With the nationwide proliferation of defamation lawsuits in recent years, a question that often arises among legal scholars and First Amendment enthusiasts is whether the seminal case of New York Times v. Sullivan should remain good law. Does the “actual malice” standard articulated in Sullivan offer critical protections to ensure the robust exchange of ideas in society, or is it an “ironclad subsidy for the publication of falsehoods”? As with most controversial issues, there are two sides to this coin.
Courtesy of Nicole Poirot
Defamation Law: Pre- and Post-Sullivan
While defamation law has existed for decades, in the early years it was largely a creature of state statute and common law jurisprudence. California has long defined defamation as “an invasion of the interest in reputation,” involving “the intentional publication of a statement of fact that is false, unprivileged, and has a tendency to injure or which causes special damage.” Smith v. Maldonado, 72 Cal. App. 4th 637, 645 (1999).
Prior to 1964, there was no ruling by the U.S. Supreme Court regarding whether or how the First Amendment limits the elements of a defamation claim. That changed with the high court’s opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which considered the extent to which the freedom of speech and freedom of the press limit a state’s power to issue a judgment in a libel case brought by a state official against his critics.
To understand Sullivan, it is important to consider its social and political context. At the time, the country was in the throes of the civil rights movement. Large newspapers like the New York Times were often sued for defamation when they reported on instances of racial oppression or civil uprising by African Americans opposing segregation, discrimination, and disenfranchisement. Frequently, Southern juries would return libel verdicts against the newspapers, creating an environment that stifled voices that opposed the Southern leaders who favored segregation.
It was against this background that the Supreme Court decided Sullivan. Plaintiff L.B. Sullivan was an elected commissioner for the City of Montgomery, Alabama who claimed that he was libeled by an advertisement authored by African American civil rights activists and published in the New York Times. The advertisement chronicled the waves of terror and oppression endured by civil rights activists at the hands of the police. While the advertisement did not mention Sullivan by name, Sullivan claimed that a reference to the “police” concerned him, as the Montgomery Commissioner who supervised the police department. It was undisputed that some of the statements at issue were not accurate descriptions of events that occurred in Montgomery. The question, then, was whether Sullivan’s defamation claim could prevail, considering the protections of the First Amendment.
The Supreme Court concluded that it could not. First, the Court noted that “erroneous statement is inevitable in free debate” and “must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive.’” Sullivan at 721, quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1942). The Court held that public officials had to be more resilient to criticism, stating that “[i]f judges are to be men of fortitude, able to thrive in a hardy climate, surely the same must be true of other government officials, such as elected city commissions. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.” Id. at 273. Ultimately, the Sullivan Court was concerned that the press would self-censor out of fear of liability for criticism of public officials. See Sullivan at 279. It emphasized the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” and recognized that such debate “may well include vehement, caustic, and sometimes unpleasant sharp attacks on government and public officials.”
However, the Court was not completely unsympathetic to the Commissioner’s plight and that of future public officials and did not fully close the door to defamation suits by public officials. Instead, the Court held that “[t]he constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279–80. This is referred to as the “actual malice” standard, and it has fundamentally changed the way defamation cases are decided.
Reconsidering Actual Malice
In the nearly fifty years since Sullivan was decided, the actual malice standard has been interpreted more and more broadly by courts nationwide. Although Sullivan’s application of the “public figure” designation was expressly limited to an individual holding public office, over the years, courts have expanded the definition of “public figure” to include those in the public spotlight more generally (e.g. celebrities, influential individuals, etc.), as well as “limited-purpose public figures,” defined as people who “thrust [themselves] into the vortex” of an existing public controversy or otherwise “engage the public’s attention in an attempt to influence its outcome.” McKee v. Cosby, 874 F.3d 54 (1st Cir. 2017), citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351-52 (1974). Indeed, in McKee v. Cosby, an alleged victim of celebrity entertainer Bill Cosby was held to be a limited-purpose public figure, with the First Circuit holding that “[b]y purposefully disclosing to the public her own rape accusation against Cosby via an interview with a reporter, McKee ‘thrust’ herself to the ‘forefront’ of this controversy, seeking to ‘influence its outcome.’” McKee at 62. As such, the court held that McKee was required to show actual malice in connection with her accusations of misconduct by Mr. Cosby.
