Celebrating Sullivan’s 59th Anniversary; MLRC White Paper’s First
Celebrating MLRC's Landmark White Paper One Year After Publication
March 9 will mark the 59th anniversary of the Supreme Court’s landmark decision in Times v. Sullivan. More locally, it also will be the first anniversary of MLRC’s release of its 200-page White Paper New York Times v. Sullivan: The Case for Preserving an Essential Precedent. A year later it seems a fair question to ask what was the impact of our White Paper? Was it worth the blood, sweat and tears involved in putting it together – the time and energy Lee Levine, its originator and quarterback, its chapter authors and my staff and I expended on the project?
Obviously, it’s difficult to answer that question with any specificity, but I would respond with a resounding “yes.” The good news is that Times v. Sullivan still stands as good law; no justices beyond Thomas and Gorsuch have sought its reconsideration; we haven’t heard much from those two, even though one public figure case seeking review of Sullivan did come and go before the Court; and, in general, while the momentum of the offensive against the retention of Sullivan hasn’t slowed, it hasn’t picked up speed either.
Anecdotally, people have read the White Paper. Aside from the usual media law defense lawyers and MLRC members, just in the last week I ran into two lawyers in other fields who said they had perused the White Paper and found it impressive and interesting. And I imagine that lawyers around the country, who have had to argue against plaintiff’s entreaties to get Sullivan reviewed, have used our materials profitably, and that much of our research and argument has found its way into their briefs.
I had reason to revisit the Paper myself just a few weeks ago. I had been asked to debate against University of Chicago Law School Professor Richard Epstein on the retention of Sullivan. When he was forced to drop out, he was replaced by Vermont Law School Dean Rod Smolla. (The fact that I was the first Assistant Dean of Vermont Law School as a 1L myself in VLS’ very first year of existence is another story, but I tried not to exploit this legacy to my advantage.) A second reading underscored just how well-written and information-packed our White Paper is. I would consider myself an old Times v. Sullivan hand (well, not that old, as I was in 9th grade when it was decided) but even so, there was a lot I learned by reading it – and a lot I used in the debate. (You can watch the whole thing here.)
The White Paper starts with two eloquent chapters: a Preface by Floyd Abrams and an Introduction and Executive Summary by Lee Levine. Floyd’s piece ends with an interesting challenge: “It rests with the Supreme Court of today to determine if, despite all the praise of and reliance on [Sullivan], it will conclude that, after all, it was indefensible.” Lee’s Introduction poignantly starts with the fact that on the federal judiciary’s own website, under a link to Supreme Court Landmarks “which have shaped [American] history”, New York Times v. Sullivan is listed along with Marbury v. Madison and Brown v. Board of Education. Lee’s Executive Summary goes on to recap the following chapters of the White Paper in a detailed yet succinct style.
I found particularly noteworthy, indeed fascinating, Matt Schafer’s opening chapter responding to Justice Thomas’ originalist argument. Not only does Matt show how many of Justice Thomas’ citations are cherry picked or taken out of context, more significantly, he explains how many predated 1791, when our Bill of Rights was adopted, and were either from England or from the colonies blindly following English law, espousing the very relationship between government and the governed which our Revolution was fought to reject. Thus, he shows how English jurist William Blackstone is one of Thomas’ chief sources; yet, it turns out Blackstone was an avowed monarchist – hardly an ideal thinker for the newfound colonies. Moreover, the chapter cites libel and other cases in the first half of the nineteenth century in which, inapposite to old English law, libels on public officials were not treated as worse than libels on private people, exactly because in our new country there was a responsibility of the citizenry to think and speak critically of the governors. Additionally, Matt turned up cases showing that far from being created from whole cloth, Sullivan’s actual malice rule had derivations in nineteenth century cases inquiring as to the good faith (a subjective standard) of the speakers even where their assertions were false.
