The landmark 1964 Supreme Court decision New York Times Company v. Sullivan shaped libel and defamation law and established constitutional principles that still govern the scope of press protections in America today. The “actual malice” standard established in the decision requires a public official suing for defamation to prove that the newspaper published a false statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” This made it harder for news publications to be sued for libel; yet it also made it more difficult for those defamed to seek redress. Recently, Supreme Court Justices Gorsuch and Thomas in separate opinions have each called for Sullivan to be revisited. Host Jeffrey Rosen moderated a debate over the importance of the Sullivan case and whether or not it should be reconsidered—featuring experts RonNell Andersen Jones, professor of law at the University of Utah and an Affiliated Fellow at Yale Law School’s Information Society Project, and David A. Logan, professor of law and former dean at Roger Williams University and author of an article cited by Justice Gorsuch in his opinion questioning Sullivan.
In this episode you’ll also hear audio from the Supreme Court oral argument of New York Times v. Sullivan, courtesy of Oyez.
FULL PODCAST
This episode was produced by Jackie McDermott, and engineered by Jackie McDermott and Kevin Kilbourne. Research was provided by Alexandra “Mac” Taylor, Olivia Gross, and Lana Ulrich.
PARTICIPANTS
RonNell Andersen Jones is an Affiliated Fellow at Yale Law School’s Information Society Project and the Lee E. Teitelbaum Endowed Chair and Professor of Law at the University of Utah S.J. Quinney College of Law. A former newspaper reporter and editor, Professor Jones teaches, researches and writes on legal issues affecting the press and on the intersection between media and the courts.
David A. Logan is a Professor of Law at Roger Williams University School of Law where he was previously Dean. In November 2019, he was appointed as an Adviser on the new American Law Institute (ALI) Restatement of the Law Third, Torts: Defamation and Privacy. He is the author of the recent article Rescuing our Democracy by Revisiting New York Times v. Sullivan, which was cited by Justice Gorsuch in his opinion in Berisha v. Lawson.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- New York Times v. Sullivan (1964):
- David A. Logan, "Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan"
- RonNell Andersen Jones, "Enemy Construction and the Press"
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Jeffrey Rosen: I'm Jeffrey Rosen, President and CEO of the National Constitution Center and welcome to We the People. A weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. The 1964 Supreme Court decision, New York Times versus Sullivan shaped libel law and freedom of the press under the First Amendment.
Recently, Justices Thomas and Gorsuch have called for the decision to be reconsidered. Here to explore the argument on all sides of whether or not New York Times versus Sullivan should be reconsidered are two of Americas leading First Amendment experts and scholars in the case. RonNell Andersen Jones is an Affiliated Fellow at Yale Law School's Information Society Project and the Lee E. Teitelbaum Endowed Chair and Professor of Law at the University of Utah S.J. Quinney College of Law. She was previously a newspaper editor and reporter. RonNell, it is great to have you on the show.
[00:01:09] RonNell Andersen: Hi, great to be here.
[00:01:10] Jeffrey Rosen: And David A. Logan is Professor of Law at Roger Williams University School of Law where he was previously dean. He's the author the recent article, Rescuing Our Democracy, by revisiting New York Times versus Sullivan which was cited 16 times by Justice Gorsuch in his opinion questioning New York Times versus Sullivan. David, thank you so much for joining and congrats on all those citations.
[00:01:35] David A. Logan: It's my pleasure.
[00:01:36] Jeffrey Rosen: Well, David, since you were cited so often in Justice Gorsuch's recent opinion in the Berisha versus Lawson case decided on July 2nd, calling for New York Times v Sullivan to be overturned, please tell us what Justice Gorsuch argued in his separate opinion cited in your article.
[00:01:58] David A. Logan: Well, I'm gonna begin by dissenting from your description. I don't think he calls for New York Times v Sullivan to be overturned, if overturned means rendered nugatory and no longer good constitutional law. Whether, whether he's taking a view that I, I obviously endorse which is it's now time, 50, 60 years after New York Times v. Sullivan in a fundamentally different political environment and a fundamentally different media environment to ask whether the many ways in which New York Times v. Sullivan was extended beyond the original unusual facts in the case to reach many, many situations that I'm confident th- the Supreme Court back then would never have dreamed would be covered by the U.S. Constitution.
And secondly, cites research that I've dug up which shows that basically libel law is essentially dead in this country. That it serves almost no purpose in deterring falsehoods. And that, that consequence was also almost certainly not the intent of the court back in 1964 when they decided this very important case. So, it's basically sort of a two-pronged argument.
Prong one is, should precedents that were build in a completely different media era be automatically continued into the indefinite future or should they be reevaluated in some respects in the current media and political environment? And two, should the fact that we see that libel law basically have, has almost no deterrent effect anymore, at least in many, many situations and lies are swamping our democracy. Whether or not, for those reasons we should also take a look at the New York Times v. Sullivan and the subsequent cases, which I call the ecosystem of New York Times.
