Donald Trump may find that there are limits to how far he can go in tearing down the First Amendment’s guarantee of a free press. Adam Liptak reports in The New York Times (gift link) that the U.S. Supreme Court doesn’t seem inclined to revisit the libel protections of New York Times v. Sullivan, writing:
[I]t was notable that just five days before President Trump took office last month, the Supreme Court seemed to go out of its way to signal that it is not ready to embrace one of his most dearly held goals: to “open up our libel laws” and overrule the Sullivan decision.
That signal came in the form of an approving aside in a routine decision by Justice Brett Kavanaugh for Sullivan’s requirement that public officials must offer “clear and convincing evidence” in order to win a libel case — a higher barrier than a “preponderance of the evidence,” that standard that applies in most civil cases.
The heart of Times v. Sullivan, a unanimous decision handed down in 1964, is that public officials must prove “actual malice” in order to win a libel case. That is, they most show knowing falsehood or “reckless disregard” for the truth. Subsequent decisions extended the Sullivan standard to public figures and narrowed the definition of “reckless disregard.”
The decision was intended to shut down a wave of libel suits brought by racist Southern officials aimed at silencing coverage of the Civil Rights Movement. The Sullivan standard also enabled investigative reporting on matters such as the Watergate scandal, since publishers no longer had to worry that small, inadvertent errors would bring about financial ruin.
Press-freedom advocates have been holding their breath since Justice Clarence Thomas wrote that he would, if given the chance, overturn the Sullivan decision and Justice Neil Gorsuch said he favored severely curtailing it. As I wrote for GBH News in 2021:
What seems impossible today may become reality in the not-too-distant future. Changes to libel protections that we had long taken for granted are starting to look inevitable, especially in the hands of a Supreme Court built by Trump and Mitch McConnell.
But maybe Sullivan is secure, at least for now. “All of this suggests that there remain only two votes to overturn the Sullivan decision,” Liptak writes, “well short of the four it takes to add a case to the court’s docket, much less the five required to prevail on the merits.”
Still, threats remain. Liptak observes that numerous challenges to Sullivan, citing Thomas and Gorsuch, have been filed in the past few years. Just last week, casino mogul Steve Wynn filed an appeal in his ongoing libel suit against The Associated Press and asked that Times v. Sullivan be overturned. Howard Stutz of The Nevada Independent quotes David Orentlicher, a law professor at the University of Nevada at Las Vegas, who says:
This would be a dangerous time to revisit the protection of the free press. Unfortunately, we have an administration that has decided to target the press and others who write critical commentary. There is a blurring of lines between government officials and private persons who have power. This is exactly the wrong time to weaken the protection of the press.
Moreover, none of this does anything to stop deep-pocketed libel defendants such as ABC and possibly CBS from giving in to bogus suits filed by Trump in order to advance their business interests. So far, at least, the Des Moines Register and its parent company, Gannett, are holding firm in the face of Trump’s most ridiculous lawsuit — that they somehow engaged in “consumer fraud” by publishing the results of a poll that turned out to be way off the mark. The pollster, J. Ann Selzer, is being sued as well. Trump has been joined by a right-wing organization called the Center for American Rights, as Robin Opsahl reports for the Iowa Capital Dispatch.
Perhaps a signal from the Supreme Court that the protections of Times v. Sullivan remain secure will serve to stiffen the backbone of news organizations and their parent companies. If they’re not willing to fight for press freedoms that they already have, then the Sullivan decision is worth very little.
