In my post on the family of the Covington teenager’s defamation suit against the Washington Post, I mentioned New York Times vs. Sullivan, the famous 1964 decision that made it substantially harder for public officials to win damages. Coincidentally, Justice Clarence Thomas issued a concurring opinion yesterday arguing that that case was wrongly decided and ought be overturned when an appropriate case comes before the Court.
NYT (“Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling“):
Justice Clarence Thomas on Tuesday called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it hard for public officials to prevail in libel suits.
He said the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it.
“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote.
Justice Thomas, writing only for himself, made his statement in a concurring opinion agreeing that the court had correctly turned down an appeal from Kathrine McKee, who has accused Bill Cosby of sexual assault. She sued Mr. Cosby for libel after his lawyer said she had been dishonest.
An appeals court ruled against Ms. McKee, saying that her activities had made her a public figure and that she could not prove, as required by the Sullivan decision, that the lawyer had knowingly or recklessly said something false. Ms. McKee asked the Supreme Court to review the appeals court’s determination that she was a public figure.
Justice Thomas wrote that he agreed with the court’s decision not to take up that question. “I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place,” he wrote.
In Justice Thomas’s view, the First Amendment did nothing to limit the authority of states to protect the reputations of their citizens and leaders as they saw fit. When the First Amendment was ratified, he wrote, many states made it quite easy to sue for libel in civil actions and to prosecute libel as a crime. That was, he wrote, as it should be.
“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Justice Thomas wrote of the Sullivan decision. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”
Reporter Adam Liptak then launches into an editorial beginning with, “The events leading to the Sullivan decision test that assertion.” I tend to agree with him but that’s tangential to my purpose here.
Now, I’m more sympathetic than most OTB readers to both Justice Thomas and the notion that the Constitution ought be interpreted according to its text and the context of the times in which it was written. Still, I think he’s mostly wrong here.
Initially, based on the excerpts from Liptak’s report, I was puzzled by Thomas’ focus on the First Amendment’s treatment of the role of the several states since, while he’s right, it’s not what the ruling was based upon. Rather, the Court was incorporating the First Amendment’s free press protections to the states via the Equal Protection Clause of the Fourteenth Amendment. But, looking at the concurrence itself, it’s clear Thomas understands that:
We should not continue to reflexively apply this policy-driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.
After a lengthy discussion of the findings and process of NYT vs Sullivan and related follow-on cases, Thomas asserts:
None of these decisions made a sustained effort to ground their holdings in the Constitution’s original meaning. As the Court itself acknowledged, “the rule enunciated in the New York Times case” is “largely a judge-made rule of law,” the “content” of which is “given meaning through the evolutionary process of common-law adjudication.” Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 501-502 (1984). Only Justice White grappled with the historical record, and he concluded that “there are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering them powerless to protect themselves.” Gertz, supra, at 370 (dissenting opinion).
But the Common Law is by definition judge-made. And, while I generally oppose wholesale invention of new Constitutional rights by five-ninths of the Supreme Court, the very nature of judicial review combined with the Common Law principle of stare decisis means that, over time, the findings as to individual cases in controversy will form a web of precedent that informs later decisions. Further, defamation law was always a matter of Common Law interpretation. And this became especially true in the United States, which early deviated from the English tradition in declaring that truth was “an absolute defense” against claims of defamation. (Indeed, it’s still not that way in the UK.)
Thomas goes on:
The common law of libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages. Typically, a defamed individual needed only to prove “a false written
publication that subjected him to hatred, contempt, or ridicule.”[…]
[W]here the publication was false, even if the defendant could show that no reputational injury occurred, the prevailing rule was that at least nominal damages were to be awarded.
[…]
Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (“Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man”); 4 id., at *150 (defining libels as ”malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule” (emphasis added)). Libel of a public official was deemed an offense ”‘most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.’”
He goes on to note that the main way public figures were treated differently was that there was far more freedom to criticize them in the public arena than was afforded vis-a-vis private individuals. Still, Thomas rightly notes, this remained the case well into the 20th Century:
The Court consistently listed libel among the “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942); see, e.g., Beauharnais, supra, at 254-256, and nn. 4-5, 266 (libelous utterances are “not . . . within the area of constitutionally protected speech”); Near v. Minnesota ex rel. Olson, 283 U. S. 697, 715 (1931) (“[T]he common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions”).