[00:03:44] Jeffrey Rosen: Thank you very much for that. RonNell, David raises an important question about whether Justice Gorsuch is calling for New York Times to be overturned, limited or reexamined. He says that it's less clear how well Sullivan and its extensions serve it's intended goals in today's changed world and I cannot help but think the court would profit from returning its attention, whether in this case or another to a field, so vital to the safe deposits of our liberties. Justice Gorsuch definitely does emphasize the change media environment and contrast our fact checking free world of the internet with a world of the 1960s when the New York times and fact checkers and broadcast networks ruled the airwaves with a near monopoly on attention.
Tell us more about the changed facts that Justice Gorsuch identifies in his opinion, and whether you think he's calling for the decision to be overturned, limited or reexamined in some other way.
[00:04:40] RonNell Andersen: Yeah, I, I think we don't know what Justice Gorsuch would like to do. He w-what we know is that he would have liked to have taken this case. [Laughs] He dissented from the court's refusal to hear the case. He would have taken the case and thought that it was important in light of these changed circumstances that he identifies for the court to re-examine Sullivan and its progeny and where, which portions of that he would tinker with and throw out I think he hasn't said. In fact, he was careful to say, yeah, you know, he has a lot of questions and not all of the answers but that he thinks that the court should go back to this line of doctrine and do some thinking about it in, in light of these changes.
I think at the set of changes that he's pointing to focus really on the changed media environment. One set of the changes David mentioned focus on rampant disinformation. The sort of wide spread ecosystem of lies that spread particularly via social media. The ease with which everyone can become a publisher and everyone can become a distributor of both truthful and untruthful information. And that change the, the sort of threat to democracy that exists because of that ease of online rampant disinformation seems to be a source of concern for Justice Gorsuch.
A second set of concerns has to do with how one becomes prominent enough to be held to the strict standards that New York Times versus Sullivan establishes. How one becomes a public official or a public figure. And those were less slippery concepts arguably at the time that Sullivan was decided. When fame and notoriety and your ability to access avenues of counter speech were dictated by the media environment that was more constrained. In the current environment Justice Gorsuch's argument goes more people can become "famous" well-known public figure public fig-achieve public figure status by virtue of thrusting themselves into an, a conversation that might be happening in some sub corner of our media environment, but not more broadly. And that's a second avenue of changed media environment that he thinks warrants a reconsideration of either Sullivan or its progeny.
[00:06:58] Jeffrey Rosen: Thanks so much for that. There was another dissent from the denial of assert in the Berisha versus Lawson case from Justice Thomas. He amplified, on a similar opinion he had filed in 2019 in the McKee versus Cosby case. In that case, a petitioner Catherine McKee who accused Bill Cosby of forcibly raping her 40 years earlier argued that she had been defamed by the publications of a letter deliberately leaked about her personal background and applying New York Times versus Sullivan, the case was dismissed. Justice Thomas in that case, said that New York Times versus Sullivan clearly departed from the original understanding in the First Amendment. And he seemed pretty clearly to call for New York Times to be overturned.
He ended by saying, "We didn't begin by meddling in this area until 1964 in nearly 175 years after the First Amendment was ratified. The states are perfectly capable of striking acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm." David, can you tell us what Justice Thomas argues that the original understanding of the First Amendment requires? What was the common law of libel before New York Times versus Sullivan, and what does Justice Thomas want to return to?
[00:08:15] David A. Logan: Well, look, let me start with the, sort of the second question, because I think it's important and RonNell may disagree on this. But as I read Justice Thomas's at least the most recent opinion he is of course saying, I want to take one of these cases. So he is not a big fan of the New York Times v. Sullivan line of cases. That's for sure. But his main point, as I understand it is that the, besides the idea that libel law was with us when the country was founded, when the First Amendment was ratified and was applied really, without any doubt that was unprotected speech, that false falsehoods were unprotected speech. Really, almost all the way into the 1960s, it had never been seriously argued that the First Amendment protected liars. That just wasn't a, a viable argument. But New York Times v Sullivan did that, but it did it in a very important, and I think measured way.
which is, the case involved false statements about a political operative, the person who was in charge of the police department in Montgomery, Alabama, L.B. Sullivan. The particular allegations that were made were in w-was this another unusual fact, an advertorial, which was a full page ad in the New York Times signed by all sorts of luminaries, including L.R. Roosevelt, Harry Belafonte, Marlon Brando, that was trying to raise money for civil rights groups in the south. And it was submitted and the Times had a fact checker and they didn't check it at all. They said, oh, well, if Eleanor Roosevelt is a signatory, then it must be accurate.
So they ran it, they did it with no research on it whatsoever, and it turned out it'd have a number of false statements. Most of them pretty trivial and none of them really significant enough to really have an impact on anyone's reputation, but as part of the South's pushback on unattractive media coverage of how they were treating black citizens and civil rights workers, one of the strategies was to file law lawsuits. Libel lawsuits, if they could find any, even small error in these stories that and other things that were being published in the New York Times and the Atlanta Journal was giving a lot of coverage to it, plus the the broadcast media.
So it did contain false statements. Interestingly, and I think this is very important. The advertorial never named anybody. It said they did this, and they did that. L.B. Sullivan was never named in the advertorial, yet he brought the lawsuit. And you can do that under the common law, if the reasonable person in your community would think that the, they was really referring to you. So it was an unnamed person, a number of really fairly modest errors. And the jury came back with essentially the largest verdict in the history of the state of Alabama. And there were multiple other lawsuits in the pipeline against the Times and other media outlets following this particular conscious strategy to use libel law as a cudgel against unfavorable coverage in the national media.
