It’s Time To Codify The ‘NY Times v. Sullivan’ Standard Into Law
from the make-it-happen dept
For all the misleading claims about “free speech under attack” in place where it is definitively not under attack (i.e., on social media sites, or via “cancel culture”), there are many areas in which free speech absolutely is under attack, and there may be no bigger one than the (relatively new!) movement to overturn the extremely important NY Times v. Sullivan case from 1964 that basically set the standards for defamation of a public figure. Basically, in an effort to make defamation law compatible with the 1st Amendment, the Supreme Court realized that it had to have a very high bar to bringing a successful defamation case. Otherwise, the Court (accurately) surmised, the rich and powerful would bring such cases against critics for just minor inaccuracies.
Specifically, the Sullivan case set forth the “actual malice” standard for defamation of a public figure. This oft-misunderstood standard actually has nothing to do with “malice” in the colloquial sense. The standard is not “this person wanted to hurt the plaintiff.” The standard is that the speaker needed to know that what they were saying/writing was false and still go forward with it or they had to have “reckless disregard” for the truth. And “reckless disregard” is also frequently misunderstood as well: being negligent does not count. Not asking for a comment, absolutely does not count. Reckless disregard means that the person effectively had serious doubts about the accuracy of the statement… and still made or published it.
This standard has been incredibly important for almost 60 years now. It means that the rich and powerful can’t sue someone for defamation for a simple mistake or a slightly misleading argument. It really has to be a case where the person knew what they were saying or writing was wrong, but chose to put it out there anyway to hurt the person. It has to be done on purpose. That is what “actual malice” means.
And it’s incredibly important in protecting free speech, especially for those criticizing the rich and powerful.
Back when Donald Trump was first elected as President and promised to “open up our libel laws” (something he did not actually do) Ken “Popehat” White noted how difficult that would be, noting that (unlike something like Roe v. Wade), there hadn’t been a huge movement to undermine Sullivan.
Unlike, say, Roe v. Wade, nobody’s been trying to chip away at Sullivan for 52 years. It’s not a matter of controversy or pushback or questioning in judicial decisions. Though it’s been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above. You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find ones who would reliably overturn Sullivan and its progeny. It’s an outlying view — not chemtrail-level, but several firm strides in that direction.…
In short, there’s no big eager group of “overturn Sullivan” judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.
Except… that over the last few years, there actually has been the beginnings of just such a movement. Back in 2019, Justice Clarence Thomas wrote an unprovoked attack on the Sullivan standard. He’s done this a few times in the last few years, almost always attacking settled 1st Amendment doctrine. Rather than actually waiting for a case that is relevant, he’ll issue a concurrence along with a denial of a cert petition, where he just sort of muses aimlessly (without any of the relevant briefing or knowledge) about something he randomly hates about the way the 1st Amendment is presently interpreted. Indeed, Thomas seemed particularly perturbed that the rich and powerful were unable to silence the annoying people who made fun of them (he claims that public figures deserve more protection from criticism, rather than less, since it is “more serious and injurious” to them, a statement that seems to be dripping with disdain for everyday people).
In 2021, Thomas’s mentor and good friend, DC Circuit Judge Laurence Silberman (who more recently passed away) wrote such an unhinged screed against Sullivan that it made me question how anyone could take any of his decisions seriously. Specifically, Silberman bitched about the awful “liberal media” and how it had “ideological control” of the world with the apparent help of “big tech” which he insisted only helped Democrats (despite all evidence showing the reverse is true). He talked about how only Rupert Murdoch was standing strong and fighting back against this horrible turn of events, but seemed to think that because Murdoch was just one man, “authoritarian and dictatorial” leftists (no, really) were going to take over the world, if we didn’t get rid of the Sullivan standard.
Out of this we’ve seen a much more concerted effort to now overturn Sullivan. And this should frighten anyone who actually believes in free speech. Having seen what was done in overturning Roe, there’s a clearer playbook for overturning old precedents. It doesn’t happen overnight, but building up a movement is part of the deal. We’ve also seen some starting to push cases challenging Sullivan, including from Sarah Palin and Devin Nunes.*
And that’s why some professors are calling on Congress to do what the could have done to protect Roe (but never did), and make an effort now to take the Supreme Court’s Sullivan standard and have Congress pass it into law. Professor’s Matthew Schafer and Jeff Kosseff not only wrote a paper about this, but even outlined the legislation necessary to do it, the “Freedom of Speech and Press Act.” As they discuss in their Slate article about the paper:
The Freedom of Speech and Press Act that we propose would avoid such a chilling effect by setting baseline free speech protections nationwide. Although defamation is a matter of state law, federal law can set minimum standards and preempt inconsistent state laws. Perhaps the most notorious such law is Section 230 of the Communications Decency Act, which prevents online service providers from liability in lawsuits arising from user content.
