms and, perhaps more surprisingly, how litigation under the Sullivan regime actually works.

It is true that the legal risk to the press in the last 58 years is substantially lower than it was in the previous era. But the economic fortunes of the press are at a much lower ebb than previously. Numerous newspapers and magazines have failed entirely. Nearly all legacy publications that have not failed have seen dramatic declines in profit margins (and often absolute revenues), and have felt compelled to cut back on the resources devoted to newsgathering.

In most cases, these same economic pressures have curtailed investment in all sorts of enterprise (i.e., original) reporting, especially investigative work. To the extent this gap has been filled—and it has been only partially—it has been by newer nonprofits and the leading newspapers whose business model, as noted above, depends on the trust of consumer subscribers/donors. In these cases, the dynamic that Justice Gorsuch incorrectly assumes applied in days gone by—that “the public gain[s] greater confidence that what they read [is] true” and are thus willing to “pay more for the information”[20]—is actively at work today.

In the realm of litigation, the “optimal legal strategy” for publishers who cannot afford to be sued is, and has been, to be less aggressive in coverage. For those who still can afford it, i.e., can afford rapidly rising libel insurance rates and deductibles, the optimal strategy is to practice journalism in a way that minimizes the combined cost of insurance and litigation itself.

What sort of practices achieve this aim?

First, of course, is not to make mistakes of fact. Even entirely meritless litigation—the sort that does not survive a motion to dismiss—is expensive, in both money for attorneys’ fees and in lost editorial time to help prepare the response. The easiest way to avoid such lawsuits is to publish accurate stories, and to provide evidence to readers in stories themselves on the most contentious elements of those stories. This is the farthest thing from “ignorance is bliss.” Above and beyond all of the lawsuits avoided from those who are angry that their misdeeds have been carefully reported, it is worth noting that, in a recent survey of major media companies, nearly 80% of news media defamation actions terminated at the motion to dismiss stage were resolved in favor of defendants on grounds other than failure to state a plausible claim of actual malice, including the “substantial truth” of the alleged defamation.[21]

Regrettably, even substantially accurate stories remain vulnerable to a claim that survives a motion to dismiss. In the same study, 35% of all successful summary judgment motions were granted, at least in part, on the ground that the alleged defamation was either substantially true or not provably false.  An earlier, 26-year study of more than 1,400 news media defamation actions dismissed at the summary judgment stage revealed that, in nearly 400 cases, the claims were found to be either substantially true or not provably false following discovery.[22] We should all be able to agree that such cases constitute an enormous burden on the press in terms of cost and time, a cost to both First Amendment values and the court system incurred in the name of providing an avenue for the vindication of reputations unjustifiably diminished.

Of course, mistakes will occur so long as journalism is being practiced by humans. In some circumstances, cases arising from such mistakes will result in a consideration of fault under any legal test, whether it is as strict as actual malice or as loose as mere negligence. How should newsrooms behave, given their awareness of this? How do they actually do so?

Justice Gorsuch posits that the optimal legal strategy is just to wing it, to publish defamatory articles in ignorance of the facts—because “ignorance is bliss.” Then, with citation only to one secondary source from a non-journalist, he concludes that journalists in fact behave this way.[23] Having worked with four leading newsrooms—at the Wall Street Journal, the New York Times, NBC News and ProPublica— for more than a combined 25 years, we can say definitively that neither of the authors has ever seen this happen, not even once.

Why? Because, in addition to being journalistically unethical and unprofessional, such behavior would be tactically unwise from a legal perspective.

Once a motion to dismiss has been ruled out or denied, the key objective in the defense of modern media defamation litigation is to prevail on a motion for summary judgment. On such motions, affirmative, undisputed evidence of lack of fault is often critical,[24] and the pre-publication process has usually been designed, frequently with significant input from newsroom counsel, to yield such evidence. Indeed, this is precisely why pre-publication review of sensitive stories by newsroom counsel has so significantly expanded over the years.  The membership of the industry’s leading committee for counsel whose work includes a focus on pre-publication/pre-broadcast review has tripled in this century to now include more than 100 members, even as the industry itself has notably contracted.[25] More than 170 attorneys attended the last pre-pandemic conference on this subject.