And so when the case went to the Supreme Court, it prompted this wonderful advocate Herbert Wechsler, to make an analogy that was really powerful. I'm going to come back to Thomas in a second. But this was really what we call seditious libel. That is it's, it's a government authorized effort to punish somebody for criticizing government leaders. And as Brennan wrote in his majority opinion in New York Times, the s, the court of history has decided that seditious libel that is government allowing prosecutions, civil or criminal, for criticism of, of government is inconsistent with our, our constitution.
Justice Thomas, I think attempts to build on that by saying that the cases that have, that have come up in the last few years didn't involve anything remotely like New York Times v. Sullivan. They involved, for example, in the Cosby case, a woman who was dragged into a public controversy because she happened to make accusations against a very famous powerful man. And she basically can't protect her name because of New York Times v. Sullivan's extensions. And I can give you a laundry list of other examples, where I'm confident that if you would lay them in front of the Supreme Court in 1964, they would've said, no, these are really different than the facts of New York Times v. Sullivan, and we ought to have some different rules for those kinds of cases.
And so that's what Justice Thomas is saying. At a minimum, get rid of all these other cases that don't involve high public figures, and maybe go back and revisit New York times v. Sullivan at its core holding, which says, unless you make a conscious lie against a, a high powerful public official who is a policymaker, you can't win significant damages. That is what is the narrow view of New York Times v. Sullivan? I think it's possible that Thomas would be satisfied with limiting New York Times v. Sullivan's extensions, but too high public figures, but not overruling the case itself. But RonNelle I'm not sure you agree with that, but in any event it's certainly a far broader argument than Gorsuch's making a much more, Gorsuch making a much more surgical argument and in fact, capacious argument.
He says, "I do not profess any sure answers. I'm not even certain of all the questions we should be asking. But given the momentous change in the nation's media landscape since 1964, I cannot help but think that the court would profit from turning its attention in this case or another to a field so vital to our safe deposit of liberties." That's a far more cautious opinion.
[00:14:14] Jeffrey Rosen: RonNelle, we're now at New York Times v. Sullivan. Can you contrast very crisply the law before and after New York Times. Before Sullivan states had strict libel laws to protect individuals' reputations in their community. And those standards forced defendants to prove the truth of their statements completely and in all its particulars, which was a very high bar. New York Times instead adopted the actual malice standard for libel against public figures. Tell us more about what the standards were before New York Times and what the actual malice standard requires.
[00:14:52] RonNell Andersen: Yeah, that's right. Before Sullivan the tort law standard essentially just required, in most states, it's was state-based. The tort law standard essentially required that you, if you believed that you had been defamed prove only that you had been identified that the public, it had been published to some third-party, somebody else had read it and that it lowered your reputation and it was defamatory in nature. The truth of it or the falsity of it did not come into play in you making your case. Rather the entity that was accused of having libeled you could come forward and true and prove the truth of it in all its particulars, but you didn't have to prove the falsity of it. Nor did you have to prove any state of mind or any subjective awareness or subjective doubt, or even any negligence, any sloppiness on the part of the individual or entity who published the libel. Simply that it had happened.
And that's why as David described, these very minor errors, the kinds of errors that were contained in New York Times versus Sullivan were things like saying that Martin Luther King Jr had been jailed seven times when really he'd been jailed four times or saying that police had ringed to the campus when really they had maybe formed a square around it. When you were saying that they had protestors had sung one particular patriotic song when they had sung another. The important gist which was that public officials in the Jim Crow south were reacting with violence to the civil rights movement was accurate and was conveyed by this.
And that was the source of concern from the court here. That's why it constitutionalized for the first time the law of libel and said that there is a free speech component here. And I think Sullivan constitutionalized it because it was the first time that it had been presented with this this dynamic. And so it said particularly answering the question for folks who were situated like this, public officials, people that we've elected, who work for us and who we're going to have to assess the next time around when an election comes around. And later we extended this to public figures. People who also have great power and great access, opportunities for response and who have voluntarily thrust themselves into public conversations. Those powerful people the court said would now have to prove, they would have to prove falsity. And they would also have to prove this actual malice standard.
Actual malice is a standard that says that you bringing the suit have to show that the publisher of the allegedly libelous material knew it was false or acted with reckless disregard for its truth or falsity. It's a stiff burden. And, and the court made clear that it was a deliberately [laughs] stiff burden, for all of the incentive reasons that we just discussed. There was evidence that the states could not in fact be trusted to craft and enforce their own libel laws in speech and press protective ways without first amendment limitations. And the Sullivan fact pattern was sort of evidence to the court of the ways that officials could and would attempt to silence critics of official conduct from voicing their criticism, even though it was believed to be true. And even though it is in fact true because of doubt of whether it could be proved in court or a fear of the expense of having to do so. And that was what was motivating the court to set forth this First Amendment standard.
[00:18:03] Jeffrey Rosen: David in your article, which Justice Gorsuch cited, you note three main criticisms of the substantive changes wrought by New York Times. First, the sweep, second, the extent of the people it applies to and its redefinition of public figures and third, the procedural requirements for proving falsehood. As crisply as you can please sum up the three main arguments against the Time's actual malice standard.
