Introduction and Executive Summary

 On http://www.uscourts.gov, the official website of the federal judiciary, there resides a link entitled “Supreme Court Landmarks,” which contains a list and brief description of each of those decisions that, collectively, “have shaped [American] history.”  On that list, alongside Marbury v. Madison[1] and Brown v. Board of Education,[2] is the United States Supreme Court’s unanimous 1964 decision in New York Times Co. v. Sullivan.[3]        

That Sullivan would appear in such company is not surprising. Distinguished scholars and jurists have often equated Sullivan and Brown, describing them (in the words of Judge Robert Bork) as two premier examples of the Court performing its constitutional duty to “apply old values to new circumstances.”[4] Harry Kalven, Jr., perhaps the preeminent constitutional scholar of his time, pronounced Justice William J. Brennan, Jr.’s opinion for the Court in Sullivan to be “the best and most important it has ever produced in the realm of freedom of speech.”[5]  In Pulitzer Prize winner Anthony Lewis’ definitive work on the case, Make No Law, he explains how Sullivan succeeded in “lay[ing] down the fundamental rules of our national life.  It made clearer than ever that ours is an open society, whose citizens may say what they wish about those who govern them.”[6]       

What is surprising, however, is that almost sixty years later, two current Justices of the Supreme Court, Clarence Thomas and Neil Gorsuch, would call for Sullivan to be reconsidered and, at least in Justice Thomas’ case, overruled. Justice Thomas contends that Sullivan cannot be reconciled with the “original intent” of the Framers and therefore constitutes an illegitimate exercise in policy-driven judicial legislating,[7] while Justice Gorsuch relies largely on what appears to be the opposite contention—that, in the context of the current “media landscape,” Sullivan no longer furthers the public policy goals it achieved when it was decided.[8]

Especially in the months since Justice Thomas doubled down on his critique of Sullivan, this time joined by Justice Gorsuch, there has been much ink (both conventional and electronic) spilled on various op-eds, blogs, editorials and assorted other takes on their published opinions, both pro and con.  What has been missing, however, is a detailed, comprehensive analysis of the arguments on which they rely.  In this White Paper, MLRC has attempted to fill that gap.  It asked multiple experts in the field to examine each of the major contentions that undergird the Justices’ calls for Sullivan to be revisited. The results of this effort are reflected in the Chapters that follow and are summarized here.  Collectively, they make an unassailable case that Sullivan’s rendition of the First Amendment-based limitations on libel law was correct when the case was decided and that it remains equally correct today.   

In Chapter 1, Matthew Schafer, the author of several scholarly works documenting the Framers’ understanding of freedom of the press generally and its role in delimiting the scope of the law of defamation specifically, examines Justice Thomas’ contention that the First Amendment, as drafted, was intended to co-exist with both the criminal law of seditious libel and the common law tort.  His exhaustive analysis demonstrates precisely the opposite, specifically:

• Justice Thomas’ reliance on the state of the common law of libel prior to the Revolution ignores important liberalizing of that doctrine in the colonies and, eventually, the States. The Founders referred to the English view of liberty of the press but drew a distinction between that liberty and the American view of freedom of the press.  There was a prevailing recognition that the cramped definition advocated in England by William Blackstone, an avowed monarchist, was insufficient to protect the public debate necessary to sustain the representative government adopted in the United States.  As a result, early libel cases in this country were the proving ground for freedom of the press and often resulted in relaxing common law rules based on a shared understanding that republican discourse was necessary for a representative democracy to work.
• By the Founding, the idea that libels on public officials were worse than those on private figures had already fallen out of favor in England and was rejected in the states. Indeed, many courts and commentators took the view that a citizen may well have an affirmative obligation to criticize public officials in order to advance republican government. 
• Both courts and commentators recognized that public officials assumed the risk of libels when they sought to become public servants and that the remedy for public officials unwilling to suffer libels was to withdraw into private life. Moreover, common law courts extended the requirement that “actual malice” be shown to public figures as early as the nineteenth century, finding that certain individuals who sought public attention and gained public power possessed a “quasi public character.”

