Several justices have indicated that the Supreme Court may reconsider one of the major cases concerning freedom of the press, The New York Times reported on Wednesday.
New York Times v Sullivan, a 1964 precedent which made it extremely difficult for government officials to win libel suits. has only one rival as the most important legal triumph for the press in American history, the Pentagon Papers decision in 1971.
Sullivan imposed a very high standard favoring free speech over defending reputation by requiring proof that the disputed statements were made with “actual malice” meaning with knowledge of their falsity or with serious subjective doubts about their truth.
But last month, Justice Neil Gorsuch said it was time for the Supreme Court to take another look at the case, writing in a dissenting opinion that “what started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
Justice Clarence Thomas has also called for reconsideration of the decision and rulings extending it, saying they were “policy-driven decisions masquerading as constitutional law.”
By “rules extending it,” Thomas is referring to the fact that the Sullivan decision was limited to public officials but later decisions required “public figures” – celebrities and people caught up in public controversies – to make the same showing, according to the Times.
This is something that Justice Elena Kagan called “questionable extensions” in a book review she wrote in 1993 when she was a law professor at the University of Chicago, explaining that “in extending Sullivan, the court increasingly lost contact with the case’s premises and principles.”
Gorsuch cited Kagan’s article twice in his recent dissent, making a similar point by stating that “rules intended to ensure a robust debate over actions taken by high public officials carrying out the public’s business increasingly seem to leave even ordinary Americans without recourse for grievous defamation.”
University of Utah law professor RonNell Andersen-Jones, however, said that the debate over the proper scope of the Sullivan rule is no reason to do away with it.
She pointed out that “there is a reason that Donald Trump and other politicians hate the Sullivan standard so much. It is a key way that we make sure that government officials and other people in power can’t silence their critics,” adding that “it would be a massive blow to American-style free speech to lose it.”