[00:18:31] David A. Logan: Well, as you recognize, Jeff New York Times stands forward the actual malice standard, but as RonNelle said, there also were a lot of other sort of below the radar, except to lawyer's, changes that came out on New York Times as well. So for example, they said a, a public official who's not named can't sue and recover damages under the constitution, even if the statements are false. So that was, that was one change they made. Second change they made was as RonNelle said, they required the plaintiff to prove this highly difficult to prove actual lying standard or else the plaintiff failed.
Third as RonNelle recognized the burden of proof on truth or falsity was shifted. And that's a pretty significant practical matter to lawyers because as you mentioned, Jeff proving the truth or the, in all its particulars is pretty hard to do because facts can be slippery. And that doesn't even mention the difference between facts and opinions. And fourth, and this is important, and it goes back to the unique circumstance of that trial. The court in New York Time basically said, we're getting rid of the most, one of the most fundamental rules of the judicial system. Which is juries decide facts and judges decide law. And a fact is classically, the state of mind of the actor.
So for example, if the murder prosecution, the judge doesn't decide whether or not there was a cold, hard intent, that's for the jury. The same thing is true in civil actions, in almost all cases. Certainly tort cases. It's for the jury to decide the state of mind. Well, the New York Times decision said, you know, we can't trust juries to make these decisions without bias. And so going forward, all the decisions that flowed from New York Times now invites a reviewing court to overturn the decision of the jury, because the review in courts are given the final say into what a fact is and what a fact isn't. So that was another important change from New York Times v. Sullivan.
Because Jeffrey, frankly, a remarkable decision in not only its importance, but also the breadth and the number of changes it made to the way the law had been run for 170 years in this country, and really for hundreds of years beforehand in England.
[00:20:52] Jeffrey Rosen: Thanks so much for that. RonNelle New York Times after it came down was often celebrated as one of the high points of free speech jurisprudence in the 20th century. Tell us why supporters from Anthony Lewis, the great New York Times journalists to justices of many perspectives have said that New York Times was crucial for allowing vigorous criticism of public officials in the 20th and 21st century.
[00:21:18] RonNell Andersen: Yeah that's right. I mean Sullivan was unanimously decided. And in fact there were three justices in a group that thought that the actual malice standard didn't go far enough. That the First Amendment demanded even stronger protections in this space. And in parts of this, because Sullivan isn't just about protecting a free press, although it certainly is. It's also central to the operation of American discourse more broadly. Protecting the citizen's right to have robust conversations, to have robust conversations about matters of public concern. Certainly about elected officials, but also about other powerful people without fear of crushing damages.
I mean, there's, there's a reason that Donald Trump and other politicians hate the Sullivan standard, right? And have pushed publicly for what Trump called opening up libel law. It's a key way that we make sure that officials and other people in power can't silence their critics. And we are in some respects, alone in the world on this. It is it's a high watermark of American First Amendment jurisprudence. And really stands for this broader proposition that some falsity is inevitable in free debate. That you, you can, you have to protect some falsity in order to give breathing space for ongoing dialogue, rather than creating a situation in which people feel a chilling effect and won't come forward with the kinds of conversations that we need to have.
And provable truth is just sort of too great an onus to put on people who might well self-censor rather than get at an important gist that is crucial to a conversation on a matter of public concern. And David's right, I do disagree with him about where Thomas's position is on this. My read, I think the best read of both of the statements that Justice Thomas has now made in his dissent from denial of [inaudible 00:23:59] in these two cases, the 2019 McKee case, and this most recent Berisha one, he he would like to unwind the constitutionalization of libel law writ large. I think he can only be read as calling for that, that his vote would be to overturn Sullivan in its entirety and leave the states free to craft libel law as they wish without any first amendment of free speech or free press constraints on that.
And in fact has suggested, in both writings, that he thinks that public officials, those folks that were sort of at the core of Sullivan, the people that we elect and want to have conversations about and check at the ballot box are people whose reputations ought to be protected more rather than less. They ought to have more remedies for damages to their reputations under his originalist view of this. And that that is I think that would, that would work a massive shift. That would be a massive alteration to American style free speech to lose that.
[00:24:04] Jeffrey Rosen: David respond if you would, to the classical narrative, that the New York Times was indeed a triumph for free speech as embodied in Anthony Lewis' great 1991 book Make No Law and focusing on the actual malice standard itself. The standard view is without that the New York Times might've been bankrupted by the suit and far less powerful newspapers would be in even worse shape. So tell us why you think the actual malice standard was not correct even in 1964. And tell us about the alternative or analog test used by New York law, the Gross Irresponsibility test that you think might provide a better alternative.
[00:24:45] David A. Logan: Well, there's a couple of questions in there Jeff. I'll try and unpack them. First of all, again, I think it's important to distinguish the sort of seditious libel model that is a government agency here, the courts, being used to punish a critic of high officer of government. If Clarence Thomas has taken that position that, that we would completely revert to the common law in every single situation, including the outrageous facts of New York Times v. Sullivan, then he's going to be in a lonesome cowboy on the court. He's not going to be able to get any other votes to go with them. That is, that's a bridge too far by any serious conversation.