Unlike Section 230, the Freedom of Speech and Press Act would not set an absolute prohibition on lawsuits. Instead, it would require state defamation lawsuits to provide protections that are similar to (or more expansive than) those that the Supreme Court provided in Sullivan and its progeny. Importantly, the proposed legislative findings would ensconce in federal statutory law our national commitment to “uninhibited, robust, and wide-open” debate while recognizing that certain defamation claims are contrary to that principle.
It would give teeth to these ideas first by requiring any plaintiff bringing a defamation lawsuit relating to a matter of public concern to demonstrate actual malice, and in all other cases, the plaintiff has the burden of proving falsity.
It would also ensure that speakers are not liable for expressing their opinions broadly defined, as it limits defamation lawsuits to those that are based on provably false factual claims. And the proposal also recognizes the devastating impact of multi-million-dollar jury awards by imposing limits on damages depending on the kind of defamation case.
All of this seems quite reasonable and useful. That is, if you actually believe in free speech.
Now, we just need a Congress willing to do so.
* The fact that folks like Thomas, Palin, and Nunes are the ones leading the charge for undermining this key free speech principle should, again, raise questions of anyone who argues that the modern GOP is committed to supporting free speech and the 1st Amendment. It seems they’re quite happy to destroy free speech if it allows them to punish their critics.
Filed Under: 1st amendment, actual malice, clarence thomas, congress, criticism, defamation, free speech, nyt v. sullivan, public figures, reckless disregard
Comments on “It’s Time To Codify The ‘NY Times v. Sullivan’ Standard Into Law”
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Plausable Malice
Apparently, only those folks capable of mind-reading can bring a successful claim. You don’t need to be a psychic to understand why there’s a desire to change the standard.
Re:
Apparently, only thin-skinned folks incapable of rational thought bring unsuccessful claims to silence critics and satire. You don’t need to be a psychic to understand why they have a desire to change the standard.
Re: Evidence
Koby proving, yet again, he does not understand what “evidence” means. This “you must be a mind reader” bullshit argument doesn’t stand up to the slightest scrutiny. When you choose your words, you make it very clear what your motives are, that’s what language does.
It doesn’t require mind-reading to understand your motives, when your words convey it perfectly well.
You’re right on one thing though, Koby: it doesn’t take a mind-reader to understand that the rich want to change the standard so they can sue anyone who points out their stupidity.
Re: Re:
“It doesn’t require mind-reading to understand your motives, when your words convey it perfectly well.”
Or, indeed, actions. Koby seems to think that you have to only look at the words in question and psychically gather the intent. But, in the real world, people consider things like context and history. Which can include things not published, but available to read or otherwise determined through further investigation.
If you show me a phrase written alone, I might have to be a mind-reader to determine its intent. If you give me a series of articles on the same subject which all have similar biases, combined with internal emails where the editor expresses doubts before publishing, or an author communicating with colleagues who point out the inaccuracies before publication, not so much.
Re: Re: Re:
I seem to recall a quote something along the lines of… give me three sentences written by someone and I can have them convicted of treason… something like that. I may be mistaken, it happens occasionally.
Re: Re: Re:2
Qu’on me donne six lignes écrites de la main du plus honnête homme, j’y trouverai de quoi le faire pendre.
If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.
https://en.wikiquote.org/wiki/Cardinal_Richelieu (attribution disputed)
Re:
Really Koby? You believe that telepathy is the only way to be sure someone knows something?
Re: Re:
Telepathy is how donny does it, he can declassify just with his stable genius brain.
Re:
That’s rich coming from you Koby.
You come from the “fuck your feelings” group of people, but as soon as somebody says something mean about you people, you immediately run to the courts to try and file suit for getting your fee fees hurt.
