A Sword Rather Than a Shield: Revisiting Sullivan To Restore The Holding Of Falsity Accountable
An ancient common law tenet enshrined in our freedom of the press was expressed by William Blackstone when he wrote “[e]very freeman has an undoubted right to lay what sentiments he pleases before the public,” yet if he spews falsity “he must take the consequence of his own temerity.” As Justice Gorsuch noted in his dissent to the denial of certiorari in Berisha v. Lawson, Blackstone’s enunciated principle was the American defamation standard for about two centuries until it was abandoned when the Supreme Court decided New York Times Co. v. Sullivan. The Sullivan Court deprived the ability of public officials to recover for defamation unless they are able to overcome the arduous hurdle of proving “actual malice.” This is a burden of proof that requires a plaintiff to demonstrate that the defendant acted “with knowledge that [its defamatory statement] was false or [the defendant acted with] reckless disregard of whether it was false or not.”
The Court extended this rule to encompass not just public officials within government, but to “public figures” who reside outside of the public sector. See Curtis Pub. Co. v. Butts, 388 U.S. 130, 163 (1967). Once more, the actual malice standard was extended to encompass not just individuals who purposefully threw themselves into public spotlight, but to persons involuntarily “drawn into a particular public controversy.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). The Supreme Court’s overarching justification that propelled Sullivan was, in essence, to provide a shield to news organizations, enabling them to fend off attempts by powerful entities with the aim of suppressing their journalistic efforts by subjecting them to enormous libel lawsuits.
After all, the Supreme Court has described Sullivan and its progenies as “necessary to implement the First Amendment interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” However, in the years since this drastic departure from the Blackstone standard, it is apparent that Sullivan has become a legal sword to thwart an otherwise legitimate defamation suit from proceeding, rather than a shield to defend against frivolous and retaliatory lawsuits. In 1980, there were, on average, 27 defamation-related claims per year. In 2017, there were only 3. The need to shield journalists from retributive lawsuits has been largely achieved by Anti-SLAPP legislation. These laws furnish defendants a legal on-ramp to have retributive lawsuits dismissed. These types of strategic lawsuits are filed against defendants “for exercising speech, press, assembly, petition, or association rights.”
In other words, now that the majority of American states have implemented Anti-SLAPP legislation, what is the need for Sullivan? A critic might say ‘there is still a minority of states without ANTI-SLAPP protections, therefore justifying the retainment of Sullivan’s actual malice standard.’ However, the nonexistence of Anti-SLAPP statutes in some states is immaterial because in the end, this writer’s call for revisiting Sullivan is an outgrowth of the supposition that it represents a damaging encroachment into state sovereignty.
Not only does Sullivan serve as an offensive weapon to defeat a potentially viable defamation cause of action, but it encourages “publishing without investigation, fact-checking, or editing.” In the eyes of the law in regard to public figures, ignorance is bliss. By extension, Sullivan also produces a gross business incentive to haphazardly rush stirring stories to publication without giving much care for the truth of its statements, rather than the conventional standard of methodically analyzing the facts underlying a potential news exposé. There is also the question regarding how this nation’s rapidly evolving telecommunicative landscape factors into the Sullivan question. As Justice Gorsuch noted, “private citizens can become “public figures” on social media overnight” and some courts have deemed an individual to be a temporary public figure [for Sullivan purposes] merely by defending themselves from a defaming claim. So, if a person is defamed on Facebook, and they respond with a defense of themselves, what is the proper classification? Do they retain their private citizen status? Or does the average joe now have to confront the actual malice standard to prevail on a defamation claim?
A grave picture is being drawn upon the wall. Sullivan has morphed from a shield to defend against political tyranny and self-censorship, into a sword that precludes a potentially meritorious defamation claim. Sullivan and its daughter-variants have produced twisted legal strategies to not perform due diligence and perverse business incentives to race stories to the finish line of publication. Finally, social media companies and other internet sites accessible domestically and abroad raise serious questions as to who classifies them as public figures. In sum, it seems more than warranted to revisit Sullivan in order to address these questions, and as Justice Gorsuch put it, to “returning its attention…to a field so vital to the “safe deposit” of our liberties.”