I think Gorsuch's opinion is far more measured. And as he, as I read, he's basically saying, let's have this conversation. Let's find a case where it might've gone too far and it will not be, I assure you a lawsuit that has all the, the horrible facts that faced the New York Times in front of a hostile white jury, a racist judge in Alabama in 1960. That's not that case is not going to be de-constitutionalized. On the other hand, why should a rape victim who defends herself in public be forced to prove actual malice? Why should a cop who is alleged to be engaged in graft, be required to show actual malice?
Those are kinds of cases where I'm confident had those been in front of the New York, the New York Times v. Sullivan court, they would have gone slowly in that direction. Maybe not at all and said, you know, the problems are really quite different between publishing false statements about high government officials and publishing false statements about cops on the beat. The big prejudice cop on the beat, you shouldn't lose your right to reputation. And that's effectively what happens when you're characterized as a public fisher, official or public figure.
The second question again, this is pretty technical down the weeds stuff that you're asking. But the actual malice standard as RonNelle correctly said, is very purposely set to be very difficult to meet. I mean, basically you've got to show that it was a knowing lie. That the person who was your source said, I'm lying and you go ahead and publish it anyway. As a practical matter, that describes almost nobody in the mainstream press. And probably doesn't describe a fair number of people on the internet who are pretty racy in their, in their use of arguments.
But the practical matter is if you're put in this public category, as the courts have read it over the last 40 years, you lose. New York has a different standard and this gets pretty complicated, Jeff, because under the New York Times regime states are free to give more protections to private plaintiffs than the constitution requires. So in New York if you're a person who's lucky enough to be called a private figure the Supreme Court of the United States said, you can win by proving your negligence and that's just not paying attention. That's not following up with the second phone call.
The New York courts said, no, we want to protect speech in New York, even more than that. And so we're not going to require actual malice unknowing lie, but we're going to require proof of a highly unreasonable behavior. And there's a number of courts, a number of cases that have fleshed that out. And it suggests that at least on the margins, that's an easier standard to satisfy than actual malice, but both of them are really robust protections for the press. And again, keep in mind, that's not the only array of protections that defendants get. They get these procedural protections and they get, as we haven't discussed yet, but some protections from damage awards that are inappropriate as well.
So New York Times v. Sullivan in summary, changed the subset of law of defamation, procedural law and the remedies of defamation. And all I'm saying just as Scorchers seems to agree is, let's revisit how far those have been extended.
[00:28:54] Jeffrey Rosen: Thank you very much for that. So we're now focusing on this substantive question. It does seem technical, but is it correct that it's important? Defenders of New York Times say that without the actual amount of standard, without requiring a knowing lie, it would be far too easy or people to suppress political discussion for small factual errors. The other end of the scale is a negligence standard. And then in between in the Goldilocks spirit, David suggests is requiring highly unreasonable behavior or a kind of gross responsibility. Do I have those three categories right and do you believe that it's important for the court to maintain the high actual malice standard in order to protect free speech?
[00:29:37] RonNell Andersen: Yeah. I mean, I, I think that the wider point that the courts have consistently come back to is the notion of making sure that we have this breathing space, right? And the question is in, in this admittedly very delicate balance between two sets of things that we value a great deal you know, freedom of speech and press on the one hand individual reputation, one's own goodwill in the community on the other hand. Trying to figure out what the constitution of the United States has to say about where that balance should be struck.
And at least as to these, this set of folks this set of folks who who have access to avenues of counter speech who voluntarily thrust themselves into the limelight. Folks who in the Sullivan case you know, sought public office and asked us to assess their ask us to assess their behavior who's who were paid by the taxpayer dollars and whose work within that space is on our behalf and in our name. The court said it's important for us to be able to have conversations without the publishing entity having to engage in the really complicated front-end analysis of whether they would face staggering damages on the basis of a mistake.
And certainly the various Alabama officials had filed almost a dozen libel suits against the Times seeking, you know, upwards of $6 million in damages. This was, this wasn't the only case. It was part of a coordinated campaign. And in fact at one point the New York Times did in fact, withdraw its reporters from that state for, you know, the better part of a year over concerns that it simply couldn't be certain that a Southern jury armed with too soft of a standard wouldn't use libel law as a tool to crush that conversation and to harm it so severely in such a financial way that it, that it couldn't move forward.
That's that's the calculation that the court took into consideration at that time. And there are all sorts of reasons in, in modern years, in recent years. Threats and actual suits defamation suits that have been wielded as a tool against news organizations to try to stifle their truthful news gathering that suggests that powerful public officials and powerful public figures are anxious to have a softened standard here in order to be able to use that tool in that way.
[00:32:11] Jeffrey Rosen: David, focusing on the actual malice standard, it's had critics since New York Times was decided in her review of Anthony Lewis' Make No Law: The Sullivan Case and the First Amendment, then professor Elena Kagan said that the obvious dark side of the Sullivan standard is that it allows grievous reputational injury to occur without monetary compensation or any other effective remedy. And she notes the story that Anthony Lewis tells him a member of the Washington state legislature who became the object of a false red baiting campaign and lost his seat. But the judgment in his favor was set aside cause of failure to prove actual malice.
If you were arguing before the court, as you may well be filing briefs in future cases, what standard would, do you think that the court should adopt in evaluating alleged libels to public figures?
