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From this morning’s opinion concurring in the Court’s refusal to hear the case Blankenship v. NBCUniversal, LLC (for more on the underlying dispute, which involved then-Senate-candidate Don Blankenship suing outlets for calling him a felon when he had been convicted only of a serious misdemeanor, see here):

“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.” To be sure, the law was not static; “[i]n the first decades after the adoption of the Constitution,” the rule that “truth or good motives was no defense” to libel “was changed by judicial decision, statute or constitution in most States.” But from the founding until 1964, the law of defamation was “almost exclusively the business of state courts and legislatures.”

The Court usurped control over libel law and imposed its own elevated standard in New York Times Co. v. Sullivan (1964). It decreed that the Constitution required “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.” The Court did not base this “actual malice” rule in the original meaning of the First Amendment. It limited its analysis of the historical record to a loose inference from opposition surrounding the Sedition Act of 1798, and primarily justified its constitutional rule by noting that 20th century state-court decisions and “the consensus of scholarly opinion apparently favor[ed] the rule.”

I continue to adhere to my view that we should reconsider the actual-malice standard. “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” The decisions have “no relation to the text, history, or structure of the Constitution.” And the actual-malice standard comes at a heavy cost, allowing media organizations and interest groups “to cast false aspersions on public figures with near impunity.” The Court cannot justify continuing to impose a rule of its own creation when it has not “even inquired whether the First or Fourteenth Amendment, as originally understood, encompasses an actual-malice standard.”

Petitioner Don Blankenship asks us to revisit New York Times. I agree with the Court’s decision not to take up that question in this case because it appears that Blankenship’s claims are independently subject to an actual-malice standard as a matter of state law. See State ex rel. Suriano v. Gaughan (W. Va. 1996). In an appropriate case, however, we should reconsider New York Times and our other decisions displacing state defamation law.

Justice Gorsuch has at times similarly called for reconsidering New York Times v. Sullivan, and Justice Kagan, back in 1993 (when she was an academic), criticized New York Times v. Sullivan as well. But here Justice Thomas was writing by himself.

For those who are interested, I thought I’d repeat some excerpts from some of the classic arguments by the Justices in this area (I should note that I tentatively support keeping the New York Times rule, as likely the lesser of the evils, but I think there are important arguments on both sides).

[1.] First, Justice Brennan in New York Times, arguing for the “actual malice” test:

“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…. 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.”

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error…. [Government officials] are to be treated as “men of fortitude, able to thrive in a hardy climate” …. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations….

The state rule of law [which generally imposed strict liability for defamation] is not saved by its allowance of the defense of truth…. A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to … “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. {Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about “the clearer perception and livelier impression of truth, produced by its collision with error.” Mill, On Liberty.} …

Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” The rule thus dampens the vigor and limits the variety of public debate….

The 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….

[2.] Some more from Justice Brennan in Garrison v. Lousiana (1964), explaining why he wouldn’t go all the way to abolishing libel claims even as to knowing or reckless falsehoods (as Justices Black, Douglas, and Goldberg had argued, at least for speech on matters of public concern):

Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration….

[T]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality….” Chaplinsky v. New Hampshire….

[3.] Then still more from Justice Brennan’s dissent in Gertz v. Robert Welch, Inc. (1974), arguing against a negligence standard (which the Gertz majority adopted when private figures sought proven compensatory damages):

Adoption … of a reasonable-care standard … will likewise lead to self-censorship since publishers will be required carefully to weigh a myriad of uncertain factors before publication. The reasonable-care standard is “elusive”; it saddles the press with “the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.” Under a reasonable-care regime, publishers and broadcasters will have to make pre-publication judgments about juror assessment of such diverse considerations as the size, operating procedures, and financial condition of the newsgathering system, as well as the relative costs and benefits of instituting less frequent and more costly reporting at a higher level of accuracy….

And, most hazardous, the flexibility which inheres in the reasonable-care standard will create the danger that a jury will convert it into “an instrument for the suppression of those ‘vehement, caustic, and sometimes unpleasantly sharp attacks,’ … which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.”

[4.] And now Justice White in his concurrence in the judgment in Dun & Bradstreet v. Greenmoss Builders (1985), arguing against the “actual malice” test:

I have … become convinced that the Court struck an improvident balance in the New York Times case between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation…. Criticism and assessment of the performance of public officials and of government in general … are not at all served by circulating false statements of fact about public officials. On the contrary, erroneous information frustrates these values. They are even more disserved when the statements falsely impugn the honesty of those men and women and hence lessen the confidence in government….

Yet in New York Times cases, … [t]he lie will [often] stand, and the public continue to be misinformed about public matters … because the putative plaintiff’s burden is so exceedingly difficult to satisfy and can be discharged only by expensive litigation. Even if the plaintiff sues, he frequently loses on summary judgment [or on appeal] … because of insufficient proof of malice…. [And when the plaintiff gets before a jury], the jury will likely return a general verdict [because of insufficient proof of actual malice] and there will be no judgment that the publication was false ….

The public is left to conclude that the challenged statement was true after all. Their only chance of being accurately informed is measured by the public official’s ability himself to counter the lie, unaided by the courts. That is a decidedly weak reed to depend on for the vindication of First Amendment interests—”it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not ‘hot’ news, and rarely receive the prominence of the original story.”

{It might be suggested that courts, as organs of the government, cannot be trusted to discern what the truth is. But the logical consequence of that view is that the First Amendment forbids all libel and slander suits, for in each such suit, there will be no recovery unless the court finds the publication at issue to be factually false.

Of course, no forum is perfect, but that is not a justification for leaving whole classes of defamed individuals without redress or a realistic opportunity to clear their names. We entrust to juries and the courts the responsibility of decisions affecting the life and liberty of persons. It is perverse indeed to say that these bodies are incompetent to inquire into the truth of a statement of fact in a defamation case.}

Also, by leaving the lie uncorrected, the New York Times rule plainly leaves the public official without a remedy for the damage to his reputation. Yet the Court has observed that the individual’s right to the protection of his own good name is a basic consideration of our constitutional system, reflecting “our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.” The upshot is that the public official must suffer the injury, often cannot get a judgment identifying the lie for what it is, and has very little, if any, chance of countering that lie in the public press….

[I]f protecting the press from intimidating damages liability that might lead to excessive timidity was the driving force behind New York Times[,] … the Court engaged in severe overkill…. [I]nstead of escalating the plaintiff’s burden of proof to an almost impossible level, we could have achieved our stated goal by limiting the recoverable damages to a level that would not unduly threaten the press. Punitive damages might have been scrutinized … or perhaps even entirely forbidden. Presumed damages to reputation might have been prohibited, or limited, as in Gertz v. Robert Welch, Inc….

It could be suggested that even without the threat of large presumed and punitive damages awards, press defendants’ communication will be unduly chilled by having to pay for the actual damages caused to those they defame. But other commercial enterprises in this country not in the business of disseminating information must pay for the damage they cause as a cost of doing business, and it is difficult to argue that the United States did not have a free and vigorous press before the rule in New York Times was announced….

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