Beyond this, if the “ignorance is bliss” strategy that Justice Gorsuch posits is being followed, it is a big secret. Having for years attended many of the three leading annual conferences for press lawyers, one organized by the American Bar Association, another by the Practicing Law Institute, the third by MLRC, and having checked with the organizers of all of them, this “strategy” has never been mentioned, much less advocated, at any of them. Nor is it referenced in any of the leading treatises on the subject, the most notable of which is authored by a judge of the Second Circuit Court of Appeals.[26]

Finally, the published standards of leading news organizations are to the contrary.[27]  And when these standards are not met, i.e., when published stories fall short of those standards, the extensive self-scrutiny news organizations have undertaken is the farthest thing from “ignorance is bliss.”[28]  In short, the journalistic world that Justice Gorsuch fears, of legions of disparate reporters letting falsehoods rip without bothering to verify their reporting while media barons count their ad revenue dollars, simply does not exist.

II. THE LAW

Beyond Justice Gorsuch’s faulty factual assumptions is an even more fundamental misconception:  Sullivan’s protections were not, as he appears to assume, rooted by the Court in a utilitarian analysis of the mid-1960s world of institutional media. They were and remain grounded firmly in the First Amendment itself.

A.        Sullivan, Seditious Libel and the Common Law

This is because the Sullivan and subsequent courts have understood the dangers of the English common law of libel to American democratic freedoms. Under that common law, and the criminal libel laws that accompanied them, courts policed perceived stains on the reputations of powerful people and the State, with probing and informed debate about their conduct deemed secondary to their sensibilities.[29] As the Court explained just three years after Sullivan:

The history of libel law leaves little doubt that it originated in soil entirely different from that which nurtured these constitutional values. Early libel was primarily a criminal remedy, the function of which was to make punishable any writing which tended to bring into disrepute the state, established religion, or any individual likely to be provoked to a breach of the peace because of the words. Truth was no defense in such actions and while a proof of truth might prevent recovery in a civil action, this limitation is more readily explained as a manifestation of judicial reluctance to enrich an undeserving plaintiff than by the supposition that the defendant was protected by the truth of the publication. The same truthful statement might be the basis of a criminal libel action.[30]

The Sullivan Court knew such a regime would be crippling to the self-government and open democratic discussion that defined the American experiment – especially when applied to public officials. This was a realization born of bitter experience, not judicial whimsy. As the Court explained, the lure of control over private speech proved seductive even to the founding generation. The Sedition Act of 1798 criminalized defaming the party in power or stirring contempt for it among the general public. 

Thankfully, while the Sedition Act was of a piece with the traditional treatment of libel at common law, it nauseated many leading Americans. Implementers repudiated their actions; those convicted were pardoned. There was, instead, “broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.”[31] Indeed, Justice Gorsuch seems to concede as much. Where Justice Thomas apparently longs for a return to a common law world of libel untouched by the First Amendment (and, presumably, would sustain a new Sedition Act), Justice Gorsuch appears to recognize this as a bridge too far.

B.        Definitional Balancing and the First Amendment

Faced with the obvious deficiencies of a common law inherently hostile to democratic self-government and the First Amendment, the Court in Sullivan did what the Supreme Court has done throughout the century since modern First Amendment jurisprudence began to take shape: ask what the First Amendment, not previous historical practice, allows. Here, the Court’s path was well-worn. “Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations.  It must be measured by standards that satisfy the First Amendment.”[32]  In other words, while “libelous” speech, like “obscene” speech, speech that incites “imminent lawless action,” or “fighting words,” falls outside of the First Amendment’s protections “because they are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality,”[33] the definition of each such category of unprotected expression is derived from the First Amendment itself.

Thus, in Sullivan, the Court undertook to strike the requisite definitional balance, recognizing at the outset that the contours of punishable libel at common law – a cause of action where falsity and injury to reputation are presumed and liability is imposed with fault – must be more carefully circumscribed if it is to co-exist with the First Amendment.  As the Court explained two decades after Sullivan, with respect to each category of unprotected speech, it is the duty of the judicial branch to define “the limits of the unprotected category” through “evaluation of special facts that been deemed to have constitutional significance.”[34]  What then, the Court asked in Sullivan, is a First Amendment-compatible definition of constitutionally unprotected “libel”?