In recent years, the actual malice standard has drawn criticism by those who argue that it is inconsistent with the ideals of the First Amendment and that it is an impossible standard for public officials to meet. For example, Justice Thomas’s concurring opinion in McKee argued that “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own ‘federal rule[s]’ by balancing the ‘competing values at stake in defamation suits.’” McKee v. Cosby, 139 S. Ct. 675, 676 (2019) (Thomas, C., concurring). Justice Thomas opined that the Constitution does not require public officials to satisfy an actual-malice standard. Id.
Justice Thomas’s criticisms of the actual malice standard has been shared by other Supreme Court justices and legal scholars, some of whom have called for a change to the standard. In a dissent to an opinion denying a writ of certiorari, Justice Gorsuch stated that “[w]hat started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.” Berisha v. Lawson, 141. S. Ct. 2424, 2429 (July 2, 2021). Underlying this opinion seems to be the fact that—unlike in 1964—there are now countless news outlets, some of dubious legitimacy, which can spread falsehoods whilst enjoying the protections offered by the actual malice standard.
Professors and legal scholars have mounted similar challenges to Sullivan, arguing that it no longer serves the goals that it did when Sullivan was decided and may be inapplicable and harmful in modern times. See, e.g., John B. Lewis & Bruce L. Ottley, New York Times v. Sullivan at 50: Despite Criticism, The Actual Malice Standard Still Provides “Breathing Space” for Communications in the Public Interest, 64. De Paul L. Rev. (2014) (exploring the potential of the Times standard to harm public civility and self-government by setting a bar too high for recovery of reputational damages for “intentionally and negligently false statements” and protecting false allegations of fake birth certificates, abuse, and other scandalous statements); John M. Kang, Why the Actual Malice Test Should Be Eliminated, 50 Fla. St. U. L. Rev. 513 (2023) (arguing that the actual malice test empowers speakers to publish false articles with impunity).
Some state courts have also indicated a willingness to narrow the application of the actual malice test. For example, in the recent case of Collins v. Waters, 92 Cal. App. 5th 70 (2023), the California Appellate Court lowered the bar for what sufficed to allege actual malice by holding that where a defendant had been provided with documentary evidence that proved the falsity of her statement but published the statement anyway, “[a] reasonable jury could conclude [defendants’] lack of interest was studied: a purposeful effort to maintain plausible deniability. If a factfinder drew an inference of willful blindness, it would impeach [defendant’s] claim of subjective blamelessness.” Id. at 81. The Court ruled that “[a]s a matter of federal constitutional law, [plaintiff’s exculpatory evidence] put [defendant] on notice of a considerable risk that conclusive evidence wholly disproved her accusations. It would have been easy for [defendant] to check, but [defendant] kept repeating the accusation without checking.” Id. at 81. This standard, while working within Sullivan’s framework, is more permissive for public figure defamation plaintiffs.
On the flip side of the coin, there are those who maintain that Sullivan was well-reasoned and that far from being a subsidy for news media, it protects all citizens who choose to speak about a public figure. Advocates of Sullivan stress the chilling effect on speech that would result if citizens were unable to criticize existing power structures without fear of legal consequences. See, e.g., Geoffrey Bennett & Russel L. Weaver, Is the New York Times “Actual Malice Standard Really Necessary? A Comparative Perspective, 53 La. L. Rev. (1993) (arguing that the actual malice standard affords important protection and that stems a flood of litigation).
The debate is not a simple one, and it’s far from over. Ultimately, it will be for the Courts or Congress to determine whether the actual malice standard remains a necessary feature of modern-day defamation law, or whether it has become a bug that needs fixing.
Krista L. Baughman is a partner of Dhillon Law Group, Inc., whose practice focuses on First Amendment, defamation, and anti-SLAPP law and litigation.
*The views expressed in this article do not represent the views of Santa Clara University.