In Chapter 2, Dick Tofel and Jeremy Kutner, who between them have served in virtually every capacity within a news media enterprise, from working journalist to senior executive to general counsel, probe Justice Gorsuch’s assessment of what he describes as the current “media landscape” and the incentives he fears it creates for journalistic malpractice.  Their detailed exposition of the realities of both the contemporary news media and libel litigation reveals that, Justice Gorsuch’s expressed concerns notwithstanding:

• The news media has, if anything, become more concentrated in recent years, not less as Justice Gorsuch posits, and the evolution of media incumbency—from newspapers to radio, to broadcast and then cable television, to websites and streaming—has not altered the news “media landscape” in any relevant sense. While it true in theory that technological change—specifically, the advent of the Internet and social media platforms—permits anyone to disseminate information around the world, it remains the case that very, very few content disseminators in fact reach an audience of any meaningful size.
• What has changed is the role played by social media platforms that act, not as creators of content (including the news), but rather as distributors of content created by others. The ills that Justice Gorsuch rightly condemns—the distribution of irresponsible and often dangerous misinformation—is not a creature of Sullivan, but rather of Section 230 of the Communications Decency Act,[9] which (unlike Sullivan)immunizes those platforms from liability arising from the content they disseminate.
• Justice Gorsuch seriously misapprehends how the news media actually functions under Sullivan’s legal regime, both historically and today.  Historically, news organizations, with the exception of some magazines that enjoy longer deadlines, have never employed “fact checkers,” as Justice Gorsuch assumes, and have always relied on the journalists who gather the news and the editors who supervise them to do their best to publish accurate information. 
• Today, the optimal legal strategy to avoid defamation liability is not, as the Justice posits, “ignorance is bliss,”[10] but rather purposeful efforts both to confirm the accuracy of reported information and to set out the basis for that reporting in the story itself.  Doing so not only discourages defamation suits in the first instance, it makes it much more likely that such a case will be dismissed on pre-trial motion, before the burden and expense of the litigation process itself becomes unsustainable.
• Perhaps most significantly, the “actual malice” standard articulated in Sullivan 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.  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. 
• Rather, Sullivan’s actual malice standard is the result of a judicial exercise in “definitional balancing,” a well-established process of constitutional adjudication that serves to determine what the Constitution and, in this instance, the First Amendment means when it prohibits the enforcement of laws that “abridge[e] the freedom of speech or of the press.”  In Sullivan, that process required the Court, which had previously held that “libel,” like “obscenity” or “fighting words,” is not “speech” within the meaning of the First Amendment, to decide exactly what the unprotected category of “libel” includes, just as it had previously defined the contours of the unprotected categories of “obscenity,” “fighting words,” and the like.[11] 
• When it comes to speech about public officials (and, later, other public persons), the Court in Sullivan determined, the definition of unprotected “libel” must be limited to “calculated falsehoods”—that is, speech that its publisher either knew to be false or about which it harbored serious doubts.[12] That definition serves the need of citizens in a self-governing democracy to monitor and criticize their leaders and inform themselves about public matters, as well as the concomitant necessity of holding those who would pollute public debate through the intentional dissemination of misinformation accountable for doing so.  It does not vary with the evolution of, or episodic changes in, the “media landscape.”
• If Sullivan is to be overruled, many other important First Amendment precedents would likely have to be abandoned as well, from cases that explicitly rely on its reasoning like Hustler Magazine v. Falwell[13]and Snyder v. Phelps,[14] to decisions that similarly reflect both the Court’s longstanding aversion to creating new categories of unprotected speech and its dedication to defining the contours of those categories it has recognized as narrowly as possible, like United States v. Alvarez[15]and United States v. Stevens.[16]                             

