But last year, at the very end of the Court’s last term, Justice Neil Gorsuch—who at his confirmation hearing seemed to agree that Sullivan was well-nigh untouchable—upset this comfort level with a passionate plea that Sullivan should be reconsidered. Unlike Thomas’s legal criticism, Gorsuch’s critique was based on the changing media ecosystem, which somehow, he claimed, had led to more falsity and disinformation and a legal playing field that had inexplicably been tilted against those whose reputations had been wounded.
A seismic alarm was sounded. Might other justices, perhaps those appointed by Donald Trump, the proselytizer of more “open . . . libel laws” (whatever that means), or Justice Elena Kagan, whom Gorsuch cited in his opinion, agree with the call for reconsideration? Was Sullivan’s vitality all of a sudden really in doubt?
I think it’s doubtful, but Sullivan is so much the linchpin of our defamation law and is so keenly a vital pillar of all of our free speech jurisprudence that we no longer can take it for granted. Many columns have been written and programs have been held to discuss the topic and try to predict the future. Indeed, this very question will be the subject of a Civil Rights Litigation Committee program at the Litigation Section’s Annual Conference in Miami on May 5, 2022, at 1:30 p.m.
While I certainly don’t intend to jump the gun on what I hope and assume will be a very engaging and informative program, with First Amendment experts such as Floyd Abrams, I will just offer a few personal thoughts on the issue: first, on the need for the continued reliance on the actual malice rule; and, second, on how to deal with the less unreasonable criticism of the public figure (as opposed to public official ) categorization.
Actual Malice Rule: Still Relevant
The “bad journalism” argument is easily debunked. Gorsuch makes the argument that Sullivan incentivizes bad journalism. If you can only be liable if you have serious doubts as to the truth of your publication, once you establish the basic facts to support your premise, why do any further research or news gathering? After all, more facts might give rise to contrary information, which might create doubts as to your original thesis.
Theoretically, there is some validity to this construct—but, in reality, the problem really does not exist. In over 30 years of working with journalists, I have never—never—seen an instance where a reporter would close his notebook prematurely, thinking that he would legally be better off by doing no more research. First, reporters simply don’t think about legal niceties or consequences when working on a story. Second, their training compels them to dig for more and more information—and, perhaps more important, the likely questioning by their editors, their bosses, impels them to get all of the facts. So, the argument that reporters will “bury their heads in the sand” just has no practical resonance. In a dissent from a denial of certiorari in a case last year, Gorsuch wrote, “Under the actual malice regime as it has evolved, ‘ignorance is bliss.’” That’s not what goes on in newsrooms. Such legal strategizing does not take place.
Indeed, neither do reporters calibrate their work depending on whether their subject is a public official/figure or a private figure. I never saw a reporter say (or an editor allow the thought), “I can be negligent because I’m writing about a public official, and so negligence won’t be my legal test.” At our legal newsroom seminars, we would usually discuss the differing standards pertaining to public and private figures, but we would often add that reporters shouldn’t think about that in their work because obviously they should be responsible and professional no matter whom they are writing about. The reaction I received was that I was ridiculous for even saying that, so I tended, in later years, to drop that from my repertoire.
Changes in the media arena affirm the need for the actual malice rule. Much of Gorsuch’s discussion of the media environment really works against his thesis. His dissent noted that a large number of newspapers and periodicals have failed; and, quoting Professor David Logan, he wrote that “the economic model that supported reporters, fact-checking and editorial oversight” has “deeply eroded.” Although to a limited degree the latter notion might contain a modicum of truth, the main point is that local journalism is under severe financial pressure and that local newspapers have in large numbers gone out of business or deeply cut staff and coverage.
The diminution of investigative reporting and coverage of local governmental institutions cuts directly against what Justice William Brennan found to be so important and what was a basis for the Sullivan Court’s actual malice ruling. The Court wanted to incentivize the press to cover local city councils and the like, not be chilled from reporting about their possible foibles and abuses because of the fear of losing libel suits and the costs of defending them—costs that, of course, have skyrocketed since 1964. As Gorsuch recognized in his dissent, the Sullivan Court “took the view that tolerating the publication of some false information was a necessary and acceptable cost to pay to ensure truthful statements vital to democratic self-government were not inadvertently suppressed.”