As to truth, the traditional common law approach placed the burden of proving it on the publisher, forcing it to prove truth in all its particulars, no matter the subject. In the criminal libel context, truth could be no defense at all, with conviction subject to the arbitrary predilections of judges and juries as to what society should accept (a particular challenge to dissidents and minorities). In a self-governing democracy, the Court recognized, “constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.’”[35] Anything less would establish a presumption that “the governed must not criticize their governors.”[36] Silence, not free-wheeling democratic debate, would inevitably follow such a rule. That, of course, is what was happening in Alabama at the time of Sullivan and, as is demonstrated in Chapter 4 infra, it continues to be the likely motivation for a disturbing number of defamation actions to this day. The English may have made their peace with such a system (although, as explained in Chapter 5 infra, even the United Kingdom continues to move away from the common law regime), but the First Amendment forbade it.

Nor, the Court explained, did the First Amendment intend to protect from criticism by the citizenry the delicate sensibilities of its leaders. Drawing on prior cases, the Court explained that “criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.”[37] While Justice Gorsuch worries that sharp-elbowed discourse discourages “people of goodwill” “from risking even the slightest step toward public life,”[38] the Sullivan Court recognized that democracies require more of those who aspire to lead such a life and the public trust those roles must uphold.[39]  As Judge Bork, himself no stranger to the sting of critical scrutiny, explained, “[t]hose who step into areas of public dispute, who choose the pleasures and distractions of controversy, must be willing to bear criticism, disparagement and even wounding assessments.”[40]   

Most critically, the Court recognized in Sullivan,the First Amendment demands protection for public criticism honestly offered. Allowing for liability without knowledge of error in an area as essential as speech about public officialdom would, inevitably, lead to intolerable self-censorship.  Just as the Court had concluded that a bookseller could not be held liable for innocently selling obscene material,[41] so too must government critics be free of liability when their statements are not published with knowledge of their probable falsity—i.e., when it comes to speech about public officials, the definition of the kind of “libel” that falls outside the First Amendment’s protection must stop at the “calculated falsehood.”[42] Put differently, if the definition of unprotected “libel” were expanded to include innocent misstatements about public officials, “would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone.’”[43]

The actual malice standard articulated in Sullivan thus rests on constitutional first principles, not on the Court’s assessment of the interstices of the technological and economic dynamics governing the mass media of 1964.  To be sure, the Court noted the economic impact that the multiple libel lawsuits then pending against the Times in Alabama was certain to have on the “uninhibited, robust, and wide-open” debate about public issues that the First Amendment exists to safeguard.[44]  Still, one will search Justice Brennan’s opinion for the Court in vain for any discussion of the extent of media concentration, the role of fact checking, or the economic incentives encouraging accuracy that Justice Gorsuch now describes as justification for creation of the actual malice rule.  This is not surprising since Sullivan itself concerned an advertisement that had nothing whatever to do with the Times’ journalism or its editorial process.

Simply put, Sullivan is made of more enduring stuff.  The actual malice standard it created is the end-product of an exercise in definitional balancing that was, and remains, essential to our First Amendment jurisprudence.  The fears that animated rejection of the Sedition Act are the same ones that undergird the actual malice standard itself. That does not change because individuals can now tweet. Justice Kennedy, in a landmark First Amendment holding not long ago, reminded us that constitutional lines cannot be so casually reshaped. “Courts, too, are bound by the First Amendment. We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.”[45]   

C.        Sullivan as a Foundational Principle of First Amendment Law

Sullivan remains the bedrock of American free speech and free press law because it announced a rule that upholds the kind of society the First Amendment sought to protect, one in which citizens remain free to scrutinize their elected leaders as well as those who otherwise enter the arena and attempt influence public life. As Chief Justice Warren wrote in Curtis Publishing Co. v. Butts:

Increasingly in this country, the distinctions between governmental and private sectors are blurred. Since the depression of the 1930’s and World War II there has been a rapid fusion of economic and political power, a merging of science, industry, and government, and a high degree of interaction between the intellectual, governmental, and business worlds. Depression, war, international tensions, national and international markets, and the surging growth of science and technology have precipitated national and international problems that demand national and international solutions. While these trends and events have occasioned a consolidation of governmental power, power has also become much more organized in what we have commonly considered to be the private sector. In many situations, policy determinations which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.[46]