In Chapter 3, Michael Norwick, the editor of MLRC’s authoritative 50-State Surveys of defamation and other staples of media law, reports the results of a comprehensive empirical analysis that MLRC has undertaken for purposes of this White Paper. This analysis, which includes the results of a fresh survey of defamation cases filed against the news media, is especially significant because it comes on the heels of Justice Gorsuch’s reliance on an MLRC study of media trials to support the proposition that the actual malice requirementhas rendered the news media effectively “immune” from defamation liability in suits brought by public persons.[17] It reveals that Justice Gorsuch’s conclusion, which is based in part on what he describes as a sharp drop in the number of defamation trials since the 1980s,[18] does not withstand reasonable scrutiny because, among other things:

• The supposition ignores the dramatic decrease in all civil trials over the past several decades, which is in nearly precise sync with the decline in media libel trials.
• In all civil cases, trials have been largely replaced by settlements, facilitated by expanded mediation and ADR, broader discovery rules, higher litigation costs, and other factors that incentivize the risk-averse strategy of avoiding trials.
• Because the MLRC study on which Justice Gorsuch relies examines only media trials and not the vast majority of media defamation cases that never make it that far, it asked major news media companies to provide data about each of the libel complaints they received since 2009. Out of some 246 cases brought against these companies during that period, and 177 dispositive motions made prior to trial, defendants had a success rate of 75% (including results on appeal), but only 16% of those motions were granted (also including following appeal) on the issue of actual malice, very much challenging the contention that Sullivan is responsible for these defense victories.
• There is no evidence that the number of media libel cases has decreased since Sullivan. New MLRC research validates the perception of news media companies and their lawyers that the number of cases has actually increased in recent years.
• Although libel trials are now rare, settlements have replaced them in many cases, especially in connection with those cases that survive a motion to dismiss, which is typically made on grounds other than actual malice. In other words, settlements are the new trials. This too is consistent with generally available data about all civil cases.

In Chapter 4, a team of lawyers from Ballard Spahr LLP and Davis Wright Tremaine LLP, which between them represent news media defendants in a significant percentage of the libel actions instituted against them in the United States, drill down and examine many of the actual cases that collectively comprise the data points discussed in Chapter 3. Their independent analysis strongly supports the conclusions drawn from that data. Among their more significant findings:

• Sullivan has not dissuaded public persons from bringing libel suits; to the contrary, the last decade has seen a palpable increase in such cases. 
• Nor does the actual malice standard act as an absolute (or even near-absolute) bar to these kinds of claims getting before a jury. Instead, an extensive review of federal and state cases across the country confirms that many defamation suits brought by public officials and public figures proceed beyond an early motion to dismiss, to summary judgment and even trial. 
• Nor is the actual malice standard less necessary now than it was in 1964:  it still provides the crucial “breathing space” for speech that is essential to ensuring the public is fully informed. In actual practice, defamation lawsuits by public officials, public figures, and other powerful entities seeking to suppress unwelcome truths are just as pernicious now (if not more so) than when Sullivan was decided.[19]   
• Application of the actual malice standard by courts across the nation rewards sound journalistic practices and, in actual practice, disincentivizes the “ignorance-is-bliss” journalism decried by Justice Gorsuch by permitting libel suits to move forward where there is evidence that the defendant willfully ignored the facts or failed to adhere to basic principles of responsible news reporting.  At the same time, the actual malice standard rewards journalists who actively take steps to confirm the accuracy of potentially defamatory material before publication. 

In Chapter 5, Katharine Larsen, Chief Counsel at Reuters, and David Heller, MLRC’s Deputy Director and coordinator of its international initiatives, provide an important international perspective by tracing the evolution of modern defamation law in England, from the time Sullivan was decided in the United State to the present day.  Their analysis demonstrates that:

