A look at New York Times Co. v. Sullivan in 2021
When I first learned about Sullivan back in law school aeons ago, I remember being disturbed by the case. It’s not that I had a better solution. But it was easy to see the problem: how best to balance the need to have a free press with the need to protect people, even people in public life who are written about a great deal, from libel?
Sullivan‘s solution – to raise the bar for libel exceptionally high and to make actual malice (“meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true”) necessary for a defamation finding against the press when a public person is the one maligned – presents the dangers of lies going unchecked and running rampant. But muzzling the press unduly isn’t good either.
Back in 1964, when the case was decided, the situation was exceedingly different than it is today. Now we have a press that has no regard for truth, is almost wholly partisan and firmly on the left, and willing to do almost anything to help its side win.
As with so many other things, none other than Donald Trump recognized the problem, since he has been the target of it. Even back during his 2016 campaign he was critical of the ruling, for obvious reasons:
One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,” Trump said.
I’m not sure how he thought he might do that, but at any rate it didn’t happen, and things have only gotten worse with the shameless and naked partisanship of the press plus the power of social media.
Even as early as 1985, one of the justices who voted for Sullivan expressed regret:
[I]n a 1985 case that helped refine how the Sullivan ruling applied in when a plaintiff was neither a public official nor a public figure, Justice Byron White expressed regret for the “actual malice” test that he had agreed with in Sullivan. “I have,” he wrote, “ … become convinced that the Court struck an improvident balance in the New York Times case between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation.” Chief Justice Warren Burger, who joined the court four years after Sullivan was decided but presided over the several of the cases that refined the Sullivan standard, agreed with White in his own concurring opinion.
Justice White’s description of the competing interests as he saw them is quite interesting. He sees on one side “the public’s interest in being fully informed about public officials and public affairs” and the other side as “the competing interest of those who have been defamed in vindicating their reputation.” Public versus individual interest – I believe that’s the traditional view. But what of the public’s interest in being informed of the truth rather than falsehoods? Do we not all have an interest in that? However, who determines what’s true and what’s false? After all, the MSM and social media gatekeepers and the left (redundant, I know) keep saying it’s they who tell the truth and those on the right who lie.
Justice Clarence Thomas also critiqued Sullivan back in 2019, saying that it and subsequent allied rulings “were policy-driven decisions masquerading as constitutional law.”
And yesterday Judge Laurence Silberman, a Reagan-appointed judge on the DC Circuit Court, issued a scathing dissent in a defamation case that’s gotten some attention:
The New York Times and The Washington Post are “virtually Democratic Party broadsheets,” while the news section of the Wall Street Journal “leans in the same direction,” U.S. Circuit Judge Laurence Silberman said. He said the major television outlets and Silicon Valley giants were similarly biased.
“One-party control of the press and media is a threat to a viable democracy,” Silberman wrote. He exempted from his criticism of “Democratic ideological control” Fox News, The New York Post, and The Wall Street Journal’s editorial page. But he lamented that these outlets are “controlled by a single man and his son,” a reference to Rupert and Lachlan Murdoch, and questioned how long they could hold out.
Here’s a sample of the actual wording of the dissent:
After observing my colleagues’ efforts to stretch the actual malice rule like a rubber band, I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. See McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380–88 (1974) (White, J., dissenting). As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone. …
One can understand, if not approve, the Supreme Court’s policy-driven decision. There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same rule.
As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon. Cf. New York Times, 376 U.S. at 305 (Goldberg, J., concurring) (reasoning that the press will publish the responses of public officials to reports or accusations). But see Suzanne Garment, The Culture of Mistrust in American Politics 74–75, 81–82 (1992) (noting that the press more often manufactures scandals involving political conservatives). The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a “bland and homogenous” marketplace of ideas. See Hale v. FCC, 425 F.2d 556, 562 (D.C. Cir. 1970) (Tamm, J., concurring). It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat.
Much much more at the link. At the end of the article there, you can find links to a whole bunch of pieces reacting to Silberman, many of them – of course – from the leftist press.
I’m with Silberman, and have been from even before my political change. However, the problem of the proper standards remains – and of course, it’s not just the press that is biased to the left at this point. A great deal of the judiciary is as well. So I’m not sure the remedy lies in the judicial system at all.