In the debate with Rod Smolla, I was forced to argue that defamation law, and Times v. Sullivan, has nothing to do with the disinformation crisis we face, and that easing the libel standards would not be a meaningful remedy. That is because libel has to be about a person or entity, and so much of the false junk out there — 9/11 didn’t happen; Covid can be cured by ridiculous means; the election was rigged — isn’t aimed at and doesn’t defame anybody. Maybe reforming Section 230 can help alleviate the problem – even that is a dubious proposition – but it certainly is not a Sullivan problem. That, and many other practical answers to Justice Gorsuch’s critique, are offered by Dick Tofel and Jeremy Kutner in their wonderfully crafted chapter which takes Gorsuch to task for his many faulty assumptions about the media ecosystem. Among other points they make, which I enthusiastically reiterated in the debate, is that in all the hundreds of newsroom seminars I and they have given and heard, we never, as Gorsuch suggests, have advised reporters to bury their heads in the sand, as a way of minimizing doubts they may develop in working on a story. To the contrary, journalists’ training – and their lawyers’ advice – has always been to do as much research and newsgathering as possible in an attempt to get all the facts right.
In Chapter 3, Michael Norwick, my colleague at the MLRC, delivers a tour-de-force of empirical research into the data of libel litigation. Drawing on numbers from past MLRC studies, federal court data, and a new survey he developed of libel litigation against major media entities, he also rebuts many of Justice Gorsuch’s conclusions and numbers. Most easily grasped is the fallacy that Sullivan has led to a decrease in libel trials. In fact, Michael shows the quite dramatic decrease in all civil trials (presumably due largely to increased settlements because of the outrageous costs of going to trial) have nearly precisely paralleled the decrease in media libel trials. Tellingly, Michael’s research also revealed that of all the pre-trial motions media libel defendants have won in our data set, only 16% were on actual malice grounds, putting to bed the theory that Sullivan is somehow responsible for so many defense wins. Finally, Michael’s numbers confirm the anecdotal evidence many members have seen, that far from there being a decrease in libel suits in the last five to seven years, there has been an increase. And in any event, since the number of libel suits filed has gone up and down in the preceding 60 years, it’s hard to see how Sullivan, a 59 year-old precedent, is the cause for any of those changes.
I urge you to actually read the White Paper, so I am loathe to summarize all of our tome. Suffice it to say that in the next chapter, two teams of lawyers, from law firms Ballard Spahr and Davis Wright Tremaine, put meat on the bones of Michael’s numbers, and give real-life examples of cases which support his conclusions. Rather than discuss their chapter substantively, I would emphasize how proud and gratified I am that in this important effort, two firms, which normally compete with each other, coalesced for the common good and put their heads (and brains and pens) together to jointly author an important 30-page chapter in our book.
Finally, MLRC Deputy Director David Heller and Katharine Larsen concluded the White Paper with a chapter on comparative libel law – focusing on the differences between the non-Sullivan regime in the UK and ours. It served as a nice bookend to the first chapter which surveyed the originalists’ Bible, English common law back in the eighteenth century. But I found the most powerful part of this chapter the section on the SPEECH Act, the law passed unanimously by Congress which is based on the assumption that any country’s law that departs from a Sullivan-type rule is so heinous to our values that a judgment won under such a regime shouldn’t be enforced here. That is an especially strong statement both because, at bottom, no other country has a Sullivan in its jurisprudence, and because Congress’ stance upsets the norms of international comity, and so should be taken very seriously indeed.
So happy 59th birthday to Times v. Sullivan, and happy first to our White Paper. Gov. DeSantis’ ill-meaning and utterly crazed legislation to the contrary, many discarded cert petitions to be long-forgotten, and many Trumpian diatribes to be ignored, here’s hoping – and believing – that Sullivan will outlast all of us, and that maybe our youngest members will celebrate its 100th anniversary in 2064.
George Freeman is executive director of the Media Law Resource Center. Comments and questions welcome: firstname.lastname@example.org.