New York Times v. Sullivan: The Case for Preserving an Essential Precedent
MLRC has asked multiple experts to examine each of the major contentions that undergird the Justices’ calls for Sullivan to be revisited. 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.
Preface
Floyd AbramsEven the most enthusiastic praise of a Supreme Court ruling does not necessarily mean that the case was correctly decided or that its reasoning was flawless. So it is well worth revisiting the ruling and assessing its impact on libel law and First Amendment law more generally.
Introduction and Executive Summary
In this White Paper, MLRC has asked multiple experts to examine each of the major contentions that undergird the Justices’ calls for Sullivan to be revisited. 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.
Chapter 1: A Response to Justice Thomas
Matthew L. SchaferThis Chapter provides the missing historical context to assess Justice Thomas’ originalist attacks on Sullivan; along the way, it suggests that history, rather than undercutting Sullivan, supports the Court’s constitutionalization of the common law of libel.
Chapter 2: A Response to Justice Gorsuch
Richard Tofel and Jeremy KutnerIn his dissent in Berisha, Justice 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 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.
Chapter 3: The Empirical Reality of Contemporary Libel Litigation
Michael NorwickIt is the aim of this Chapter to quantify empirically what happens in defamation cases against the news media in a broader and more complete context than the Media Law Resource Center has undertaken in the past and to dispel some misconceptions about what conclusions can be drawn from our previously published trial data.
Chapter 4: The Reality of Contemporary Libel Litigation
Ballard Spahr LLP and Davis Wright Tremaine LLP*Decades of experience applying the Sullivan standard demonstrates the substantial value it brings to contemporary libel cases brought by public officials and public figures, and the importance of maintaining this protection.
Chapter 5: English Libel Law and the SPEECH Act: A Comparative Perspective
Dave Heller and Katharine LarsenThe modest purpose of this overview is to shed light on an overseas branch of our “legal family tree”—and perhaps glimpse at what our branch could suffer were we to abandon Sullivan.
Afterword
Lee LevineIt is very difficult to accept the notion that a decision reached by a unanimous Court in 1964, and then reaffirmed by an eight-justice majority a quarter century later, could somehow have been rendered illegitimate barely two decades after that.