It may sound like common sense to say all Americans should have to meet the same standard of proof to win a defamation suit against a media outlet, but that’s not how it works under U.S. law. And it shouldn’t. The landmark Supreme Court ruling in The New York Times v. Sullivan has long established that public figures who sue news media outlets must prove that the reporting was not just false, defamatory and negligent (the standard for private citizens), but also must prove “actual malice” — that is, that the outlet either knew it was false, or demonstrated “reckless disregard” for the truth.
Elected officials and others in the public eye should face a higher bar to win a defamation suit than a private citizen minding his or her own business. Journalistic fear of getting hammered in court for an honest mistake could lead to timid coverage of politicians. Which, make no mistake, is exactly what Florida Gov. Ron DeSantis and others are seeking in their calls for the Supreme Court to overturn Sullivan.
The 1964 decision has given America arguably the most vibrant free press in the world. American politicians know that misbehavior risks exposure by aggressive journalists whose duty is to keep them honest. A return to the bad old days, in which media outlets could face bankruptcy for making mistakes that were neither intentional nor reckless when covering the powerful, would hobble the free press as surely as formal censorship.
DeSantis, who has long bristled at unflattering but accurate media coverage of his dangerous pandemic policies and culture-war stunts, convened a roundtable this month where he and others called for scuttling Sullivan. “How did it get to be this doctrine that has had really profound effects on society?” DeSantis said at the event, as if those effects were problems instead of a crucial undergirding of democracy.
Sullivan has protected journalists for almost 60 years now, but it’s not hard to imagine it coming under fire from a Supreme Court that has already shown its eagerness to trash longstanding precedent on abortion rights and gun safety laws. Justices Clarence Thomas and Neil Gorsuch have both indicated they think it should go.
Thomas’ view is rooted in his philosophy of constitutional originalism — the proposition that laws must be consistent with how the issues would have been understood at the time the Constitution was written. We have noted before the obvious problems with this approach, but in this case, the standards of Sullivan might adhere to it better than Thomas admits. The previous court predicated the Sullivan decision in part on a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” That commitment is made clear in the special stature the Framers gave to the free press and free speech. Today’s court must not undermine it.