• In 1964, and for a significant period thereafter, the law of libel in England, which largely mirrored the law in Alabama when Sullivan was decided, provided a haven for public officials and other powerful persons to weaponize the legal system to stifle and punish criticism of them and their activities, regardless of whether they had sustained any injury to their reputations at all.  England became the center of what came to be called “libel tourism,” as foreign officials, oligarchs and celebrities all flocked to its courts even when their connection to the country was as tenuous as the sale of a few books to or a handful of clicks on news reports by its citizens.
• This phenomenon, and its impact on important journalism, has gradually led England to reform its libel laws in multiple respects, both by statute and judicial decision, in a manner that has now moved it somewhat closer to the law established in Sullivan and its progeny. 
• Even so, because the law in England continues to lag behind the United States, it remains a destination for those who seek to employ its courts to wage “lawfare,” the very same tactic that L.B. Sullivan and other public officials in Alabama hit upon in 1964 and which led the Supreme Court to put a stop to it in Sullivan.
•  Most significantly, when foreign plaintiffs, who had secured enormous damage awards in England, sought to enforce them in the United States, where the media outlets and others they sued had assets, the United States was obliged to respond.  First by judicial decision in courts throughout the country, and then by federal legislation passed unanimously by both houses of Congress and signed into law by President Obama, the United States determined that it would not enforce such judgments on these shores, precisely because they were secured under a legal regime that does not comport with our fundamental values as reflected in Sullivan.

As libel plaintiffs increasingly ask the Supreme Court to revisit and overrule Sullivan, it is our hope that this White Paper will serve to expose the weaknesses of their arguments and assist the defendants in those cases in their efforts to preserve a “landmark” decision that has indeed “shaped our history” and defined us as a nation.[20]

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[1] 5 U.S. 137 (1803).

[2] 347 U.S.483 (1954).

[3] 376 U.S. 254 (1964).

[4] Ollman v. Evans, 750 F.2d 970, 996 (D.C. Cir. 1984) (Bork, J. concurring) (citing Brown).

[5]  Kalven, The New York Times Case:  A Note on the Central Meaning of the First Amendment, 1964 S. Ct. L. Rev. 191, 194. Kalven’s contemporary, the equally distinguished constitutional scholar Herbert Wechsler, argued Sullivan in the Supreme Court on behalf of the New York Times Company. 

[6] Lewis, Make No Law: The Sullivan Case and the First Amendment 8 (1991). See also Levine & Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (2014).

[7] McKee v. Cosby, 159 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari).

[8] Berisha v. Lawson, 141 S. Ct. 2424, 2427 (2021) (Gorsuch, J., dissenting from denial of certiorari).

[9] 47 U.S.C. § 230.

[10] 141 S. Ct. at 2428.

[11] See Chaplinsky v. New Hampshire, 315 U.S. 563, 571-72 (1942) (fighting words); Roth v. United States, 354 U.S. 476 (1957) (obscenity).

[12] 376 U.S. at 280; see Garrison v. Louisiana, 379 U.S. 64, 74 (1964).

[13] 485 U.S. 46 (1988).

[14] 562 U.S. 443 (2011).

[15] 567 U.S. 709 (2012).

[16] 559 U.S. 460 (2010).

[17] 141 S. Ct. at 2424 (July 2, 2021) (revised July 29, 2021). As originally published, Justice Gorsuch relied on an inaccurate description of the MLRC data by David Logan, a professor at the Roger Williams School of Law. See Logan, Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan, 81 Ohio St. L.J. 759 (2020), cited in Berisha, 141 S. Ct. at 2428 (citing MLRC 2018 Report on Trials and Damages).  Promptly upon being advised of Professor Logan’s error, Justice Gorsuch corrected his opinion. Seethe Supreme Court’s website for a redline document showing revisions.   

[18] 141 S. Ct. at 2428; see also id. (citing Logan, supra, at 808-10).

[19] See, e.g., Grynbaum & Sullivan, Trump Attacks The Times, in a Week of Unease for the American Press, N.Y. Times, Feb. 20, 2019; Gold, Donald Trump: We’re going to ‘open up’ libel laws, Politico, Feb. 26, 2016.

[20] www.uscourts.gov (Supreme Court Landmarks, New York Times v. Sullivan).