[00:33:04] David A. Logan: Well, again, like Justice Gorsuch, I did in my article list all the possible changes that I could imagine supporting. But rather what I'm asking for is a dialogue. Let's have some of this conversation, which really hasn't been had. I think we now will agree the law has been viewed as totally settled in this area for 30 years, maybe 40 years. And the world has changed in, in many ways. And so the other piece of this that I just want to mention that RonNelle does identify, the interest in the balance between reputation and all the personal and professional consequences that can flow from false statements about a person and the need to have robust press.
But what I'm trying to slide in here is the New York Times line of cases has become so powerful and extended so far that it's harming our democracy. And if I were in front of the court and Gorsuch talked about this a little bit I wish he had talked about it more, but when we're balancing the equities here, it's not just a single person's reputation against the interest in a newspaper or magazine or website to publish information. The overall consequences of the regime have to be taken to consideration. And the overall consequences in my judgment has led to insufficient deterrence to, for people making false statements.
If you know, the person you're hammering is going to be considered a public figure and you don't actually set out to lie, but you can be reckless and indifferent and sloppy, and mean-spirited, you're protected. And if that's the standard that we use for public officials and certainly high public officials, I think that makes sense. But once we go to cops and firefighters and school teachers... And I mean, this was one of the most perfect things I've ever read. And you may know this story Jeff and RonNelle. But Alex Jones info wars alleged among other things, that the shootings at Sandy Hook were a set-up. They didn't actually occur. They were actors that were paid to try and push gun control legislation.
And so the parents of the Sandy Hook kids that were killed became active in anti-gun movements. And then they sued Alex Jones for various tort theories. And in order to prevail, they had to prove one, that their kids actually were killed. They had to prove the falsity of the statement. And so they had to hand to the judge embossed death certificates to prove the truth of their, the falsity of the assertions. And they had to prove that Alex Jones acted with actual malice. All because they were dragged in involuntarily into the debate about gun control. Why should they be salvaged with the New York Times line of protections? It just doesn't seem to me to be fair.
And if you can take a like that, I think Judge Gorsuch is saying we can have a measured conversation about whether Alex Jones deserves all these protections. And maybe we'll step back and say, well, leave behind actual malice for high government officials and have a highly unreasonable behavior standard for some others. And then finally ask the question about whether every single person who works in the government has to give up their reputation because they're considered a public, public official. That's what I'd be arguing.
[00:36:34] Jeffrey Rosen: RonNelle, David just argued that the actual malice standard might be retained in his view for a more narrow, entirely defined category of public officials. But the question of who counts as a public official could be reexamined. And indeed in the Gertz case in 1974 and in the Time v. Firestone case in 1976, the category of public figures was extended by the Supreme Court to include ordinary citizens who thrust themselves into the vortex of public discourse, to use Justice Powell's memorable phrase. Some argue that's the thing that should be reexamined and that ordinary citizens shouldn't become involuntary public figures merely by becoming talked about on the internet.
Do you believe that the question of who counts as a public figure should be reexamined? And in particular, that this test of thrusting yourself into the vortex of public debate should be reexamined so that not everyone is subject to the Times actual malice standard?
[00:37:32] RonNell Andersen: So I do agree that the space that the court is most likely to take our new media landscape into account and attempt to map old legal doctrine onto the new legal terrain is in this space of public figuredom. What what counts to make a person a public figure today. What counts as access to counter, to means of counter communication. What counts as fame, right? How how virality and the new social media internet landscape impacts all of that seems to be one of the most attractive draws for the justices who are pushing back here and also for the the critics of Sullivan and its line of the, the subsequent cases.
I, and I, I think more broadly Justice Gorsuch is tapping into some themes that scholars in this area have been lamenting for a while now, right? That the ease with which misinformation and disinformation can spread and the harm to individuals and democracy that can come from these new cheap, speedy, efficient distributors of lies, I think we absolutely have to tackle this threat of online disinformation. The hard question here for me is whether we're, the adjustments to the Sullivan doctrine that are being floated here are, are in fact, the right route for doing this sort of thing. Or whether there are real risks that the adjustments to this doctrine will actually compound rather than alleviate the problem of widespread social media disinformation that Justice Gorsuch and others are identifying.
There are lots of reasons to think that defamation is a sloppy tool for our societal problem of disinformation. On anonymous online posters of information an of disinformation are often outside the reach of a libel suit. That... If... They're, there, we don't know who they are. They are not entities that are sued because they're hard to find, and they're hard to sue and they're not worth suing because their expression is so extreme that it might be found to be hyperbole. Or most notably, they don't have enough assets to be worth going after in a long tedious time intensive tort suit.
The press in contrast, have deeper pockets. And therefore they have this target on their backs for the kind of legal intimidation situation that Sullivan addresses as a democratic impairment imperative. They also have libel insurance policies. And so it might be that online disseminators of disinformation just aren't as likely to be the defendants of libel actions in any event and we're, in some respects, barking up the wrong tree here. And I think to be sure those sweeping harmful lies that spread on social media are incredibly problematic and harmful, they're worthy of our time and our attention and our policy reform, but a major issue here is whether we're sort of throwing out babies with bath water.
