New York Times v. Sullivan is wrong for the social-media age

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New York Times v. Sullivan is wrong for the social-media age

Postby admin » Fri Jul 09, 2021 3:48 am

Gorsuch Critique of Landmark Libel Case Should Be Taken Seriously: A conservative Supreme Court justice invokes a liberal colleague to argue that New York Times v. Sullivan is wrong for the social-media age.
by Noah Feldman
Bloomberg Opinion
July 7, 2021, 6:00 AM MST



Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

In a sign of hard times for traditional free-speech values, U.S. Supreme Court Justice Neil Gorsuch has added his voice to that of Justice Clarence Thomas in calling for a re-examination of the landmark 1964 precedent of New York Times v. Sullivan — the case that makes it extremely difficult for public figures to win libel suits.

Thomas’s view, first expressed in 2019, was that the press protections established by Sullivan violated the original intent of the First Amendment. It was inconsistent with his own free-speech jurisprudence, and was therefore unlikely to garner support from other justices.

Gorsuch’s opinion last week, in contrast, focused on the up-to-the-minute problem of misinformation in the age of social media. Gorsuch’s concerns aren’t trivial or ideological. He quoted a 28-year-old old essay in support of them written by his Supreme Court colleague Elena Kagan when she was a law professor. Gorsuch’s opinion raises at least the possibility that other justices might be open to rethinking the question of public-figure libel.

In the Sullivan case, the court held that when a public official sues someone for libel, it isn’t enough to show that the challenged statement was false and defamatory, which is all that a regular person would have to show in such a lawsuit. The public official has to show that the false and defamatory statement was made with “actual malice,” meaning that the person who made it either knew it was false or recklessly disregarded its falsehood. In subsequent cases, the justices extended the Sullivan rule from public officials to all “public figures,” a category that the court has never pinned down precisely but that extends well beyond the most famous celebrities.

Needless to say, established news organizations love the Sullivan decision and usually treat it — justifiably — as a landmark of American free-press protection. The case insulates reporters and editors and the companies they work for from being constantly threatened with libel suits by public figures who are annoyed with how they are being covered. Without the precedent, the media would have to be prepared to defend factual assertions in court, a difficult task that could expose anonymous sources, undermine good-faith decision-making and intimidate all but the strongest journalistic institutions. With it, a media defendant in a libel case brought by a public figure can just say plead ignorance of reporting a falsehood, even if it got the facts wrong.

Gorsuch’s critique of Sullivan rests on the idea that since 1964, “Our nation’s media landscape has shifted in ways few could have foreseen.” The decline of legacy media and the rise of social media, Gorsuch argued, has led to a rise in misinformation. Gorsuch pointed out, correctly, that fake news is much cheaper to produce than real news — and that anyone can do it. The editors and fact checkers of legacy media are “disappearing,” he wrote.

In this environment, Gorsuch proposed, the Sullivan precedent creates a perverse incentive not to check facts — so that you can later say that you didn’t realize what you were saying was false. He threw in the concern that today, everyone is a public figure to some degree or another, making libel suits harder for everybody.

The upshot, for Gorsuch, is that the Sullivan rule no longer serves its original objective of creating an informed public debate.

In a touch that might sound cute but is actually significant, Gorsuch invoked Kagan. He quoted an essay that she wrote in 1993 while an assistant professor at the University of Chicago, reviewing a laudatory book about the Sullivan decision by the journalist Anthony Lewis. In it, Kagan noted that the actual malice standard might have the unintended effect of promoting not only true but also false statements of fact — “statements that may themselves distort public debate.” Thus, Kagan, concluded, “the legal standard adopted in Sullivan may cut against the very values underlying the decision.”

The power of Gorsuch’s opinion is to suggest that Kagan’s concerned prediction from almost 30 years ago has come to pass under the conditions of social media misinformation. Although Kagan did not join Gorsuch last week, she is likely to consider his point germane. The Sullivan rule does have costs and benefits — and that means the court should be considering whether the balance has changed in a new media ecosystem. The fact that Gorsuch could quote Kagan underscored the non-ideological nature of the issue.

Part of the theory behind Sullivan’s reasoning was that public figures can overcome false, defamatory statements about themselves relatively easily, even without defamation suits. Today, it has become harder for such stories to be shunted aside. In Thomas’s own separate opinion, in which he added some non-originalist concerns, he mentioned as a case in point the 2016 shooting inside a Washington pizza parlor inspired by a fantastical conspiracy theory circulating online.

