At Law & Liberty, Glenn Reynolds: Sullivan Revisited. From the introduction:
Is New York Times v. Sullivan, the case in which the Supreme Court sharply limited libel suits by public officials—a group later expanded to “public figures”—now on shaky ground?
Not long ago that would have been unthinkable. But nowadays, particularly in the wake of a stiff and scholarly Clarence Thomas dissent in McKee v. Cosby, it’s become so thinkable that people are thinking it, and writing about it, and even publishing books about it.
The book in question is Carson Holloway’s No Liberty to Libel: The Constitutional Case against New York Times v. Sullivan. Holloway’s book is a closely reasoned polemic against a decision that is wildly popular with the media and intelligentsia, but that has always been, in terms of actual law, on shaky ground.
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The case of course wound up before the Supreme Court, with Sullivan’s lawyer, Harvard-educated Roland Nachman, saying that the only way for him to lose was for the Court to change the law.
And that’s exactly what happened: In a unanimous opinion authored by Justice William J. Brennan, the Supreme Court changed the law. (Anthony Lewis reports in his book on the case, Make No Law, that Justice Harlan joined at the last minute, despite deep doubts, to keep from fracturing the Court’s stance.) Deciding that the libel law of the past 150-plus years offered too much power over national media to local officials (and juries), the Court established a new rule: Where a public official claimed libel, he/she would have to show that the publisher acted with “actual malice,” meaning knowledge of falsity, or a “reckless disregard” as to whether the report was true or not. The “actual malice” standard was an entirely new invention of the Court, and wasn’t even argued by any of the parties. Brennan chose that standard because he knew the Times would lose on a negligence standard, since it had in fact been negligent. Brennan tried to make the actual malice standard sound like a rule that already obtained in a few states, but in fact he was not importing a standard already at work in some places. He was creating one. This change, predicted by Nachman, is the target of Holloway’s book.
Where Samantha Barbas’ recent book, Actual Malice, is a spirited romp through the histories and personalities involved in the case, Holloway’s book is tightly focused on close legal analysis. (Both books are excellent.)
Holloway notes numerous flaws, and misrepresentations, in the Court’s opinion. To begin with, since Commissioner Sullivan wasn’t named in the ad, it’s a real stretch to accept that complaints about police practices constitute a personal attack on him. Even the Court admits this en passant, but, as Holloway notes, if the Court had done the obvious thing and dismissed the case on that ground, it wouldn’t have been in a position to make new law, which was its obvious goal.
And from the conclusion:
Holloway calls for Sullivan to be overturned, and for a return to the traditional libel rules that applied before Justice Brennan changed the law. He makes a powerful case, but my own opinion is that the current Roberts Court, which leans more toward Amy Coney Barrett than Clarence Thomas in temperament, is unlikely to take such a sweeping step. After his McKee dissent, Thomas was accused of wanting to “crush the free press,” of impeding the public’s “right to know,” and even of making war on “the very idea of a free press.” All nonsense, of course: To argue that overturning the Sullivan opinion would end the free press would necessarily mean arguing that America lacked a free press before 1964, which is absurd. Yet the Roberts Court has shown that it can be swayed by such statements, and, barring a couple of more appointments of justices in the Clarence Thomas mold (something fervently to be wished for, of course), I think the prospects of an outright overturning of Sullivan are poor.
Instead, I think that the Court might return to the “public official” standard and amend the “actual malice” standard to require objectively reasonable care in investigations and reporting. Such a change would achieve much of the good that an outright overturning would. In an afterword, Holloway explicitly dismisses these “prudential” arguments, and on an intellectual level he is right to do so. Fiat justitia, ruat coelum and all that.
But in practical lawyering, it’s best to ask for something that you might get, at least as a fallback argument, and not just what you’re entitled to. Regardless, however, I feel confident that when Sullivan is relitigated—and it will be—Holloway’s book will be a powerful resource for those seeking to overturn the current arrangement. My treatment here has barely done justice to the extensive and detailed analysis in No Liberty to Libel, and for those relying on it, the briefs will almost write themselves. A first-rate legal book, and highly recommended.
Posted at 6:07 AM