In closing I’m going to include a quote offered this morning by commenter John Tyler, something William Shirer wrote as part of his reporting from Nazi Germany in the 30s:
I myself was to experience how easily one is taken in by a lying and censored press and radio in a totalitarian state. Though unlike most Germans I had daily access to foreign newspapers, especially those of London, Paris and Zurich, which arrived the day after publication, and though I listened regularly to the BBC and other foreign broadcasts, my job necessitated the spending of many hours a day in combing the German press, checking the German radio, conferring with Nazi officials and going to party meetings. It was surprising and sometimes consternating to find that notwithstanding the opportunities I had to learn the facts and despite one’s inherent distrust of what one learned from Nazi sources, a steady diet over the years of falsifications and distortions made a certain impression on one’s mind and often misled it. No one who has not lived for years in a totalitarian land can possibly conceive how difficult it is to escape the dread consequences of a regime’s calculated and incessant propaganda. Often in a German home or office or sometimes in casual conversation with a stranger in a restaurant, a beer hall, a café, I would meet with the most outlandish assertions from seemingly educated and intelligent persons. It was obvious that they were parroting some piece of nonsense they had heard on the radio or read in the newspapers. Sometimes one was tempted to say as much, but on such occasions one was met with such a stare of incredulity, such a shock of silence, as if one had blasphemed the Almighty, that one realized how useless it was even to try to make contact with a mind which had become warped and for whom the facts of life had become what Hitler and Goebbels, with their cynical disregard for the truth, said they were.
At the very least, revising Sullivan might stop the avalanche of anonymously-sourced stories, so many of which have turned out to be false. It’s a disgrace that once someone becomes a “public figure” he can be defamed with impunity.
Related:
https://www.zerohedge.com/political/judge-rules-new-york-times-used-deceptive-disinformation-smear-project-veritas
Pushback, but one doubts it will be enough.
On the other hand, the media’s loss of credibility has accelerated (though not nearly as much as it should be).
More pushback, if a day late and a dollar short….(But who knows? Maybe the idea of electoral accountability will be more than a passing fad? Or maybe it’s being done merely for “optics”?)
https://www.theepochtimes.com/arizona-state-senate-ordering-hand-recount-of-2-1-million-ballots-for-2020-presidential-election_3742329.html
In the open thread this morning I posted the MEANING IN HISTORY commentary which is also excellent. I bounce between these two sites to comment.
Politics are not static. Change is coming. The old ways are being swept away. We have to work to accelerate the change.
https://meaninginhistory.blogspot.com/2021/03/laurence-silbermans-blast-at-judicial.html
The one above is also compelling and disturbing at the same time. It would be interesting to see what states troops are in DC at this moment.
https://meaninginhistory.blogspot.com/2021/03/compelling-commentary-32021.html
https://www.frontpagemag.com/fpm/2021/03/there-no-biden-administration-daniel-greenfield/
Another sad fact is that the Roberts Supreme Court can no longer be trusted to avoid politics in making decisions. For this reason, I do not see how Officer Chauvin can ever receive a fair trial or a fair appeal on his certain conviction. Roosevelt’s threat to pack the Court in 1937 accomplished his purpose but even he did not have a black shirt mob like BLM to frighten the court
To paraphrase; “one was met with such a stare of incredulity, such a shock of silence, as if one had blasphemed the Almighty, that one realized how useless it was even to try to make contact with a mind which had become warped and for whom the facts of life had become what
Hitler and Goebbels,the MSM and democrats with their cynical disregard for the truth, said they were.”You do realize neo that in relating this, you are arguing that no non-violent means of redress is effective in a society in which the totalitarians hold sway?
“Inside Every Progressive Is A Totalitarian Screaming To Get Out” David Horowitz
I Am Sparticus,
Re: “Politics are not static. Change is coming. The old ways are being swept away.”
Upon what basis do you make that claim?
Goeffrey Britain:
I am Sparticus has experience in the field it seems and appers to have some hope for positive change in the fight with our leftist totalitarians. You have your opinion that this will only end with civil war, 600k Americans perished in the previous civil war IIRC. It may not go as you opine.
Geoffrey – because 74M+ people are pissed and engaged.
The border is in crisis, gas prices are going up, job growth is slowing, Legacy Media is laying off the operatives as Trump is no longer around and the struggle for control in the Executive Branch is spilling out. Joe is stumbling, mumbling and sliding quickly into the fog of distant memory. ELDER ABUSE! There is no way they can hide it. Kama Sutra is a dimwit and every time someone sees her her negatives go up. Lawsuits will reveal the fraud and we can tell the Biden supporters “you voted for this!”
Alternative modes of communication are being built up with Locals (I joined), Telegram, Substack (see link) and others. They can’t shut us up. Change is a process and not a moment. The overseas media is noticing and commenting.
The Anchorage summit with China was a disaster. It is so sad when Kerry looks like a distinguished statesman. The process is moving along. I am highly confident it will succeed.
https://mtracey.substack.com/p/why-journalists-hate-substack
https://greenwald.substack.com/p/journalists-illustrating-how-they
I fight within the system so people don’t have to go outside the system to redress their grievances. So set your face to stone, gird your loins for battle and work with purposeful cold anger.