Beyond the obvious impact that judicial rejection of Sullivan would have on the law of defamation and its documented history as a tool to suppress public debate, its elimination from our constitutional jurisprudence would have other less obvious, but equally worrisome consequences. As noted, the Court in Sullivan undertook the same exercise in definitional balancing as it did (and continues to employ) in other First Amendment cases, defining on a categorical basis what speech falls outside of the First Amendment’s protections.  By the same token, it has repeatedly emphasized that, if the speech at issue in a given case does not fall within the definition of one of the recognized unprotected categories, it is fully protected and cannot be subject to either criminal or civil sanction.

In Snyder v. Phelps, for example, the Court held that even truly awful speech – vile anti-gay slurs made outside of a soldier’s funeral – could not support a finding of intentional infliction of emotional distress (IIED).[47] Why? Because, as vile as it was, the speech at issue addressed a topic of public concern and did not fall within any recognized category of unprotected expression.  As the Court explained, “[s]uch speech cannot be restricted simply because it is upsetting or arouses contempt.”[48] And for an IIED claim to succeed in such circumstances, a jury (and ultimately a reviewing court) would have to find the challenged speech to be “outrageous,” a “highly malleable standard with ‘an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.”[49]

Sound familiar? It is the same reasoning that caused the Court to reject ad hoc balancing in favor of the categorical approach exemplified by Sullivan, led it to limit the categories of unprotected expression largely to those catalogued in Chaplinsky, and motivated the Court in Sullivan to reject the common law definition of actionable libel in favor of a formulation that honored the “central meaning” of the First Amendment.[50] The decision in Snyder was 8-1 (and, of course, cited Sullivan).

Similar reasoning was at play in United States v. Stevens, where the Court assessed whether the government could criminalize the disgusting practice of publishing videos showing animal cruelty.[51] There again the constitutional principles that mandated the result in Sullivan applied, whatever polite society may prefer. Just because the Government says it will use its powers wisely (something the progenitors of the Sedition Act surely thought), such assurances do not override the First Amendment’s protections. In the words of Chief Justice Roberts, “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”[52]

Then there is United States v. Alvarez, which invalidated a federal statute that criminalized falsely claiming to have been awarded a military medal.[53] What did the First Amendment have to say about such speech, even though it was false and dishonored those who had actually earned such recognition? “The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. . . . And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.”[54]

The Court went on: “The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradition. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.”[55]  All of this, the Court recognized, flowed directly from Sullivan and its recognition that “falsity alone may not suffice to bring the speech outside the First Amendment;” even where the government’s interest is the time-honored one of protecting individual reputation, the challenged statement “must be a knowing and reckless falsehood.”[56]

So “central” is the First Amendment doctrine articulated in Sullivan that Chief Justice Rehnquist, writing for a unanimous Court, imported its actual malice standard to reject a claim against a magazine publisher for a parody depicting a prominent religious figure “engaged in a drunken incestuous rendezvous with his mother in an outhouse.”[57]  Such speech, the Court determined, is simply not so offensive to democratic norms that it should be excepted from the First Amendment. Emphasizing its reliance on (and explicit reaffirmation of) Sullivan,the unanimous Court minced no words: “This is not merely a ‘blind application’ of the New York Times standard, it reflects our considered judgment that such a standard is necessary to give adequate ‘breathing space’ to the freedoms protected by the First Amendment.”[58]

D.        Sullivan and Section 230 Revisited

Beyond all of this, as noted above, is the fact that Justice Gorsuch’s call to revisit Sullivan rests almost entirely on concerns that have little to do with defamation law.  He rightly worries, for example, that our online world “facilitates the spread of disinformation” and that a “study of one social network reportedly found that falsehood and rumor dominated truth by every metric, reaching more people, penetrating deeper … and doing so more quickly than accurate statements.”[59] Under Sullivan, of course, intentional falsehoods remain subject to defamation liability.

But the law of defamation is not Justice Gorsuch’s actual concern. Rather, his stated focus is on the viral spread of misinformation on social media platforms. To repeat, a change in defamation law would do nothing at all to change information flows on Twitter, Facebook or any other platform. That’s because such platforms are immune from suit under Section 230 of the Communications Decency Act.