And in our concern about the way that the new media landscape has altered the ways that we think about things like public figuredom, we're also saying the entire new media landscape is such a threat to democracy because of this disinformation, that Sullivan needs to be rethought more broadly. And it seems to me that the Sullivan standard and defamation law, more broadly, are not the sensible efficient tool for dealing with this. It seems deeply unlikely that the best mechanism we're going to use to solve our colossal online disinformation problem is expensive, time consuming, defamation litigation against the masses of social media, mob participants who are spreading it.
And so the worry here for me is that reconsidering Sullivan creates a vulnerability for those entities that are actually attempting to maintain some reputation for news gathering. I don't know any, I mean, I spend a lot of time with folks who work as general counsel in newsrooms and who represent journalists. I don't know any reputable news organization that sits back and says, you know, I won't. We will, we'll do best not to inform ourselves because that then no one can show actual malice on a standard. They're working hard to get to the bottom of the facts of particular cases.
And if Sullivan creates that vulnerability for entities that are working to do that for us that we desperately need at this moment, those sort of gatekeepers of trustworthy information with no real payoff in tackling the wider societal problem, that's driving that reconsideration, I have concerns about that.
[00:41:58] Jeffrey Rosen: Thank you so much for that. David, can you please respond to RonNelle's fascinating point that reexamining the New York Times public figure doctrine might be barking up the wrong tree. It would make very vulnerable, the remaining journalistic entities that are trying to maintain responsibilities for news gathering, who are financially imperiled and could be really harmed by a lower standard. At the same time, not really stopping disinformation much of which is anonymous or algorithmic. And also imperiling individuals who are now posting online. Bloggers for example, who don't have the pockets to respond to the kind of libel suits that the framers thought would be levied against the institutional press.
[00:42:39] David A. Logan: I think RonNelle makes the best case that you can make for doing nothing and letting the law remain it is, as it is. I don't think it's a convincing case, but it's a, it's a sensible case that I can see coming from somebody. You know, I was a music journalist as a younger man. My father was a journalist, so I, I'm not an outsider to the, the the need to protect ambitious, aggressive journalism reporting on the public affairs today. But I do think, and I think RonNelle would agree with me on this, that one of the things we haven't talked about that has had a negative impact on fact checking is the 24 hour news cycle. And this was alluded to by justice Gorsuch in his, his opinion.
At the time New York Times v. Sullivan newspaper had 6, 12, 14 hours to fact check something. A weekly magazine had a week. A monthly magazine had a month to fact check something. With the 24 hour news cycle and what the New York Times constantly needing to refresh its webpage to reflect breaking news. There's, they've put enormous pressure even on the most conscientious of media outlets to get it first, without necessarily getting it right. And this is a phenomenon that has accelerated over the last 20 years. And it's true, some newsrooms care more about that than others, and certainly online publishers, some care a little and maybe some care none about that. But it is now a fact of our world. That the new town square is the internet and the internet is driving getting information in and out the door without fact-checking even putting pressure on the most reputable of, of institutions.
The second point, again, responding to RonNelle is I don't think that we are in a situation where four members of the court would have the stomach to take on this iconic decision of New York Times, at least to the extent it, it covers you know, public officials, high public officials. But I do think that, and I'm not, you know, I have no crystal ball, but we have Elena Kagan's article she wrote when she was a law professor twenty-five years ago. And, and we have Justice Thomas who's been a warrior pushing in this direction for several years now. And now Justice Gorsuch who has turned out to be a relatively iconic classic justice on the court, not entirely predictable given despite his sort of conservative leanings, he's a really bright guy. And he's just saying, let's have this conversation.
Let's take a case that shows maybe the Times v. Sullivan has been extended too far. And in that case, we can nail down and show our present fealty to the core concepts of New York Times v. Sullivan that says that libel actions against high public officials should be almost impossible to recover. And I don't think that that would be an invitation to go and dismantle New York Times piece by piece.
One other thing though, Jeff, I think that's important and again, it's alluded to by RonNelle and that is there's no doubt about it, that even if libel law was fixed perfectly in some way, if I were the nine justice in the court, and I could find just the right balance of interest here, that this information on the internet is going to go away. She's absolutely right that the problem is much bigger than what goes, is printed on the web pages of newspapers and magazines and on the evening news. That said, the problem most everybody agrees is with Section 230 of the Federal Communications Decency Act, which says to Facebook and other platforms, you have no responsibility for what gets posted on your platforms. And that has, has been basically throwing gasoline on this fire.
And I would love Congress to come back and modify Section 230, but Congress can't even agree to fix potholes. So I'm not going to hold my breath that that, that remedy is coming soon. But I would love to see that. And if I had to rank, which ones were more important in the short term, I'd say Section 230.
[00:46:46] Jeffrey Rosen: RonNelle, David raises a series of other questions that might be relevant to stopping online disinformation, including reexamining Section 230. As you think about the effect of changing New York Times v. Sullivan, what does the international experience tell us? In Britain, Prince Harry famously called the First Amendment bonkers recently for allowing criticism of public officials like himself. In Britain, he threatens to Sue papers for similar criticism. Is speaks less free and disinformation less rampant in Britain and Europe, where it's easier to bring these libel suits? And, and what can the international experience tell us about reexamining New York Times v. Sullivan?