Some years ago, in some kind of panel, Walter Cronkite was asked what he thought about the audience reaction at the end of the movie “Absence of Malice”. In it, Paul Newman, having been screwed by a local paper, fakes them into going too far. Each maneuver is priceless as the journos prepare their next act of slander.
Then he springs it, which is to say lets them take the final step.
The theater audience goes wild.
Cronkite didn’t like it. Not At All.
Wonder if netflix has that….?
I am reminded of being in the theater at the end of American Sniper the funeral scene. Bunch of us stood and rendered the hand salute. I’ve heard that happened a lot. I can think of a number of folks who would consider that ominous. They’re right.
But to return to Absence of Malice…things were going south for journos long ago, so badly that seeing them get their comeuppance, if only fictionally, was hugely satisfying.
Now, if we can only fix that Gell-Mann thing.
Another decision against the Legacy Media. Another crack in the Sullivan defense.
https://www.zerohedge.com/political/judge-rules-new-york-times-used-deceptive-disinformation-smear-project-veritas
I suppose the legal doctrine that “nobody could possibly be this stupid” as response to the usual defense against accusations of malice is going to get more use. I mean, “We’re not crooks, we’re stupid,” is wearing out, right?
Related:
https://www.zerohedge.com/political/defiant-us-soldiers-openly-questioning-why-blm-riots-werent-treated-capitol-insurrection
All the Democrats and their enablers have to do is keep that bright and shining hypocrisy coming… (In addition to their rampant criminality, it’s pretty much all they know…. Though it must be admitted, if not exactly grudgingly, that they are true masters of the “genre”…)
Do you remember Ariel Sharon suing Time? He dropped the case in the US ultimately, but filed suit in Israel. Time folded and settled because Israel doesn’t require the malice portion of it, apparently.
Sharon dropped it in the US: He’d proven they lied. It was harder proving they knowingly lied. And he was advised the proving actual malice was going to be extremely difficult.
Time trumpeted it as a major victory for freedom of the press!!!! And not one word about settling in light of the suit filled in Israel. (Though the NYT did report the Israel win. I wouldn’t put it past Friedman to have given it a, “Well of course he did because it was Israel” spin.)
In the 50s, people were asked to take a pledge of loyalty.
Today, its being demanded that they take a pledge of disloyalty.
https://legalinsurrection.com/2021/03/former-fed-prosecutor-launches-campaign-to-force-every-business-in-america-to-take-anti-trump-purity-pledge/
Stalinism has arrived.
And it is being promoted and encouraged by the Democratic Party, the media, the academy…and by people who likely once considered themselves liberals.
And they will push this as far as they can.
“….Politics are not static. Change is coming…… ”
True, but the change may be far worse than what it replaced. History is very clear on this.
Depending upon what strategies – violent or not, legal or not – the leftists / fascists/communists/democrats utilize to maintain/increase their power, will determine if the totalitarians prevail..
Those demonstrating in Venezuela for democracy lost the battle; the magnitude and the frequency of their demonstrations notwithstanding. Maduro , with Cuban secret police help, just arrested all the group leaders.
End of demonstrations.
China did much the same in Hong Kong; allow the demonstrations to cool off, wait a few months, then in the middle of the night arrest the top protest leaders.
End of demonstrations.
Castro just shot executed or imprisoned all those who could challenge him.
End of story (which ended about 60 years ago).
Poland, Czeckoslovakia, Hungary; you know that old Eastern Europe USSR thing that the left tells us didn’t happen. Is that history too? Something about making your enemy impregnible and you unarmed?
Regarding China; will the grow old before the run the table? Regarding Venezuala and Cuba how long can you feed your secret police and army rats, cats, dogs, and frogs and expect the to obey Dear Leader?
om,
Understand; given circumstance, I perceive no alternative to civil war and I fervently hope that events prove me wrong.
I am Sparticus,
What JohnTyler said.
om,
Poland, Czeckoslovakia and Hungary did not free themselves. They declared independence from a collapsed Soviet Union that could not rein them back into the ‘union’.
China growing old will not act as a fatal impediment to their global ambitions. Here’s why; the ChiCom leadership is loyal to an ideological imperative, to eliminate capitalist societies. Plus the chinese people, in the aggregate, hate America. So they’re on board with their leadership. For confirmation of this assertion, see: https://m.youtube.com/watch?v=py7ew8zeIVE
It is not Cuba and Venezuela’s secret police and army that are being forced to eat rats, cats, dogs, and frogs but a disarmed public that is forced to dumpster dive for their ‘food’. Cuba has been doing that for 50-60 years with no indication of it ending. Venezuela has Cuban advisors to steer Maduro in the ‘right’ direction.
