Time to Reconsider New York Times v Sullivan?

Justice Clarence Thomas argues that a 55-year-old precedent should be overturned.

In my post on the family of the Covington teenager’s defamation suit against the Washington Post, I mentioned New York Times vs. Sullivan, the famous 1964 decision that made it substantially harder for public officials to win damages. Coincidentally, Justice Clarence Thomas issued a concurring opinion yesterday arguing that that case was wrongly decided and ought be overturned when an appropriate case comes before the Court.

NYT (“Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling“):

Justice Clarence Thomas on Tuesday called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it hard for public officials to prevail in libel suits.

He said the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it.

“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote.

Justice Thomas, writing only for himself, made his statement in a concurring opinion agreeing that the court had correctly turned down an appeal from Kathrine McKee, who has accused Bill Cosby of sexual assault. She sued Mr. Cosby for libel after his lawyer said she had been dishonest.

An appeals court ruled against Ms. McKee, saying that her activities had made her a public figure and that she could not prove, as required by the Sullivan decision, that the lawyer had knowingly or recklessly said something false. Ms. McKee asked the Supreme Court to review the appeals court’s determination that she was a public figure.

Justice Thomas wrote that he agreed with the court’s decision not to take up that question. “I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place,” he wrote.

In Justice Thomas’s view, the First Amendment did nothing to limit the authority of states to protect the reputations of their citizens and leaders as they saw fit. When the First Amendment was ratified, he wrote, many states made it quite easy to sue for libel in civil actions and to prosecute libel as a crime. That was, he wrote, as it should be.

“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Justice Thomas wrote of the Sullivan decision. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”

Reporter Adam Liptak then launches into an editorial beginning with, “The events leading to the Sullivan decision test that assertion.” I tend to agree with him but that’s tangential to my purpose here.

Now, I’m more sympathetic than most OTB readers to both Justice Thomas and the notion that the Constitution ought be interpreted according to its text and the context of the times in which it was written. Still, I think he’s mostly wrong here.

Initially, based on the excerpts from Liptak’s report, I was puzzled by Thomas’ focus on the First Amendment’s treatment of the role of the several states since, while he’s right, it’s not what the ruling was based upon. Rather, the Court was incorporating the First Amendment’s free press protections to the states via the Equal Protection Clause of the Fourteenth Amendment. But, looking at the concurrence itself, it’s clear Thomas understands that:

We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

After a lengthy discussion of the findings and process of NYT vs Sullivan and related follow-on cases, Thomas asserts:

None of these decisions made a sustained effort to ground their holdings in the Constitution’s original meaning. As the Court itself acknowledged, “the rule enunciated in the New York Times case” is “largely a judge-made rule of law,” the “content” of which is “given meaning through the evolutionary process of common-law adjudication.” Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 501-502 (1984). Only Justice White grappled with the historical record, and he concluded that “there are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering them powerless to protect themselves.” Gertz, supra, at 370 (dissenting opinion).

But the Common Law is by definition judge-made. And, while I generally oppose wholesale invention of new Constitutional rights by five-ninths of the Supreme Court, the very nature of judicial review combined with the Common Law principle of stare decisis means that, over time, the findings as to individual cases in controversy will form a web of precedent that informs later decisions. Further, defamation law was always a matter of Common Law interpretation. And this became especially true in the United States, which early deviated from the English tradition in declaring that truth was “an absolute defense” against claims of defamation. (Indeed, it’s still not that way in the UK.)

Thomas goes on:

The common law of libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages. Typically, a defamed individual needed only to prove “a false written
publication that subjected him to hatred, contempt, or ridicule.”

[…]

[W]here the publication was false, even if the defendant could show that no reputational injury occurred, the prevailing rule was that at least nominal damages were to be awarded.

[…]

Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (“Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man”); 4 id., at *150 (defining libels as ”malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule” (emphasis added)). Libel of a public official was deemed an offense ”‘most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.'”

He goes on to note that the main way public figures were treated differently was that there was far more freedom to criticize them in the public arena than was afforded vis-a-vis private individuals. Still, Thomas rightly notes, this remained the case well into the 20th Century:

The Court consistently listed libel among the “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942); see, e.g., Beauharnais, supra, at 254-256, and nn. 4-5, 266 (libelous utterances are “not . . . within the area of constitutionally protected speech”); Near v. Minnesota ex rel. Olson, 283 U. S. 697, 715 (1931) (“[T]he common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions”).