Re: Re:
By their own definition, they are snowflakes
Re: Re: Re:
Most of the trolls here are snowflakes in the “oh they melt under even the slightest criticism” sense of the word. Look at Chozen: He wants to act like he’s all polite and well-meaning, but say anything to contradict his warped-ass belief system and he’ll toss out a “fuck you” like a toddler having a temper tantrum.
Re:
Ah Koby, I thought I smelled the stench of failure.
The problem with our defamation laws is that no matter how lenient or strict you make them, there will still be ways to get around them because that’s how human language (and other speech) works. Unless we want the government deciding the intent of speech, which would be a disaster, people who know the law would be able to get around it while still providing misinformation and outright lies to people.
Re:
So your argument is that language is to hard to understand the meaning? People who want to do unpopular things switch to coded language?
Trust me when I tell you the person attacked knows the meaning of the language used against them. What we lack is the ability to translate to courts. The courts willingly use incorrect translations like “I want a lawyer Dawg” (STATE OF LOUISIANA VERSUS WARREN DEMESME) as a means of favoring some people over others.
Perhaps instead we need laws allowing courts to let people provide translations of speech. (What does the words said mean to you?) Because Trust me, “Lawyer Dawg” is one of the least offensive cases I could pick from.
To be honest, it is always time, to codify every important court decision we want to preserve into law. Brady (as in vs Maryland), Napue v Illinois, Plessy v Ferguson (see the consequences of not having codified that!), Gideon.
Though I could give a pass on Qualified Immunity, and several others…
Re:
No, no, no! Codify that to restore the Court’s original intent; that federal public officials could do their jobs without penny-ante lawsuits wasting their time (and the taxpayer’s dollars).
Only this time, write the law to make sure that officials who carry a firearm as a matter of course are specifically excluded from such protection, regardless of the surrounding circumstances. An alleged offender might still go free, but not without due process in looking for justice for the aggrieved party.
sumgai
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Its just another article that confirms the benefits of new digital infrastructure within domestic borders.
Out of the 5.5 billion internet users, only some countries have freedom of speech.
The best A/B/C/D testing will prove, everything [they] touch turns to shit using data by country.
The 1st world already turned the page of history on the Internet. Its a 1st world solution. We can expect Freedom of Speech on domestic data networks. Not on the Internet.
Meanwhile, in the UK
Our libel laws are amongst the worst in the world, but we’re starting to look at making them better.
See the Guardian’s piece on Oligarch’s abusing the system and how it’s leading change.
Also, MPs are looking to introduce new laws around defamation.
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Freedom of Speech is easy to see.
By 2025, February will be “Cultural History Month” in the United States.
We can celebrate the best of culture!
I’m sorry, but seriously?
Rupert Murdoch, defender of free speech?
The man who thinks all information should be controlled and monetized for propagandistic purposes? The man who considers journalistic standards something of an afterthought? The man who started a yellow journalist rag that’s so deeply unpopular in certain parts of England because of said yellow journalism? The man whose “news” networks were a key component in polarizing political discussion in America?
Silberman disgusts me so much.
Re:
And I’m certain Rupert Murdoch, of all people, well known for the deep factual research and quite considered articles printed in his publications would be delighted by making it easier to sue papers for libel XD
You couldn’t make this up.
Re: Re:
And that’s the interesting thing, all the facts-optional media and pundits will be in trouble if the threshold for what is considered libel/defamation is lowered.
Re: Re:
A repeat of what Max Mosley did in the UK?
Stop, stop, I can’t handle that much excitement.
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You’re basically for codifying the right to “misinformation” into law.
I don’t even necessarily disagree, it’s just super ironic.
And yeah, free speech is definitely under attack in social media. Not least of which cuz dumbshits like you insist on censorship and provide cover for government direction of same.
Re: It's not ironic if you understand "better safe than sorry"
The right to misinformation kinda does exist. It’s more of a de facto right than a deliberately included right. Limited exceptions such as defamation aside, the First Amendment protects speakers of misinformation from government punishment (not punishment by companies and non-government individuals).
The bottom line of the freedom of speech is erring on the side of caution. It’s better to risk letting a bit more misinformation go for the sake of preventing government punishment of truth and insightful opinion, than it is to suppress as much misinformation as possible while in the process trampling on (unintentionally and intentionally) the truth. (Tangent: misinformation-laced opinion can still lead to important political and philosophical conversations.)
