Florida Gov. Ron DeSantis (R) speaks at the ‘Unite and Win Rally” in support of Pennsylvania Republican gubernatorial candidate Doug Mastriano at the Wyndham Hotel on Aug. 19, 2022. (Photo by Jeff Swensen/Getty Images)
Next year will mark the 60th anniversary of the landmark case New York Times Co. v. Sullivan, yet despite the extraordinary impact it has had on public figures, defamation lawsuits, and freedom of speech, calls to revisit the Supreme Court’s decision are intensifying.
The landmark case, which held in 1964 that if a plaintiff in a defamation suit is a public figure—particularly a public official or a candidate for public office—he or she must meet the higher standard of proving actual malice in order to make their case. Implementing the more significant burden of actual malice, meaning the party sued knew the statement they made was false or recklessly disregarded whether it might be false, afforded greater ability for journalists to report on individuals in the public sphere. It also simultaneously made it more difficult for public officials to utilize defamation claims to suppress valid political criticism.
Yet these past few years have seen politicians and even judicial figures calling on the Supreme Court to revisit the momentous decision, which would chip away at protections afforded to journalists and the ability to legitimately question officials running for public office.
Earlier this month, Florida Gov. Ron DeSantis (R) hosted a roundtable discussion with legal experts and media members to discuss the impact of “media defamation.” These concerns for DeSantis stem back to last year, when his staffers began working on a proposal that sought to challenge the rhetoric of Sullivan.
While the proposition did not make it into the 2022 legislative session or into the format of a bill, it reflects the general sentiment of many Republicans who believe the existing set of libel laws are too lenient towards media outlets. Some Supreme Court justices have echoed these concerns. Justice Clarence Thomas dissented in a case last year, stating he would like the rest of the Supreme Court to reconsider the Sullivan decision.
The proponents behind this change claim many benefits would arise from chipping away at or even overturning Sullivan. Firstly, some argue that it would make suing media outlets for defamation significantly easier, allowing a chance for individuals in the public eye to initiate legal action for coverage they deem to be false and damaging.
For decades, the burden for public figures attempting to prove defamation has been significantly high–in fact, many legal experts opined on the 2022 defamation trial of Johnny Depp against his ex-wife Amber Heard regarding comments she made in an opinion piece for The Washington Post, stating that prior to the verdict that they doubted Depp would be able to meet the difficult standard required to prevail.
When Depp did win the trial, many legal commentators were surprised, as public figures such as well-known politicians or famous celebrities are entitled to a lesser degree of privacy than private citizens, hence the requirement of demonstrating actual malice.
Secondly, many believe that a push against Sullivan would result in greater protection for public figures, as they would have an easier ability to sue press outlets without having to provide additional proof.
Finally, many advocates for revisiting Sullivan state that lessening the burden to pursue claims of defamation would help to eliminate disinformation, a growing trend in which false information is posted publicly, many times via social media and other platforms, making it easier to disseminate news quickly and widely.
Yet for as many benefits being promoted in reconsidering Sullivan, there are just as many advocates supporting Sullivan to remain as the precedent for affording First Amendment protection to journalists all across the country. Many state that challenging Sullivan would prevent journalists and the press from legitimately questioning and criticizing politicians or political candidates running for significant leadership positions. Further, if reporters and news outlets become more prone to being sued by public figures for defamation claims, then the mass media in general would likely be less willing to inquire and report on the actions of public figures, particularly those elected to public office.
Finally, there are many who are concerned that if Sullivan is overturned, that would mark only the beginning of setting future precedents that would make the job of journalists even more difficult, thereby denying the public access to truthful and legitimate reporting.
In June 2022, requests were made to the Supreme Court to revisit Sullivan, of which Justice Thomas opined he would be open to reviewing the actual malice standard. This sentiment had been long growing—in 2021, Justice Thomas and Justice Gorsuch advocated revisiting the case, a move which reflects the changing dynamic of the Supreme Court and what decisions may come in the future. Now, the Supreme Court has the most conservative make-up that it has had in 90 years, and some believe that a reconsideration of Sullivan and the legal shield for journalists is imminent.
As soon as Tuesday of this week, the Supreme Court will have an opportunity to reconsider a distinct but related issue in Gonzalez v. Google LLC: Section 230 and immunity for internet companies from liability for content posted by third parties on their platforms.
New York Times v. Sullivan was decided nearly 60 years ago, when the landscape of the press was extremely different and the world of social media, citizen journalism, and access to instant information was nonexistent. Over the years, journalists that are a part of the ever-changing media have still been able to reasonably rely on Sullivan in order to report on breaking news, uncover stories of corruption, illegal acts, or misbehavior, and to even legitimately call the actions of politicians into question.
Regardless of which side of the argument one falls on, backtracking on Sullivan and making lawsuits more likely would undoubtedly make this type of reporting more difficult all across the board, potentially depriving audiences across the world of critical information that is directly in the public interest.
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