He goes on at great length about how much New York Times v Sullivan broke with this tradition. Both the length and format make excerpting here difficult. Ultimately, he concludes:
It is certainly true that defamation law did not remain static after the founding. For example, many States acted ”by judicial decision, statute or constitution” during the early 19th century to allow truth or good motives to serve as a defense to a libel prosecution. Beauharnais, supra, at 254-255, and n. 4. Eventually, changing views led to the ”virtual disappearance” of criminal libel prosecutions involving individuals. Garrison, 379 U. S., at 69. But these changes appear to have reflected changing policy judgments, not a sense that existing law violated the original meaning of the First or Fourteenth Amendment.
In short, there appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.
Like Justice White, I assume that New York Times and our other constitutional decisions displacing state defamation law have been popular in some circles, “but this is not the road to salvation for a court of law.” Gertz, 418 U. S., at 370 (dissenting opinion). We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.
It’s true that, at least for true public officials, I think Sullivan is right on policy grounds. But I think it also brought, as was its stated purpose, defamation law and the freedom of the press generally in line with other First Amendment protections:
Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth — whether administered by judges, juries, or administrative officials — and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall, 357 U. S. 513, 357 U. S. 525-526. The constitutional protection does not turn upon “the truth, popularity, or social utility of the ideas and beliefs which are offered.” NAACP v. Button, 371 U. S. 415, 371 U. S. 445. As Madison said, “Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press.” 4 Elliot’s Debates on the Federal Constitution (1876), p. 571. In Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 310, the Court declared:
“In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.”
That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the “breathing space” that they “need . . . to survive,” NAACP v. Button, 371 U. S. 415, 371 U. S. 433, was also recognized by the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S. 678. Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman’s libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial appointment. He said:
“Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. . . . The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information. Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man’s mental states and processes, are inevitable. . . . Whatever is added to the field of libel is taken from the field of free debate. [Footnote 13]”
Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U. S. 252. This is true even though the utterance contains “half-truths” and “misinformation.” Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 342, 328 U. S. 343, n. 5, 328 U. S. 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. See also Craig v. Harney, 331 U. S. 367; Wood v. Georgia, 370 U. S. 375. If judges are to be treated as “men of fortitude, able to thrive in a hardy climate,” Craig v. Harney, supra, 331 U.S. at 331 U. S. 376, surely the same must be true of other government officials, such as elected city commissioners. [Footnote 14] Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism, and hence diminishes their official reputations.
There’s a lot more to the opinion than that but, for me, that’s the crux.
To me, this is quite different than, say, the finding of a theretofore undiscovered Constitutional right of privacy in Griswold. Here, the court is expanding a specifically-listed Constitutional right—the First Amendment’s protection against the abridgment of a free press—by clearing away an interpretation of libel law stemming from a feudal society that the Constitution—indeed, America’s very founding—sought to leave behind.
Thomas might be on firmer ground here if he were objecting more broadly to the selective incorporation of various rights by the judiciary well after the enactment of the Fourteenth Amendment. But he doesn’t seem to be making that argument. Indeed, he seems to acknowledge that the Fourteenth has a role here.
Beyond all of that, even if one takes a textual or strict constructionist view of Constitutional interpretation, there’s the matter of stare decisis. Even the late Antonin Scalia granted that there was such a thing as settled law. While longer-standing precedents than Sullivan have indeed been overturned, it’s usually only in extreme cases like the infamous “separate but equal” ruling in Plessy v Furguson. While I understand where Thomas is coming from with regard to judge-made law, there really needs to be a good public policy reason to overturn something this established—especially since doing so goes in the direction of diminishing, rather than enhancing, freedom.
UPDATE: As noted in the earlier post about the Covington lawsuit, I do think it’s worth considering whether post-Sullivan decisions may have gone too far in making public figures out of ordinary citizens. But the core holding in Sullivan strikes me as both consistent with the Constitution and the Common Law principles of free expression when applied to public officials.