Re: Re:
And on the flipside…
Removing those protections means “better safe than sorry” becomes “better not say anything lest I get SLAPPED by the rich and powerful” or worse. Which is practically the norm in countries outside of the US and Europe.
And no, I’m not talking about commenting on the Internet.
Re:
Since when has social media become the end-all be-all of our current civilization?
What about the millions of people who don’t use social media, how is their free speech under attack?
Re:
An opinion held by those whose only interest if forcing people to agree with them, or who want to attack people for being different.
Re:
Yes, because as we’ve said for ages, the government should not be in the business of determining what is truth and what is not. Misinformation is lawful in most cases, and it should remain that way.
There’s no irony. My position is entirely consistent. Government should not be in the business of censoring speech, or determining what is misinformation.
But private actors are able to do so, and have every right to do so as part of their own free speech rights.
Our position is wholly consistent.
No, it’s not. That there are competing private actors deciding what to platform and what not to is an example of the marketplace of ideas and true freedom of speech. Your demand that everything should be platformed is an attack on the free speech rights of private actors.
I have never insisted on “censorship.” I have fought against it constantly. I do believe that companies have their own rights as well, though.
One day, perhaps, you’ll understand.
Re:
Moderation is not censorship, it’s a basic part of humanity. You can do anything you want. Your community can also respond any way they want whenever you do anything you want including providing negative consequences when your do anything behavior annoys or degrades people. Moderation is the response to your actions when those actions go beyond the norms of the community. What you want is a lawless world where you can do anything and nobody has the right to respond to you because responding to your actions is a violation of your rights in your fucked up mind. And, once again, you are beyond tedious and boring but a nice tool to use to practice my rhetorical skills.
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Re: Re: No, you’re just wrong
Yes, moderation is censorship, dumbshit.
Speech is never illegal, wtf. (Credible threats are really a subset of violence, not speech in the normal sense)
Re: Re: Re:
Please explain how an act of content moderation on social media impedes someone’s right to speak freely. Note that “it impedes their rights on that service” or any variant thereof is not an acceptable answer. And remember that nobody has a right to an audience or a platform at someone else’s expense.
Re: Re: Re:
Moderation is only censorship if it xomes with a lawsuit.
Now, have any of us tried to sue you in a court of law for your reprehsensible behavior and general bad-faith pollution of this comment section? If so, please show us the lawyer’s letters.
And seeing as we aren’t as frivilous as YOUR GROUP…
Re: Re: Re:
Plenty of speech is illegal, you dingbat.
Re: Re: Re:
“Speech is never illegal.”
Let me know who your dealer is cause he got that good shit.
Re: Re: Re:
It seems like you want the right to get in peoples faces and tell them how wrong they are. That is not free speech, but rather one ideology authoritarianism.
Re:
…said nobody not on halluconogens, ever.
Re:
Yes, it’s called the First Amendment. Something you’ve never actually tried protecting, despite your claims.
I can point to my country submitting hundreds of removal requests DAILY regarding things the government claims the public should not know about. Across DIFFERENT Social Media Platforms. (Singapore) Among Other Actions.
You can’t even bring evidence to suggest that the FBI was censoring anyone on Twitter. No, your paranoia about the FBI does not count.
The evidence, then. I can point to the Reporters Without Borders report on Singapore for my country for a summary. And I am more than willing to provide examples that the esteemed association doesn’t cover. Plus CONTEXT.
Where’s yours?
Re: Bratty Marty shits the bed again
You make less sense than the chatgp bot. And at least that thing acts like an adult.
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Might be a good idea, but.
The standard that Thomas suggests is the removal of the “actual malice” and “reckless disregard” standards applied in the analysis of defamation claims by public figures.
Defamation is a concept under the common law, which is why it is accepted as a limitation to First Amendment protections. But the greater protection offered to non-public figures wasn’t recognized under the common law-such was purely the invention of the Supreme Court in Sullivan.
Thinking that it’s a good idea to codify those standards is not the same as a constitutional argument. This failure is one common to many partisans. Just because something is subjectively “good” to one faction or another doesn’t make it constitutional, and nor does something being subjectively “bad” make it unconstitutional.
So, under the First Amendment and the common law, without regard to whether it’s a “good” idea, the questions must be answered:
Why is it a key protection of free speech to invent conditions under which a public figure would not have been defamed when an ordinary citizen would have been? Why should public figures be less protected under the First Amendment (that is, why are some citizens unequal as a matter of law)?