However, Gorsuch tried to argue in his dissent that this balance no longer pertains because Sullivan by now has created “an effective immunity from liability.” But he doesn’t explain how Sullivan is the cause for the recent alleged lack of success of libel plaintiffs when Sullivan has existed for nearly 60 years and seems not to have had that effect in the first 50. More to the point, at a time when the ecosystem has already resulted in a cutback on local coverage, this would seem to be the worst possible time to add an increased legal risk for media barely hanging on. In their current precarious position, why would they expend the resources and risk legal jeopardy in assigning investigative stories about governmental and corporate institutions? Such lack of oversight clearly runs counter to Brennan’s very premise, i.e., that our democracy needs vigorous coverage and monitoring of—and “uninhibited, robust, and wide-open” debate about—the powerful. Sullivan, 376 U.S. at 270.
Rosenbloom Test: Improvement over Public Figure Categorization
On the other hand, Gorsuch’s main critique is much more tenable. He emphasizes not a lower standard for reports about public officials but a greater chance for libel recoveries by public figures.
If this were a negotiation, I would swap the continuation of the actual malice test for public officials for a chance to eliminate the public figure categorization and replace it with the Rosenbloom test, which emanated from Rosenbloom v. Metromedia, Inc. 403 U.S. 29 (1971). Under this test, which lasted just a few years in the early 1970s, actual malice would be the standard dependent not on whether the subject of the defamation was a public figure but on whether the topic was of legitimate public interest.
Recall that Brennan’s underpinning for the “serious doubts” test dealt with the importance of reporting on government and public affairs, not on the need to know more about the sex or drug lives of celebrities. (I hate using the terms actual malice and reckless disregard because those terms actually are inconsistent with the term’s legal meaning.) Hence, doesn’t it make sense to apply the “serious doubts” test not only to public officials but also to any matters of legitimate public interest (but perhaps not to gossip and private information about famous people in whose private lives we have merely a prurient interest)?
By the numbers, I think that such a change would be close to a wash. The media would lose Sullivan protection in libel suits brought by celebrities about their private lives but would gain Sullivan protection in reporting on matters of public concern even if the person libeled was a private figure. And by agreeing to, or accepting, such new criteria, we might well be solidifying the principle that reporting on government and other powerful institutions really deserves Sullivan protection.
One example with which I was involved illustrates the point. Back in the early 1980s, the Miami Herald Publishing Company (Herald) hosted a “brainthink” at the venerable, pink Don CeSar hotel at St. Pete Beach. It was to discuss an appeal strategy in a case that the newspaper company had lost in the lower court called Miami Herald Publishing Co. v. Ane. 423 So. 2d 471 (Fla. Dist. Ct. App. 1979). As I recall, the plaintiff in the case was a truck driver who got into a violent altercation with the police and alleged police overreaction; in the course of the article, the driver’s prior criminal history was wrongly described. In his subsequent libel suit, he was classified as a private figure—just a driver stopped on the road by the authorities. But shouldn’t such reporting about possibly unwarranted governmental action deserve the broadest of libel protection? Under the Rosenbloom test, the Herald would have had the benefit of the “serious doubts” test because the topic of the article surely was a matter of legitimate public concern. Conversely, an article about a rock singer’s sexual affairs or a TV host’s drug use—not topics with which Brennan was probably too concerned—would receive only the protection of the Gertz negligence test or, perhaps, a tougher state law standard. See Gertz v. Welch, 418 U.S. 323 (1974).
The odds are that the Thomas/Gorsuch position won’t have enough traction to pick up four votes for reconsideration. Plus, the Court is in enough troubled waters in the court of public opinion that it doesn’t need—or probably want—to wade into yet another controversial area: upsetting long-standing precedent in the abortion area and ruling against public opinion supporting Roe v. Wade would be enough critical attention heaped on the beleaguered Court. But these are fascinating issues—and given the importance of the Sullivan rule, attention must be paid.
George Freeman is cochair of the Civil Rights Litigation Committee and the executive director of the Media Law Resource Center in New York, New York.