He goes on at great length about how much New York Times v Sullivan broke with this tradition. Both the length and format make excerpting here difficult. Ultimately, he concludes:

It is certainly true that defamation law did not remain static after the founding. For example, many States acted ”by judicial decision, statute or constitution” during the early 19th century to allow truth or good motives to serve as a defense to a libel prosecution. Beauharnais, supra, at 254-255, and n. 4. Eventually, changing views led to the ”virtual disappearance” of criminal libel prosecutions involving individuals. Garrison, 379 U. S., at 69. But these changes appear to have reflected changing policy judgments, not a sense that existing law violated the original meaning of the First or Fourteenth Amendment.

In short, there appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.

Like Justice White, I assume that New York Times and our other constitutional decisions displacing state defamation law have been popular in some circles, “but this is not the road to salvation for a court of law.” Gertz, 418 U. S., at 370 (dissenting opinion). We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.

It’s true that, at least for true public officials, I think Sullivan is right on policy grounds. But I think it also brought, as was its stated purpose, defamation law and the freedom of the press generally in line with other First Amendment protections:

Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth — whether administered by judges, juries, or administrative officials — and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall, 357 U. S. 513, 357 U. S. 525-526. The constitutional protection does not turn upon “the truth, popularity, or social utility of the ideas and beliefs which are offered.” NAACP v. Button, 371 U. S. 415, 371 U. S. 445. As Madison said, “Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press.” 4 Elliot’s Debates on the Federal Constitution (1876), p. 571. In Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 310, the Court declared:

“In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.”

That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the “breathing space” that they “need . . . to survive,” NAACP v. Button, 371 U. S. 415, 371 U. S. 433, was also recognized by the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S. 678. Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman’s libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial appointment. He said:

“Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. . . . The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information. Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man’s mental states and processes, are inevitable. . . . Whatever is added to the field of libel is taken from the field of free debate. [Footnote 13]”

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U. S. 252. This is true even though the utterance contains “half-truths” and “misinformation.” Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 342, 328 U. S. 343, n. 5, 328 U. S. 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. See also Craig v. Harney, 331 U. S. 367; Wood v. Georgia, 370 U. S. 375. If judges are to be treated as “men of fortitude, able to thrive in a hardy climate,” Craig v. Harney, supra, 331 U.S. at 331 U. S. 376, surely the same must be true of other government officials, such as elected city commissioners. [Footnote 14] Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism, and hence diminishes their official reputations.

There’s a lot more to the opinion than that but, for me, that’s the crux.

To me, this is quite different than, say, the finding of a theretofore undiscovered Constitutional right of privacy in Griswold. Here, the court is expanding a specifically-listed Constitutional right—the First Amendment’s protection against the abridgment of a free press—by clearing away an interpretation of libel law stemming from a feudal society that the Constitution—indeed, America’s very founding—sought to leave behind.

Thomas might be on firmer ground here if he were objecting more broadly to the selective incorporation of various rights by the judiciary well after the enactment of the Fourteenth Amendment. But he doesn’t seem to be making that argument. Indeed, he seems to acknowledge that the Fourteenth has a role here.

Beyond all of that, even if one takes a textual or strict constructionist view of Constitutional interpretation, there’s the matter of stare decisis. Even the late Antonin Scalia granted that there was such a thing as settled law. While longer-standing precedents than Sullivan have indeed been overturned, it’s usually only in extreme cases like the infamous “separate but equal” ruling in Plessy v Furguson. While I understand where Thomas is coming from with regard to judge-made law, there really needs to be a good public policy reason to overturn something this established—especially since doing so goes in the direction of diminishing, rather than enhancing, freedom.

UPDATE: As noted in the earlier post about the Covington lawsuit, I do think it’s worth considering whether post-Sullivan decisions may have gone too far in making public figures out of ordinary citizens. But the core holding in Sullivan strikes me as both consistent with the Constitution and the Common Law principles of free expression when applied to public officials.

FILED UNDER: General
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Stormy Dragon says:

    When the Justice Thomas of the world start calling for libel prosecutions for President Trump, I’ll consider their argument. Until then, it’s just another bad faith attempt to politicize government so that they can ban use it to pursue a partisan agenda.

