The Supreme Court’s Looming Attack on Journalism In America

Last month, a Manhattan jury threw out Sarah Palin’s libel suit against the New York Times, which is good news—and bad. The good news is the jury found that the Times, which made a mistake about Palin in an editorial, will not have to pay damages to the former Republican vice presidential nominee and current right-wing windbag. The bad news is that Palin v. New York Times may be headed to the Supreme Court, where right-wing windbags have a half-dozen powerful allies these days.

If they were to grant certiorari, the conservatives could use this case or one like it to reverse New York Times v. Sullivan, the 1964 decision that is the bulwark of the media’s protection against libel lawsuits. Two justices, Clarence Thomas and Neil Gorsuch, have already made clear they are gunning for Sullivan. Now, it’s quite possible, given the Court’s current far-right slant, that there could be five votes to overturn it, or dramatically scale it back.

Attacks on the Times, CNN, and other mainstream media have long been cheap applause lines at Republican rallies. Conservatives have increasingly focused on weakening libel laws as a way to force the media to rein itself in or, even better, to drive them out of business. “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” Donald Trump declared in 2016. He vowed to change the law “so when the New York Times writes a hit piece…we can sue them and win money instead of having no chance of winning because they’re totally protected.”

When conservatives talk about changing libel law, they mean reversing New York Times v. Sullivan. It’s hard to overstate how important that landmark decision has been for press freedoms. Until 1964, states were free to set the rules for libel lawsuits, and it was easy to sue the media. Massive damage awards posed a major threat to the dissemination of the news.

The Sullivan of New York Times v. Sullivan was an elected Montgomery commissioner who sued the Times over minor errors in an advertisement the paper ran in support of civil rights protestors. (Sullivan wasn’t even named in the advertisement, but he argued that it cast aspersions on his job performance.) An all-white Alabama jury awarded him $500,000. When the Court decided the case in 1964, it was only one of 11 libel lawsuits by state and local officials pending against the Times in Alabama alone. Across the South, government officials had filed $300 million in libel lawsuits against the media.

The Court understood that if libel suits were allowed to proceed under lenient state rules, they could bankrupt the media and stifle news about the civil rights movement. To protect freedom of the press, it adopted a national constitutional standard for libel: To recover, it ruled, a public official must prove “actual malice,” meaning a journalist knew the published information was false, or published it with reckless disregard for whether or not it was.

In later cases, the Court extended the protections not only to coverage of “public officials” but also “public figures”—well-known people who might not be government officers. And in 1968, in St. Amant v. Thompson, it held that journalists had to actually doubt a statement’s truth to meet this “reckless disregard” standard—it was not enough to show that a “reasonable person” under the circumstances would have doubted its truth.

Sullivan and the line of cases that followed made an enormous difference to American journalism. It was hard to prove “actual malice,” and as a result, the media no longer had to shy away from covering powerful people who might sue them. The Times and other media covered the Civil Rights Movement energetically, and it is rare today to hear of a subject the media steers clear of to avoid litigation. (There are exceptions: For years, it was said that the famously litigious Church of Scientology succeeded in scaring many journalists from aggressively covering them.)

Conservatives have railed against Sullivan since it was decided. In 1986, Richard Epstein, a prominent University of Chicago Law School professor, wrote a law review article entitled “Was New York Times v. Sullivan Wrong?”—a question he answered in the affirmative. When the case was decided, many conservatives hated it because it gave the national media more freedom to cover the Civil Rights Movement. Today, many conservatives hate it because they see it as protecting the mainstream media, which they see as hostile to them.

The decline in old-fashioned news sources means the protections of New York Times v. Sullivan are more necessary, not less.

It’s a much bigger deal, though, that two sitting Justices have now raised serious questions about Sullivan. In 2019, Thomas called for the Court to reconsider the ruling, characterizing it and several related opinions as “policy-driven decisions masquerading as constitutional law.” Last year, Gorsuch joined him, writing that “momentous changes in the Nation’s media landscape since 1964” may be reason to reconsider the decision.

Both justices have wrapped their opposition in trendy criticisms of the media. Thomas suggested the libel standard contributes to the proliferation of disinformation and conspiracy theories like “Pizzagate,” which falsely alleged that a Washington, D.C. pizzeria was home to a child sex ring with ties to Hillary Clinton. Gorsuch argued that the press freedoms of 1964 might not be appropriate today, now that old-fashioned, reliable news sources have been supplanted by “24-hour cable news and online media platforms that ‘monetize anything that garners clicks.’” They would only need the votes of three of the remaining four conservative justices—Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett—to usher in a First Amendment revolution.

The regime New York Times v. Sullivan established was about giving the media “breathing space,” the Court said, to do journalism without fear of being sued into oblivion. That breathing space is all the more necessary today, when news budgets have shrunk and a lot of important journalism is done by reporters who do not work for major media organizations that can provide them with lawyers and pay damage awards. In fact, Gorsuch has it exactly wrong: The decline in old-fashioned news sources means the protections of New York Times v. Sullivan are more necessary, not less.

The errors the Times made about Palin were unfortunate: a poorly-edited editorial that wrongly connected her political action committee to a 2011 Arizona mass shooting in which then-Rep. Gabrielle Giffords was wounded, even though there was no evidence of a connection. But there is no reason to believe the paper’s journalists knew it was wrong or acted with reckless disregard. It was a fairly generic error of the sort that only-human editors sometimes make, and it was quickly corrected.

Conservatives, however, would like to use this unremarkable mistake to rewrite libel law. If the Court’s right-wing justices do that, they could make journalists fearful of hard-hitting reporting—particularly about the rich and powerful, who are most able to sue. Is that something we should all be afraid of? As the petitioner in Palin v. New York Times might put it, “You betcha.”

Adam Cohen was previously a member of The New York Times editorial board. He was not involved in the publication of the editorial discussed in this essay.