[00:47:26] RonNell Andersen: I think it's a really good question and it's a point that a lot of folks have made in suggesting that there would be no great harm to American democracy in scaling back the Sullivan protections or eliminating a Sullivan in its entirety. Because our, our fellow democracies in the world the, the Canadas and UKs of the world are thought of as a democracy enhancing and speech protective. Without this standard, I mean, the, the, the short answer is that those countries do not have a constitutional first amendment.
We we have, we have long since determined that American free speech and for us values will be elevated. That they will trump other competing values in a wide variety of ways. And, and, and we've decided this not just as a constitutional matter, but as a political matter. Congress in 2010 in an act called the Speech Act, a bipartisan Congress unanimously concluded passed a statutory provision that indicates that we, we will not enforce the libel judgements of those countries that do not recognize this Sullivan standard. That is that our our free speech norms here are constitutional norms and the value that we place on that protection from those who continued to perform that press function is important enough to us in our American style free speech framework, that that, that we will insist upon it.
And it's, it's a way that we've distinguished ourselves from the rest of the world, and it, it would work a fairly radical change to the American First Amendment scaffolding for Sullivan to be reconsidered.
[00:49:00] Jeffrey Rosen: Thanks so much for that. Well, it is time for closing arguments in this really provocative and illuminating discussion. David, the first one is to you. Tell we the people, listeners, why you agree with Justice Gorsuch that New York Times should be reconsidered in light of new technologies.
[00:49:19] David A. Logan: A functioning democracy must have a basic consensus on what is real and what is fake and the way it makes such determinations. This was recognized decades ago by philosophers people who really think hard about how democracy works and New York Times v. Sullivan and it's bold re-imagining of the First Amendment protections has played a really fundamental positive role in encouraging robust debate in our country over the last 55 years. That said, the extension is beyond New York Times are far less convincing to me. And as Justice Gorsuch said, in his opinion, should we have a conversation about this? New York Times line of cases is not written in stone. The constitution, this is a, this is an evolving document, contrary to what Clarence Thomas says, and shouldn't the First Amendment be at least cognizant of a changed democracy and a changed media environment as we go forward?
And I don't think he's saying, or am I saying there's any specific silver bullet here in libel law, but just saying don't touch the New York Times line of cases because they're sacrosanct is not in my judgment and his judgment the right way to go to try and find the right balance between robust press personal reputation and our democracy.
[00:50:42] Jeffrey Rosen: RonNelle, the last word is to you. Please tell we the people, listeners, why you think on balance that reexamining New York Times is not the best way to deal with disinformation in an age of new technologies.
[00:50:55] RonNell Andersen: I, I think it'll always be true that we have to map old legal doctrine onto new factual terrain. And this might in fact be particularly true in this area of media law and First Amendment analysis, where the ways that we communicate about each other and with each other shift significantly from generation to generation. And scholars and commentators in this space have been saying for a while now that it's really important to think carefully about how principles announced in the old media era should apply to the new media age. But there's a difference between on the one hand, sort of assessing how our long standing doctrinal principles play out in the latest factual scenario and on the other deciding to adjust or throw out those principles on the basis of these new dynamics.
And I think one thing the court is really going to have to deal with in this space is how to walk that line. Preserving the core First Amendment precedent and the values that undergird it, while ideally offering principles that have staying power, even when the, the tools and the means of communication continue to change. And not feeling that the threat of a particular concern that we have on deck. For example, most notably massive online disinformation upsets the apple cart so significantly that we rethink doctrine that has been designed to be protective of the democracy.
Among the things that a functioning democracy has is a mechanism that makes sure that there cannot be successful efforts by public officials and other powerful people to use defamation lawsuits and really the bare threat of defamation lawsuits to try to punish and deter truthful news reporting. And that has increased in modern times. If anything, we need to be thinking more critically about how to make sure that we protect that flow and that press function in our changing times in order to preserve the democracy as we as we appreciate it.
[00:52:45] Jeffrey Rosen: Thank you so much David Logan and RonNelle Anderson Jones for a robust uninhibited and wide ranging discussion of New York Times. And for illuminating, we, the people listeners about the fascinating technological legal and social changes that the court will grapple with as, as it decides whether or not to re-examine this landmark constitutional decision. David, RonNelle, thank you so much for joining.
[00:53:14] RonNell Andersen: Thank you.
[00:53:14] David A. Logan: Thank you.
[00:53:17] Jeffrey Rosen: Today's show was produced by Jackie McDermott and engineered by Kevin Kilbourne. Research was provided by Mac Taylor, Olivia Gross, and Lana Ulrich. Please rate, review and subscribe to We The People on Apple podcasts and recommend the show to friends, colleagues, or anyone anywhere who is eager for a weekly dose of constitutional illumination and debate. And always remember that the National Constitution Center is a private nonprofit. We rely on the passion, the generosity, the engagement, the devotion to lifelong learning, the openness to arguments of all perspectives from people from across the country who are inspired by our nonpartisan mission of constitutional education and debate.
You can support the mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount of a dollar, $5, anything just to signal your support for our work, including this podcast, theconstitutioncenter.org/donate. We really appreciate those small donations as a sign of your engagement with our crucially important mission. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