What’s more, non-celebrities who might still be deemed public figures under current law are vulnerable to false, defamatory online attacks. Sullivan makes it very hard for them to vindicate their concerns about their own reputation.

The conclusion is that it no longer seems inconceivable that the court could revisit New York Times v. Sullivan. If that happens, the debate will be fought in terms of whether changes since 1964 mean that the precedent is no longer achieving its own objectives.
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Re: New York Times v. Sullivan is wrong for the social-media

Postby admin » Fri Jul 09, 2021 4:16 am

Justices Gorsuch and Thomas call to revisit landmark First Amendment case New York Times v. Sullivan
by Ariane de Vogue
CNN Supreme Court Reporter
Updated 11:13 AM ET, Fri July 2, 2021

(CNN)Justices Clarence Thomas and Neil Gorsuch on Friday said the Supreme Court should revisit the breadth of the landmark First Amendment decision in New York Times v. Sullivan and explore how it applies to social media and technology companies.

That 1964 ruling created a higher bar for public figures to claim libel and has been a bedrock of US media law, but the two conservative justices said it's time to take another look.

"Since 1964," Gorsuch wrote Friday, "our Nation's media landscape has shifted in ways few could have foreseen."

He added that "thanks to the revolutions in technology, today virtually anyone in this county can publish virtually anything for immediate consumption virtually anywhere in the world."

Gorsuch and Thomas wrote as they dissented when the court declined to take up a case from the son of a former prime minister of Albania who claimed several statements were defamatory in a book that was later turned into the Hollywood film, "War Dogs."

Friday was the first time Gorsuch, a nominee of President Donald Trump, joined Thomas' consistent calls to look at the historic ruling.

"Not only has the doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted," Gorsuch said.

He added that previous tests courts have used "seem increasingly malleable and even archaic when almost anyone can attract some degree of public notoriety in some media segment."

Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law, said Gorsuch's public move "is a pretty big deal."

"Sullivan provides crucial protection of the independence of news outlets, whose reporting might otherwise be chilled, even for accurate stories, if it were easier to sue them for defamation," Vladeck said. "The more justices who look poised to potentially revisit that precedent in the coming years, the more alarming Justice Thomas's previously idiosyncratic critiques become."

Thomas said that the court's earlier pronouncements that the First Amendment "required public figures to establish actual malice bears no relation to the text, history or structure of the Constitution."

"The proliferation of falsehoods is, and always has been, a serious matter. Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires," he wrote.

Thomas often plants seeds on issues he thinks should attract more attention from his colleagues.

In 2019 he, alone, urged the court to take another look at New York Times v. Sullivan calling it a policy-driven decision "masquerading as constitutional law." He has also suggested that Congress should consider whether laws should be updated to regulate social media platforms that he said have come to have "unbridled control" over speech.

Albanian brought First Amendment challenge

The case the court rejected Friday was brought by Shkelzen Berisha, a resident of Albania and son of a former prime minister. He sought to challenge several statements that he said are defamatory in a book called "Arms and the Dudes: How Three Stoners from Miami Beach Became the Most Unlikely Gunrunners in History." It was later turned into the Hollywood feature film "War Dogs" starring Jonah Hill and Miles Teller.

The book says that Berisha met with "dudes" in Albania to arrange the delivery and repackaging of munitions.

In court papers, a lawyer for Berisha argues that the " petition presents an important constitutional question: should the First Amendment continue to shield from liability publishers of false defamatory statements merely because the subject of these statements is deemed a 'public figure' and cannot show that they were made with actual malice."

Lawyers for the authors and their publishers say that Berisha has "100% name recognition" in his country.

"In 2008, it was widely reported that he was part of an arms dealing cabal within the Albanian government involving state-owned weapons" they said and added that the "same cabal reportedly defrauded the U.S. government by setting up a kickback scheme through which Petitioner and others profited from the sale of Albanian ammunition stockpiles needed to equip the Afghan security forces."

They said that there is "no question" that Berisha is a public figure under current law and that he cannot establish actual malice "because the book's reporting was informed by voluminous news reports" about his "corrupt activities."

A district court ruled against Berisha holding that he is a "limited public figure" and that he had to demonstrate actual malice to prevail in his claim.

CNN's Veronica Stracqualursi contributed to this report.
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