Of course, there is nothing at all stopping anyone from suing Twitter posters who make false, defamatory claims about them.[60] Justice Gorsuch appears to assume that courts are not flooded with meritorious libel suits brought by such persons because of Sullivan’s iconic actual malice standard. There is, however, simply no evidence to support such a proposition. Much more likely is the fact that the mass of intentionally cruel falsehoods on the Internet are simply not worth pursuing on an individual basis, precisely because they were not published by news organizations. Perhaps the posters have no substantial assets worth recovering. Perhaps their individual reach is way too small to register. Perhaps they are far more easily combatted with a social media post of one’s own.

At any rate, the entities potentially worth pursuing – the social media companies – depend not at all on Sullivan for their litigation free pass, but on Section 230. One can reasonably bemoan the wisdom of this legislative choice but such discontent is properly aimed at Congress, not Sullivan.

There is, however, one segment of the body politic that would suffer greatly if Sullivan were to be overruled. And it is the same target that was under assault back when the case was decided: responsible journalists. Back then, it was the New York Times that was chief among the subjects of coordinated attempts to deter critical reporting. Such political attacks against critical reporting were, and remain, the motivating animus behind calls to “loosen the libel laws,” whether such calls come from former presidents or members of the judiciary.[61] An avalanche of lawsuits isn’t coming for random posters on Twitter or Facebook.

If, as the Supreme Court has long emphasized, robust debate and a free press are critical elements of our democracy, it makes no sense to demolish the strongest pillar of their protection.[62]

III. CONCLUSION

Justice Gorsuch laudably seeks rules of law that create a better world, one where committed citizens dedicated to the betterment of the common good debate ideas with sincerity, honesty, and rigor.  But the Framers knew that the path to this ideal is not smooth. New York Times Co. v. Sullivan stands as a guardian of those who contribute to our public discourse – and who hold the powerful accountable – with, at the least, honestly held beliefs. It has stood, reaffirmed again and again, as one of the clearest legal commitments to the American experiment. Perhaps this, then, is a moment to reiterate, as Learned Hand did, that our constitutional framework “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.”[63]

Justice Gorsuch has previously recognized the central role that Sullivan plays in our First Amendment jurisprudence. At his confirmation hearing, he called it a “landmark decision,” one “that has been the law of the land for, gosh, 50, 60 years.”[64] When he sat on a federal court of appeals, he faithfully applied it and, based on his own words in the opinion he wrote in that case, Bustos v. A & E Television Networks,[65] he did so not simply because he was bound to honor Supreme Court precedent, but because he recognized the necessary role the First Amendment plays in unmooring the laws of England from the “contemporary American law” of defamation.[66] 

That was true when the Justice wrote it in 2011, and it remains true today. Whatever the predilections of the American Puritans and their English contemporaries, the First Amendment safeguards robust public debate. In other words, there was a time and place where one could find the kind of limitations on press freedoms that a decision to overrule Sullivan would portend. They are (or were) in England, in centuries past. Our forebears made a revolution to forge a different path.

---

[1] 141 S. Ct. 2424 (2021) (Gorsuch, J., dissenting from denial of certiorari).

[2] 376 U.S. 254 (1964).

[3] 141 S. Ct.at 2427. 

[4] Id.

[5] He is a decade younger than one of the current authors.

[6] Pew Research Center, Network News Fact Sheet, July 13, 2021; Pew Research Center, Newspapers Fact Sheet, June 29, 2021.

[7] Id., Cable News Fact Sheet, July 13, 2021.

[8] Coppins, A Secretive Hedge Fund is Gutting Newsrooms: Inside Alden Global Capital, The Atlantic, Oct. 14, 2021.

[9]  141 S. Ct. at 2427.

[10] Id.

[11] Pew Research Center, Key takeaways from our new study of how Americans use Twitter, April 24, 2019.

[12] Socialblade.com/twitter/top/100, retrieved Jan. 18,2022.

[13] Beyond that, a recent survey indicates that one quarter of Twitter users account for 97% of all traffic on the platform, the remaining 75% for just 3% of all tweets. Pew Research Center, The Behavior and Attitudes of U.S. Adults on Twitter, Nov. 15, 2021.  Even within this group of heavy users, the average tweeter received just 37 “likes” and one retweet from 65 tweets per month.  Id.