Poland and Czeckoslovalia rebelions happened before the collapse and Hungary long before the collapse. Things don’t always happen overnight. Cuba no longer has the USSR to prop it up and Venezuala can’t seem to use all that oil to get bread or anything else. Ya think that is sustainable? Our enemies are gods we are ants?
@Geoffrey Britain:Plus the chinese people, in the aggregate, hate America.
At 1.2 births per woman for the last 20 years, there will soon be no Chinese people in the aggregate…
If you spend any time with Chinese people, you might hear some America hate, but you will definitely hear about the “little princes”, only children with 2 parents and 4 grandparents, who have no interest in marriage education or work because 6 adults direct all their disposable income toward them and they expect to inherit it all…
15 million babies born in China in 2020. India’s at 27 million with 2.2 births per woman…
Nigeria 6 million babies born in 2020 with 5 births per woman, on a population base of only 200 million…
So I’m really not sure with what or toward whom the lust for global domination will be expressed, with a small military-age population interested only in porn and video games.
There actually is no glass to be half full or half empty. I fear all who think otherwise are willfully blind (sarc).
Well since those military aged males in the great all powerful CCP (at least to the left) have few chances of finding a “biological female” thanks to the one child policy of the CCP and resulting female abortion/infantacide, what are they to do?. Arc of history thing.
om Whatever they do, they’ll have to do it fast. You play the long game when you think you have time and you do the short game when you don’t. Generally, the long game is presumed to be more certain and carry fewer risks. Which means the short game, should there be one, would be really, really messy
Cdrsalamder: Sal or Eagle One have speculated that the large dams on the major Chineese rivers are pretty high on the target list should the CCP begin to assert their “historical rights” in east Asia. Now whether the gender and justice obsessed Ring Wraiths of Washington would resist such a CCP adventure, who can say?
John Tyler/Geoffrey – “True, but the change may be far worse than what it replaced. History is very clear on this.”
And as a counter balance there is the Glorious Revolution, Fall of the Berlin Wall, End of the Soviet Union, Contract with America off the top of my head. You never can tell until you try and that is what I am doing. I will be that man in the arena. Working in the system and if in the end that fails, I will be on the barricades with a steady gaze and firm grip on the rifle. In any event I am all in.
I will not go gentle into the good night.
https://duckduckgo.com/?q=rage+rage+against+the+dying+of+the+light&va=b&t=hr&iax=videos&ia=videos&iai=https%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3DrG-pg9D2978
https://ncrenegade.com/wp-content/uploads/2021/02/leftalone.jpg
I’m surprised this hasn’t been posted yet.
https://www.theblaze.com/news/judge-rules-sarah-palins-defamation-suit-against-the-new-york-times-can-go-to-trial
“Sarah Palin’s defamation lawsuit against The New York Times is moving forward and headed to trial after a federal judge ruled Friday that a jury will decide whether the newspaper acted with “actual malice” when it published a false editorial pointing to Palin as the motivation behind the 2011 assassination attempt on former Rep. Gabby Giffords (D-Ariz.).”
(That was August 2020, so I’m not sure where the suit is now; nothing later came up on the DDG search. However, it was definitely a step in the right direction.)
Any lawyer representing a plaintiff in a suit against a news outfit should be sure to do discovery on whether anyone at the outfit participates in a Journo-list type group. We know from the leaked threads that exposed that nasty group of “journalists” that they actively discussed making up accusations of racism against Republicans to distract from one or another of the Obama scandals. They regularly coordinated the messages they wanted to publish to provide help to the Left. I would be shocked if a new replacement for Journo-list isn’t operating the same way.
Clearly, this type of coordination regarding a story would be strong evidence of ‘actual malice’.
—-
unrelated except for the fact that these court decisions impact elections — do any of the readers here have any hope for honest elections in the future? Is so, why?
stan – the trick is getting to the discovery phase; many of these suits are dismissed because judges are too deferential to the Sullivan precedent.
Fortunately, Project Veritas now has the judge’s permission to do so.
https://www.powerlineblog.com/archives/2021/03/project-veritas-vs-new-york-times.php
“On Thursday, the presiding judge denied the Times’s motion to dismiss in an opinion you can read here. Denial of the motion to dismiss does not mean that Veritas will ultimately win the case, obviously, but it means that Veritas will be able to proceed with discovery and try to prove that the newspaper’s reporters and editors acted with “actual malice.” That means they knew their stories were false, or realized they were likely false, and printed them anyway.”