Re:
It is an explanation for how common law defamation can be recognized under the 1st Amendment, so it is very much a constitutional explanation. The Sullivan court was making it clear that in order to make the 1st Amendment compatible with defamation, it had to protect most speech, especially those about public figures, which the 1st Amendment was put in place to specifically enable the criticism of those public figures.
Except this argument is not even remotely “partisan.”
Your framing of the question is extremely misleading and biased. What the court recognizes, as have many others since, is that public figures are ALREADY much more privileged than the ordinary citizen, in that if people criticize them, they have the means and ability to respond and correct the record. So, they don’t need defamation law to get their response heard. And, more frequently, they will use defamation law to stifle the speech of the less powerful.
So, yes, as the Sullivan Court recognized, you need a standard like that in Sullivan to protect everyone’s rights, and not allow the powerful to stifle speech through things like SLAPP suits.
Your entire claim that “citizens unequal as a matter of law” is just bullshit framing, and you must know that.
Re: Re:
Same as every single other comment from LittleCupcakes.
Re: Switch your cart and horse there
Sullivan is less about making 1A fit the traditional common law concept of defamation and more about finding if there’s any place for speech to be considered defamation in a society that is constituted with the 1A in its foundation. A fully robust speech right would mean no speech could be found defamatory by a (government) court.
That’s why the exception is so narrow, especially for public figures who, as Mike pointed out, have more resources at hand to set the record straight or sue dissent into the ground. That any speech can be defamatory is already at the pleasure of a 1A exception.
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Large generic speech platforms absolutely attacked freedom of speech, by silencing opinions based on viewpoint. Freedom of speech is not limited to the 1st Amendment and government censorship. Freedom of speech is the ability to speak freely on a platform without being silenced by the owners of the platform when they don’t like the viewpoint of the speech. The fact that a private platform is allowed to censor in this way does not make it any less a deprivation of freedom of speech for the silenced. Neither does it matter that the silenced can find another place to speak, because censorship is the act of the censor, silencing speech on the platforms the censor controls.
Re:
So what about the 100s of millions of people who don’t use social media, how is their freedom of speech being attacked by social media?
Re:
Define “large generic speech platforms” in clear and concise terms. Then tell me how the decisions of those platforms to bar bigoted speech impedes anyone’s freedom of speech. Note that “it impedes their rights on that service” or any variant thereof is not an acceptable answer. And remember that nobody has a right to an audience or a platform at someone else’s expense.
No, it isn’t. Freedom of speech is the right to speak freely. No one owes you the attention you want for your speech and you aren’t entitled to use someone else’s platform for spreading your speech. Being denied the use of Twitter doesn’t impede your right to speak freely anywhere else and trotting out the “I have been silenced” fallacy won’t ever change that fact.
You’re right. It’s impossible to make it “any less a deprivation of freedom of speech” when it already isn’t a deprivation of that freedom.
For what reason, then, are you ignoring (or possibly even approving of) the real and well-documented acts of censorship being carried out by the DeSantis administration down in Florida? Because for someone who seems so eager to bitch about censorship, I don’t see you wailing about the book bans that have forced Florida schools to empty library shelves.
Re:
So, has Mike tried to sue you yet?
Spoiler: Mike hasn’t, and would never, sue you.
Re: At least you managed to not say work for an entire paragraph
Hey busted ass human. Why do you hate private property so much?
Re: Re:
Hyman doesn’t like fabulous folk. But we’re working on that.
Example:
NY Post intentionally pushing a fairy tale about Hunter Biden they knew was so shady in origin they didn’t put the author’s name on it and less-dishonest (by a small margin) outlets refused to touch outright until laundered.
I think it’s ironic that SCOTUS can take away the right of American people to control their own reproduction, and the outrage is mostly expressed by reproductive activists, with silence from far too many in the left wing. But if SCTOUS threatens to take the right to talk shit about how ridiculous Donald Trump is*, then that’s what gets people really talking seriously about judicial reform and legislating long-held legal precedent.
Not aiming this at you, Mike. Just all those guys who think “well actually, there could be good reasons to restrict abortion” without giving a shit who else it hurts.
*I’m totally in favour of common folk being able to talk shit about Trump or anyone with power. I’m also totally in favour of free, safe, legal abortion on demand, as often as needed.
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