[14] 141 S. Ct. at 2427.

[15] See, e.g., Castillo, Zuckerberg tells Congress Facebook is not a media company: ‘I consider us to be a technology company,’ CNBC, April 11, 2018. 

[16] 47 U.S.C. § 230.

[17] 141 S. Ct. at 2427-28.

[18] Id. at 2428 (emphasis in original).

[19] See Fabry, Here’s How the First Fact-Checkers Were Able to Do Their Jobs Before the Internet, Time, Aug. 24, 2017.

[20] 141 S. Ct. at 2428.

[21] See Chap. 3 infra, Appendix II, Table I1 at 132 (in which only 19 of 87 (22%) defense wins on motions to dismiss were at least in part on actual malice grounds). The referenced survey, conducted by the Media Law Resource Center (“MLRC”), reflects the recent litigation experience of 16 leading news organizations, including newspapers, wire services, public radio, local television stations and television networks. See id., Section C.2.a. at 110.

[22] See Chap. 3 infra, Appendix II, Table I1 at 132. See also id. Section C.2.b. at 111-13 (motions granted based on the common law defenses of, inter alia, substantial truth, the fair report privilege, the “of and concerning” requirement, and opinion collectively responsible for far more defense victories than actual malice); Media Law Resource Center, 2007 Summary Judgment Study, MLRC Bull., Sept. 2007 at 18, table 2, 41, table 16. The last referenced study covered the years 1980-2006, beginning 15 years into the age of Sullivan. A total of 1,469 cases were dismissed after summary judgment motions. Of these, fewer than 500 cases (496) were decided in favor of defendants, in whole or in part, on grounds of actual malice, while motions were granted, in whole or in part, on the basis of substantial truth (232), “falsity” (135) or not being provably false (29), which together sum to 396 cases. Other leading grounds for granting motions were lack of defamatory meaning (225) and opinion (224). Some cases were decided on multiple grounds.

An earlier, smaller study of cases decided between 1976 (a dozen years after Sullivan) and 1979 found that a narrow majority (51%) of 83 reported appellate decisions in favor of news media defendants were decided on various state law, rather than federal constitutional, grounds. Franklin, Winners, Losers and Why: A Study of Defamation Litigation, 1980 Am. Bar Res. Found. J. 455, 493, table 23.

[23] 141 S. Ct. at 2428 (citing Logan, Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan, 81 Ohio St. L.J. 759 (2020)).

[24] This has been particularly so in the wake of the Supreme Court’s decisions in cases like Herbert v. Lando, 441 U.S. 153 (1979), and Harte Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), in which it not only authorized broad discovery into the defendant’s newsgathering and editorial process for the purpose, in significant part, of amassing sufficient evidence to create disputed issues of material fact sufficient to survive a summary judgment motion and secure a trial on the issue of actual malice, but also emphasized that such evidence will typically be circumstantial, especially since it is the rare case in which the defendant admits that it published despite entertaining serious doubts about the truth of its reporting.  See441 U.S. at 170 (“plaintiffs will rarely be successful in proving awareness of falsity from the mouth of the defendant himself”). Thus, judicial consideration of summary judgment motions raising the actual malice issue typically require detailed consideration of the editorial process, as illuminated through discovery, rendering it all the more important for a defendant to be able to demonstrate—through undisputed evidence—that it did not publish the challenged statements with the necessary reckless disregard for their truth.  Compare, e.g.,Eramo v. Rolling Stone, LLC, 209 F. Supp. 3d 862, 872-75 (E.D. Va. 2016) (judicial review of evidence amassed through discovery and documenting defendants’ editorial process revealed disputed issues of material fact with respect to actual malice warranting trial) withHatfill v. N.Y. Times Co., 532 F.3d 312, 324-25 (4th Cir. 2008)(summary judgment granted because undisputed evidence of editorial process demonstrated that plaintiff could not prove actual malice).        

[25] See resources here.

[26] SeeSack, Sack on Defamation: Libel, Slander and Related Problems (5th ed. 2021); see alsoSmolla, Law of Defamation (2d ed. 2021); Sanford, Libel and Privacy (2d ed. 1999). 

