Carl Bogus has posted to SSRN Why New York Times v. Sullivan Must Be Preserved. The abstract provides:
New York Times v. Sullivan is under siege. Supreme Court justices and eminent members of the legal academy argue that its core holding – that public figures must prove actual malice by clear and convincing evidence, and that courts must evaluate the evidence to determine whether it is sufficient to support that finding – is too restrictive. The advocates for reform argue that we need to make defamation actions easier to bring in order to combat disinformation in our national discourse. Nothing less than American democracy is at stake, they claim.
This Article demonstrates that, although well intentioned, those calling for reform are wrong. Overruling or weakening Sullivan would be disastrous for the free press. Moreover, it would not be as effective in combating disinformation as reform advocates expect.
This Article makes that demonstration not with theory but with experience. In addition to a rich exploration of Sullivan itself, this Article closely examines the six most politically important defamation cases of the McCarthy and Trump eras.
By providing far more depth about the facts than does the Supreme Court’s opinion, this Article supplies the background necessary to understand what Sullivan was really about. The lawsuit had nothing to do with vindicating plaintiff’s reputation. If anything, the allegedly defamatory statements enhanced plaintiff’s reputation. Sullivan was the leading edge of an effort to force the Northern press to stop covering the civil rights movement. Had the Supreme Court not adopted the actual malice standard, that effort would have succeeded.
The McCarthy Era has much in common with our own time. It involved bitter disagreements about what was true, was plagued by demagogic figures and tactics, and placed constitutional democracy under strain. This Article examines in depth the three most politically consequential cases of that era. Those cases influenced the development of modern conservatism (Alger Hiss v. Whitaker Chambers), demolished the credibility of one of the most widely read conservative commentators in America (Quentin Reynolds v. Westbrook Pegler), and ended the Hollywood blacklist (John Henry Faulk v. Aware, Inc.). Each of these cases was politically powerful precisely because it unmasked a liar.
The Article also examines in depth three of the most visible politically relevant defamation actions of the Trump Era. Two of these cases (Dominion v. Fox News, and Sandy Hook Families v. Alex Jones) resulted in enormous monetary awards ($787.5 million and nearly $1.5 billion). Yet, unlike McCarthy Era cases, neither case is likely to diminish the influence, or affect the future conduct, of a defendant. That is because in today’s far more vast media landscape, disinformation can be extremely profitable, and discredited media personalities can more easily find new platforms. The third Trump Era case (Sarah Palin v. New York Times) shows that there are always wealthy people with political agenda who are eager to bankroll defamation cases to harass or destroy news organizations they dislike.
Sullivan is both essential to preserving a free press and well calibrated to allow precisely the kinds of cases that are most likely to combat disinformation and improve national discourse, namely, cases that reveal influential personalities to be liars.