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  2. James Joyner says:

    @Stormy Dragon: It would be bizarre and improper for a sitting Justice to call for prosecution of any citizen, let alone the President of the United States. And I don’t consider this to be a bad faith effort at anything, as it’s consistent with his longstanding judicial philosophy.

  3. Daryl and his brother Darryl says:

    I guess I will take solace in the fact that the 8 other Justices didn’t sign on to this nonsense.
    There is talk of Thomas retiring so that another so-called conservative can be put in his place to last another 40 or so years. Much as I hate to see that happen…I’d love to see Thomas go.
    Just as I loved seeing Scalia go.

  4. Stormy Dragon says:

    @James Joyner

    When I said “the Justice Thomases of the world”, I didn’t mean him literally. This wasn’t just some random musing on his part, but exists within a larger Republican movement to make libel suits easier to win so that they can sue people for criticizing them. You are however correct that carrying water for Republican party is consistent with Thomas’s longstanding judicial philosophy.

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  5. Hal_10000 says:

    @Daryl and his brother Darryl:

    Thomas has voted in the minority numerous times on civil liberties and wrote a stirring dissent in the Raich case. This was a bad opinion — chasing a philosophy down a rabbit hole. But you’ll miss him when he’s replaced by a Federalist drone.

  6. Andre Kenji de Sousa says:

    @Hal_10000:

    But you’ll miss him when he’s replaced by a Federalist drone.

    I don’t know, Gorsuch is definitely better(Or less worse) than him.

  7. gVOR08 says:

    @James Joyner:

    And I don’t consider this to be a bad faith effort at anything, as it’s consistent with his longstanding judicial philosophy.

    But the timing seems a bit suspicious, what with the President* calling for changing libel rules and tweeting about fake news all the time.

  8. Daryl and his brother Darryl says:

    @Hal_10000:

    But you’ll miss him when he’s replaced by a Federalist drone.

    The SCOTUS is firmly positioned as a right-wing instrument for the duration of my life.
    Nothing I can do about that.
    But Thomas is a worthless piece of shit and I’m glad to see him go.
    Not sure how they can do worse.
    Even Justice Boof is better, if they can keep him from passing out in the hallway.

  9. al Ameda says:

    Like Trump, the departure of Justice Thomas can’t come soon enough.

    I realize that this probably isn’t on radar right now, but does anyone else remember that Justice Thomas failed to disclose (for many years) on annually required federal disclosure forms that his wife was employed by the Heritage Foundation (often a party to cases that come before the Supreme Court.)

    He could have been removed from the Court for that; about 50 years ago Justice Abe Fortas was removed from the Court for less.

  10. Just Another Ex-Republican says:

    I’m always ambivalent when this comes up. Proving malice is so difficult in libel laws that Fox Opinion (and many others) were able to spend 8 years lying through their teeth about President Obama. In the time of Sullivan I think the feeling was that “the truth will out”, but in this day of media echo chambers I’m not so sure that’s true any more. How many birthers are still out there?

    On the other side, President Trump at least clearly considers something libel if he doesn’t like it, not whether it’s true or not, and there would absolutely be an extremely chilling impact on news reporting if news organizations could be sued for printing/airing something that turned out to be false.

    How do you restrict bad actors hiding behind the almost impossible to prove malice reasoning, while protecting true reporting that does and will continue to sometimes get facts wrong?

  11. Kit says:

    These originalists come in two flavors: good faith and bad faith. Quite frankly, I consider the former to be fools. They treat the Constitution as if were divinely inspired, and by scraping away two centuries of judicial excrescence they can get to the timeless truths of God. Given the difficulties in changing the Constitution, the only way the country can move forward with the times is for judges to (slowly) change how we think. That’s not ideal, but then again this isn’t Freshman year in philosophy either. Unfortunately for us, this sort of kludge only really works when the country’s best legal minds sit on the bench.

    The other branch of originalists simply wish to throw away laws they don’t care for: any reasoning is good which achieves that end (as long as it not be consistently applied). To hell with that group.