[27] See, e.g., Society of Professional Journalists Code of Ethics; New York Times Newsroom Integrity Statement (1999); ProPublica Code of Ethics (“We strive to identify all the sources of our information, shielding them with anonymity only when they insist upon it and when they provide vital information — not opinion or speculation; when there is no other way to obtain that information; and when we know the source is knowledgeable and reliable. To the extent that we can, we identify in our stories any important bias such a source may have. If the story hinges on documents, as opposed to interviews, we describe how the documents were obtained, at least to the extent possible. We do not say that a person declined comment when he or she is already quoted anonymously.”).

[28] See, e.g., Coronel, Coll & Kravitz, Rolling Stone’s Investigation: “A Failure That Was Avoidable,” Colum. Journ. Rev., April 5, 2015; Barry, et al., Correcting the Record: Times Reporter Who Resigned Leaves Long Trail of Deception, N.Y. Times, May 11, 2003; Benjamin, CBS Reports The Uncounted Enemy: A Vietnam Deception: An Examination, CBS News, 1984.

[29] Indeed, as a general matter, an animating principle of the defamation tort at common law was that one simply should not make statements critical of others. An important companion principle was that people were the subjects of the state (which remains true in the United Kingdom today where, at least as a technical matter, the people are subjects of the Crown.). Put differently, the common law of libel proceeded from the fundamental proposition that the Government is the master and the citizen is the subject.  At its core, the American Revolution was fought to invert this relationship—in the United States, Government is the servant of the citizen master, a concept radically inconsistent with the premises of the common law tort and accompanying criminal law of seditious libel. See Post, The Social Foundations of Defamation Law: Reputation and the Constitution, 74 Calif. L. Rev. 691, 723 (1986) (“In America,” the Court recognized in Sullivan, “government officials are ‘public servants,’ and the people are their masters.”) (“Post I”); see also Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L Rev. 605 (1990).  As the Supreme Court has repeatedly emphasized, in both Sullivan and its progeny, if a citizen of the United States criticizes governmental officials, that citizen is not attacking the master, but exercising the ideal of self-government.  See, e.g., Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (“speech concerning public affairs is more than self-expression; it is the essence of self-government”). Thus, the “essential role” of the First Amendment, as articulated in Sullivan,was to require alignment of the common law with the concept of representative self-government in a manner that accurately reflected the inverted relationship the Constitution created between the citizen and the state.  Post I, supra, at 723 (quoting Kalven, The New York Times Case, A Note on the “Central Meaning” of the First Amendment¸ 1964 Sup. Ct. Rev. 191, 204). Professor Meiklejohn famously said that Sullivan was “‘an occasion for dancing in the streets’” because it accomplished precisely that.  See Kalven, supra, at 221 n.125 (quoting Professor Meiklejohn).  

[30] Curtis Publ’g Co. v. Butts, 388 U.S. 130, 151 (1967).

[31] 376 U.S. at 276.

[32] Id. at 269.

[33] Chaplinsky, 315 U.S. at 572.

[34] Bose Corp. v. Consumers Union, 466 U.S. 485, 505 (1984).  SeeFrantz, The First Amendment in the Balance, 71 Yale L.J. 1424, 1434-35 (1962) (“Deciding the scope to be accorded a particular constitutional freedom is different from deciding whether the interest of a particular litigant in freely expressing views which the judge may consider loathsome, dangerous or ridiculous is outweighed by society’s interest”); Nimmer, The Right to Speak from Times to Time; First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 Calif. L. Rev. 935, 942 (1968) (Sullivan “points the way to the employment of the balancing process on the definitional rather than the litigation or ad hoc level”—i.e., “the Court employs balancing not for the purpose of determining which litigant deserves to prevail in the particular case, but only for the purpose of defining which forms of speech are to be regarded as ‘speech’ within the meaning of the First Amendment”).  

[35] Sullivan, 376 U.S. at 271 (quotingNAACP v. Button, 371 U.S. 415, 445 (1963)).

[36] 376 U.S. at 271.

[37] Id. at 273 (citing Pennekamp v. Florida, 328 U.S. 331, 342 (1946); Bridges v. California, 314 U.S. 252 (1941); Craig v. Harney, 331 U.S. 367, 376 (1947)).

