But the Media Law Resource Center wasn’t content to leave things there. In a recently released white paper on the debate over Sullivan, the nonprofit group for media organizations and their defense lawyers stacked up refutations to the main planks of the Thomas-Gorsuch argument. Titled “New York Times v. Sullivan: The Case for Preserving an Essential Precedent,” the report clocks in at roughly 200 heavily footnoted pages. Its message to the high court is unmistakable: Watch what you say about our beloved libel doctrine.
That doctrine stems from a 1964 Supreme Court decision that established the “actual malice” standard. Public officials, according to the opinion by Justice William J. Brennan Jr., must clear a higher evidentiary bar when they bring defamation suits; unlike private individuals, they must prove that a false statement was made not just in negligence but with knowledge of its falsity or with “reckless disregard” for its veracity. The court later extended the requirement to a larger class of “public figures,” cementing a climate conducive to aggressive journalism on all matters of public interest.
Here was a judicial precedent geared, by definition, toward scrutinizing the powerful, be they Republicans or Democrats, moguls or overpaid athletes. Perhaps the greatest homage ever paid to the doctrine came from former Fox News host Bill O’Reilly. “We have a system whereby famous people cannot sue because they are public figures. That is harming our country dramatically,” whined O’Reilly in 2011, back when the multimillionaire had a top-rated cable-news show during which he could rebut any claim uttered against him.
Poor famous people. The contention, moreover, that they “cannot sue” for defamation is a prime target of the MLRC report. On this front, O’Reilly has company. In Gorsuch’s Sullivan warning shot, he wrote that, “over time, the actual malice standard has evolved from a high bar to recovery into an effective immunity from liability.” That claim rests on MLRC statistics showing a drop since 1980 in media libel cases that have gone to trial.
Not so fast, Justice Gorsuch. That decline, MLRC points out in its report, aligns with the general decrease in all civil trials in recent decades: “Trials have been largely replaced by settlements, facilitated by expanded mediation and … other factors that incentivize the risk-averse strategy of avoiding trials.” And the group gathered new data indicating that the number of media libel cases — as opposed to trials — has actually gone up in recent years.
That’s just the beginning of the debunking expedition. Herewith, a breakdown of other Gorsuch-Thomas arguments challenged by MLRC:
Gorsuch: “Today virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world,” wrote the justice in his opinion last summer. The argument here is that Sullivan was premised in part on making room for “dissenting or critical voices.” But in a world where “everyone carries a soapbox in their hands,” what’s the point?
Gorsuch: In the days of Sullivan, “comparatively large companies dominated the press, often employing legions of investigative reporters, editors, and fact-checkers.” Nowadays, technology has made everyone a publisher.
MLRC: As for “comparatively large companies,” consider the two hedge funds that control more than half of U.S. daily newspapers — not to mention the behemoths (Comcast, AT&T, Viacom, Disney, Fox Corp.) that sit atop network and cable-news outlets.
Thomas: Consistent with his originalist judicial philosophy, Thomas bashed Sullivan as an activist enterprise. “This Court’s pronouncement that the First Amendment requires public figures to establish actual malice bears ‘no relation to the text, history, or structure of the Constitution,’” Thomas wrote last year. And in 2019: “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”
MLRC: No, Sullivan didn’t just occur to Justice Brennan in the shower. In a detailed chapter of the report on the history of media law, legal scholar Matthew Schafer traces the themes of Sullivan through the centuries.
One of the cases in this analysis — Commonwealth v. Clap, an 1808 Massachusetts case — is particularly compelling to modern sensibilities. The defendant was indicted for criminal libel after posting public notices claiming that auctioneer Caleb Hayward was “a liar, a scoundrel, a cheat, and a swindler. Don’t pull this down.” At that time, proving that Hayward was, in fact, a liar, a scoundrel, a cheat and a swindler didn’t constitute a defense. True statements could be libelous.
But the court’s opinion contained forward-looking language: “When any man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his character in issue. … And publications of the truth on this subject, with the honest intention of informing the people, are not a libel.”
That’s one of the glimmers of Sullivan-esque thinking in early U.S. libel cases, Schafer argues. What’s more, Schafer raps Thomas for drawing the wrong lesson from the case. In his 2019 opinion attacking Sullivan, Thomas contends that centuries ago, defamation of public officials was “more serious and injurious than ordinary libels.” He cited Clap to substantiate the point: “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.’”
Wrong interpretation, writes Schafer, who argues that Clap “did not find false statements ‘most dangerous’ because … officials were inherently deserving of more protection than others. Rather, it found false statements unprotected because of their tendency to undermine republican debate.”
Thomas: Thomas has repeatedly cited William Blackstone, an 18th-century English lawyer and author of “Commentaries on the Laws of England,” to support contentions about “what a plaintiff traditionally had to prove to maintain a defamation action, the allowed defenses, the existence of criminal libel laws, and that libels against public officials were treated more seriously than other libels at common law.”
MLRC: Don’t be too quick to credit Blackstone. “Founders like Thomas Jefferson and James Wilson hated Blackstone,” writes Schafer. Now there’s some actual malice.
It’s no wonder that such a zealous defense of Sullivan would come from a group of media defense lawyers, for whom the doctrine is their professional lifeblood. “In short, the actual malice standard encourages responsible journalism, and provides important protections if an honest mistake is made — which is exactly what it ought to do,” reads the report.
It’s unclear whether this pushback operation will come into play anytime soon. Thomas and Gorsuch need two additional justices to join them in seeking a reconsideration of Sullivan. Should that circumstance arise, perhaps the two justices will be forced to address the only holes in their arguments — namely, that they botch the present and the past.