White on New York Times v. Sullivan

G. Edward White, University of Virginia School of Law, has posted Reconsidering the Legacy of New York Times v. Sullivan:

This Article argues that the “actual malice” standard for recovery in defamation cases should be abandoned outside cases in which the plaintiff is a “public official,” currently defined as an employee of the government whose office invites public scrutiny and comment. The actual malice standard prevents many categories of plaintiffs from recovering substantial amounts of damages without showing, by clear and convincing evidence, that a defendant either intentionally made a false and damaging statement about the plaintiff or made it with reckless disregard as to whether the statement was true or false. The Article identifies four features affecting defamation cases not involving public officials that point in the direction of reconsidering the actual malice standard in those cases. Two are doctrinal: the Court’s failure, in New York Times v. Sullivan, to clearly articulate the source of the actual malice standard because of its concern about southern states’ use of defamation law to deter criticism of their resistance to racial integration; and its subsequent misguided application of the actual malice standard to defamation cases that did not raise the constitutional issues it identified in New York Times. Two are cultural. The first of those is changes in the landscape of media communications in the sixty years since the Times decision, notably the more ideological character of mainstream media and an increased frequency of communications on the internet by anonymous persons. The second is the advent of media insurance, which makes it possible even for defendants who have violated the actual malice standard to secure themselves immunity from defamation judgments. The combination of those features has made it very difficult for persons injured by false and damaging statements about them to sue successfully in defamation. Meanwhile the Court’s departure in post-New York Times cases from the principal First Amendment concerns in defamation actions, a “chilling effect” on speech that invites media self-censorship unless a “breathing space” for some false and damaging communications is afforded, has served to obscure the central meaning of New York Times. The Article proposes a framework for defamation cases that deconstitutionalizes actions in which the plaintiffs are not public officials, restoring much of defamation law to its common law roots. That alteration would not necessarily result in more successful defamation actions, as the common law of defamation contains its own privileges and available defamation defendants will continue to be difficult to identify in today’s media landscape. The Article invites litigators to consider bringing cases to the current Court in which it has an opportunity to revisit its decisions in Curtis Publishing Co. v. Butts, Associated Press v. Walker, and Gertz v. Robert Welch.

--Dan Ernst