  12. Gustopher says:

    @Kit:

    These originalists come in two flavors: good faith and bad faith. Quite frankly, I consider the former to be fools. They treat the Constitution as if were divinely inspired, and by scraping away two centuries of judicial excrescence they can get to the timeless truths of God. Given the difficulties in changing the Constitution, the only way the country can move forward with the times is for judges to (slowly) change how we think.

    I am pretty sure that group of originalists thinks that amending the constitution isn’t nearly impossible, and would point to the existing amendments as proof. Not handed down by god, but written by people, to be followed until amended.

    (I think the original authors intentionally used broad language, since they didn’t agree on all the details and were deferring to the courts, with the belief that it could be amended if the interpretation strayed to far — I refuse to cede the term “originalist”)

  13. dazedandconfused says:

    Thomas has his points but this one struck me as absurd…

    If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

    …if not disingenuous. The Constitution is almost a pamphlet, a rough guide. I wonder if Clarence fails to see the things he likes in there as well as he fails to see the things he doesn’t.

  14. Kit says:

    @Gustopher:

    I am pretty sure that group of originalists thinks that amending the constitution isn’t nearly impossible, and would point to the existing amendments as proof

    How many rulings have set judicial precedent compared to how many amendments have been signed? I’m guessing that the one exceeds the other by several orders of magnitude. One is obviously doing the heavy lifting with regards to making the law workable.

    I think the original authors intentionally used broad language, since they didn’t agree on all the details and were deferring to the courts, with the belief that it could be amended if the interpretation strayed to far

    You think this. So you put yourself into the role of a mind-reader. And I guess that includes the insight into the unwritten but consistent meaning of just what constitutes “too far”. Sorry, but I’m just not buying it.

  15. Stormy Dragon says:

    @Kit:

    The problem with originalism is the hinges on the belief that a piece of text has a singular universal meaning, which is demonstrably false and is especially false for law, which arises as a result of political compromise rather than as the expression of a single author.

  16. Scott says:

    I’m totally confused. During confirmation hearings we are regularly told that judicial opinions can’t be explored because that would be improper or something ahead of the actual cases. However, Justice Thomas just told us how he would vote if this came up. So which is it? Improper before confirmation and proper after?

  17. An Interested Party says:

    The other branch of originalists simply wish to throw away laws they don’t care for: any reasoning is good which achieves that end (as long as it not be consistently applied).

    And yet these are the same people who howl about “legislating from the bench”…I realize that hypocrisy is part of politics and government, but things like this are really too much…

  18. grumpy realist says:

    @Stormy Dragon: One prime example of how the Common Law countries can have a tradition of “waffling over” problems via blurry language is the present brouhaha between the EU and the UK concerning “the backstop”. The UK is perfectly happy to put in some very loosey-goosey language about what the damn thing actually is and does but the EU, having already been bitten once by signing up for an earlier version of the agreement and then having a certain nitwit of the U.K. government immediately state that well, it didn’t matter that the U.K. had signed it, they could always reneg…..is now extremely picky and insistent on having everything defined and all the i’s dotted and the t’s crossed.

    Allowing for floppy language in writing legislation really only works when you can really assume good faith on both sides. And the Brits have muffed it–once again. They may have been able to pull it off earlier in their history when the firepower was on their side, but now…? Nope.

  19. Kit says:

    @Stormy Dragon: Fair enough. I doubt that people write laws with the intention of being vague. Still, language moves on, as does culture and society, and what was once obvious, slowly drifts far away into another understanding. I’m pretty sure that the Second Amendment today has nothing much to do with the original intention, but we are where we are, and the only way forward is to decide just what it is that we want, not what the Founders wanted for themselves.

  20. Gustopher says:

    @Kit: The founders either intentionally used broad language that was open to interpretation (probably with an assumption that amendments can reign in any excesses), or they were really, really bad at writing a constitution.

  21. Barry says:

    @James Joyner: “And I don’t consider this to be a bad faith effort at anything, as it’s consistent with his longstanding judicial philosophy.”

    That’s making the assumption that his ‘ longstanding judicial philosophy’ isn’t in bad faith.

  22. Barry says:

    @An Interested Party: “And yet these are the same people who howl about “legislating from the bench”…I realize that hypocrisy is part of politics and government, but things like this are really too much…”

    Again and again I’ve found that all right-wing propaganda is Freudian projection. The only reason that they haven’t already done what they accuse others of is because they haven’t yet had the chance.