[38] 141 S. Ct. at 2429.

[39] 376 U.S. at 279.

[40] Ollman v. Evans, 750 F.2d 970, 993 (D.C. Cir 1984) (Bork, J. concurring); see id.:

Perhaps it would be better if disputation were conducted in measured phrases and calibrated assessments, and with strict avoidance of the ad hominem; better, that is, if the opinion and editorial pages of the public press were modeled on The Federalist Papers.  But that is not the world in which we live, ever have lived, or are ever likely to know, and the law of the First Amendment must not try to make public dispute safe and comfortable for all participants.  That would only stifle the debate.    

[41] 376 U.S. at 278-79 (quoting Smith v. California, 361 U.S. 147, 153-54 (1959)).

[42] Garrison, 379 U.S. at 79.

[43] 376 U.S. at 279 (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)).

[44] 376 U.S. at 270.

[45] Citizens United v. FEC, 558 U.S. 310, 326 (2010).

[46] 388 U.S. at 163–64.

[47] 562 U.S. 443 (2011).

[48] Id. at 458.

[49] Id.

[50]Sullivan, 376 U.S. at 275.  SeeKalven, supra, at 194 (Sullivan “may prove to be the best and most important” decision the Supreme Court “has ever produced in the realm of freedom of speech”). 

[51]559 U.S. 460 (2010).

[52] Id. at 480.

[53] 567 U.S. 709 (2012).

[54] Id. at 728.

[55] Id. at 729.

[56] Id. at 729 (citing Sullivan, 376 U.S. at 280).

[57] Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 48 (1988).

[58] Id. See alsoBartnicki v. Vopper, 532 U.S. 514, 535 (2001) (“It was the overriding importance of that commitment [robust public debate] that supported our holding [in Sullivan] that neither factual error nor defamatory content, nor a combination of the two, sufficed to remove the First Amendment shield from criticism of official conduct. We think it clear that parallel reasoning requires the conclusion that a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”); National Review, Inc. v. Mann, 140 S. Ct. 344, 346 (2019) (Alito, J., dissenting from denial of certiorari) (“The constitutional guarantee of freedom of expression serves many purposes, but its most important role is protection of robust and uninhibited debate on important political and social issues.  If citizens cannot speak freely and without fear about the most important issues of the day, real self-government is not possible.”) (citing Snyder v. Phelps, 562 U.S. 443, 451-52 (2011); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)). 

[59] 141 S. Ct. at 2427.

[60] In fact, such suits can be quite successful.  See, e.g., Donahue, Cardi B Wins Million-Dollar Verdict Against ‘Malicious’ YouTuber, Billboard, Jan. 24, 2022.

[61] See, e.g.,Gold, Donald Trump: We’re going to ‘open up’ libel laws, Politico, Feb. 26, 2016; Tah v. Global Witness Publ’g, Inc., 991 F.3d 231, 254 (D.C. Cir. 2021) (Silberman, J., dissenting) (“The increased power of the press is so dangerous today because we are very close to one-party control of these institutions”).     

[62] Indeed, although Sullivan itself did not focus on the institutional press (and both its holding and the rule it announced applied equally to the newspaper defendant and the multiple private citizens who had also been sued), there is some ambiguity in subsequent cases concerning whether their holdings apply to non-media defendants in defamation actions.  See, e.g.,Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986) (“To ensure that true speech on matters of public concern is not deterred, we hold that the common law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.”) (emphasis added).  Regardless of the abstract wisdom (or lack thereof) of applying a different rule to, for example, social media platforms or individual users of such facilities, the Court has elsewhere repeatedly declined to make such distinctions between “media” and “non-media” speakers.  See, e.g., Citizens United, 558 U.S. at 326-27; First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 802 (1978) (Burger, C.J., concurring) (“Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination.”).  But seeWest, The Stealth Press Clause, 48 Ga. L. Rev. 729 (2014).

[63] United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943).

[64] Johnson, Trump’s Supreme Court Nominee Cites His Decision in A&E Case in Query Over Libel Laws, Variety, Mar. 21, 2017 (quoting then-Judge Gorsuch).

[65] 646 F.3d 762, 764 (10th Cir. 2011).

[66] Id. at 769.