Thoughts on Revisiting New York Times v. Sullivan

I appreciate George’s thoughtful post on Justice Gorsuch’s view that the framework of New York Times v. Sullivan may facilitate the spread of falsehood. I have a handful of questions but few solutions.

First, it strikes me that the problem is less the Sullivan standard than the subsequent cases that expanded its coverage from public officials to increasingly hazy categories of public figures. For reasons I suggest below, I do not see libel law as a viable means of ensuring that actual public officials–or aspirants to office–are spoken about truthfully. I would like to hear more about how the “actual malice” standard might be reformed with respect to true public officials. The basic idea of tolerating some falsehood about public officials to ensure a broad space for commentary and reporting surrounding them still seems sound to me.

Second, we should take note of the fact that Justice Thomas’ opinion on the same petition on which Gorsuch wrote suggested he would have gone much further in eroding Sullivan on what seemed to be overly cramped textualist grounds. The Sullivan standard, Thomas wrote, could not be found in the “text, history, or structure of the Constitution.” That reading leaves inadequate room for applying the First Amendment to libel cases in a way that meaningfully protects the explicit historical purposes of a free press.

Third, I am uncomfortable with Gorsuch’s distinction between the institutional press of 1964–equipped with fact-checkers and expert journalists–and the social media landscape of today. It is true that the latter is a Wild West. It is less clear that there are originalist or textualist grounds on which the distinction can be maintained. The press of the Founding era, and considerably beyond, was deliberately partisan. Gorsuch suggests the fact that publishing until recently took considerable investment served as a limit on the scale of misinformation. I don’t know that the courts can decide cases on that question of scale. Neither Gorsuch nor George has suggested this, but we should be cautious about the courts trying to distinguish between protected and unprotected commentators.

Finally, I am unsure there is a solution in the law–whether of libel or recent (bipartisan) claims that social media platforms should be regulated–for what is fundamentally a problem of overly, perhaps willfully, credulous readers. I take Jon Rauch’s point that the whole information ecosystem can be polluted to an extent that makes discernment difficult even for conscientious consumers. But there is, in the end, no substitute for a public willing to make even minimal distinctions between truth and falsehood.

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