It’s rather strange that such a heated debate is raging over the 'actual malice” standard. These words, now a lodestar of constitutional law, almost didn’t make it into [New York Times v.] Sullivan at all. None of the litigants in that case argued for such a rule, nor was there much debate about it during oral argument. Justice William Brennan, who wrote the opinion in the case, claimed that his clerks came up with it in chambers. Perhaps unsurprisingly for a rule fashioned on the fly, there really is much to criticize about it....
Lakier puts a link on "clerks," and it goes to a law review article that says, "In later years, Justice Brennan would recall that his clerks discovered the opinion’s 'actual malice' language, but in fact, it was contained in Herbert Wechsler’s brief." Wechsler argued the case for the New York Times.
Lakier's conclusion calls the "actual malice" standard "an accident of
history":
The rule is an icon of American constitutional law and unique in the common-law world. It’s an emblem of American free-speech exceptionalism and a source of pride. But it’s also, to some extent, an accident of history. We need not let Sullivan limit our imagination of how First Amendment law could better serve the public interest in a vastly different media environment from the one in which the decision was handed down.
As a writer in this "vastly different media environment," I think New York Times v. Sullivan is more valuable than ever. Go ahead ahead and exercise your "imagination" over how First Amendment law could "better serve" your idea of "the public interest," but the Supreme Court needs to keep the iconic precedent that we have relied on for so long.
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68 comments:
i thought it was agreed, that the more groundless and erroneous a precedent was;
the MORE important that we keep it? You know? Like Roe v Wade?
Bad rulings stare at decent rulings and taunt "nanana! I'm a precedent!!"
Go ahead ahead and exercise your "imagination" over how First Amendment law could "better serve" your idea of "the public interest,"
The left imagines a misinformation standard…
We need not let Sullivan limit our imagination of how First Amendment law could better serve the public interest
OK, you have won me over. It's pretty plain that they are licking their chops over the idea of disemboweling the first amendment. They might grudgingly concede a victory to Sarah Palin, who no longer matters, to get Joe Rogan silenced for good.
on free speech - is anyone here old enough to recall listening to adults talk about the times before the income tax was passed? Ever hear the phrase "back when you could keep what you made"?
I suspect we may see a time when we will be sitting around using the phrase "back when you could say what you think". Hope not.
We had a good run, didn't we? We did well. I pray for our children and grandchildren.
What's in question isn't so much the public's right to know but the newspaper's right to clickbait.
Keep it? Then SCOTUS needs to clarify what the phrase “actual malice” means because deference to Sullivan appears to put an undue burden on “public figures” that seems wrong. It’s not equal justice. Does being “Internet famous” count? What if no one old enough to serve as a juror has heard of the “Internet famous” plaintiff? Why should the extent of public exposure determine how much care a publisher takes to print only true defamatory statements?
"As a writer in this "vastly different media environment," I think New York Times v. Sullivan is more valuable than ever. Go ahead ahead and exercise your "imagination" over how First Amendment law could "better serve" your idea of "the public interest," but the Supreme Court needs to keep the iconic precedent that we have relied on for so long."
You might feel different had the NY Times published a bald faced lie calling you an accessory to mass murder.
But over the past few years, a growing number of scholars, judges and politicians have argued that the Sullivan rule does more harm than good, by removing incentives for journalists and other public speakers to be careful with the truth
…and that’s the sticking point. Traditional journalism has been destroyed and replaced with a monopoly of highly coordinated leftist propaganda, yet so much of the public (including people here) still consume their product as if it were news.
When Presidents are impeached over invented propaganda the incentives are in the wrong place.
Alas, it will probably take a leftist harmed by the game to change it…
Actual malice is fine so long as there is a finding of due diligence. Absent a requirement that the media outlet make some reasonable effort to get the story right, all the malice standard does is encourage sloppy journalism.
If you have an allegation that you really want to use but doubt its veracity, thanks to the malice standard, all you have to do is not check it out and you're home free.
Strikes me that there's a practical limit in how wrong one can be when writing something vilely defamatory and still call it a goof-up.
"reckless disregard" doesn't mean failing to do hours and hours of painstaking research on an issue vaguely reported anyway. It means not bothering to pick up stuff lying on the table yelling "Hey, look here!". Which you don't do without actual malice. And that doesn't count damning internal communications discovery discovers.Or, having demonstrably picked it up and looked at it, decided you didn't want to mess up your story with it.
"Yeah, I cover the White House. But I had no idea it was white. Why should I? My mistake. All innocent."
I know that many conservatives want Palin to win (and the NYT to lose) but wait until that new standard is applied to voices on the right. I suspect that it won’t look so good then.
I'm surprised she sued given they more or less corrected the piece. I'm more in favor of libel suits when the offender stubbornly refuse to correct the piece and demonstrate real malice even after a request for correction. Not correcting an error should be proof of malice.
The problem is the standard allows for too much actual malice and it created a two-tiered regime depending on notoriety.
Could not disagree more. Both newspaper and television news have long since expended any goodwill they may have had, and any good they have ever done is vastly outweighed by the harm. If they publish lies about someone, they should be held accountable. Period. They have destroyed their own reputations, and there is no reservoir of good will left. And make it hurt. If their behavior is egregious, then destroy their business with disabling awards.
Whatever is best for jurisprudence, it would be best long-term for the Times if they lost.
Not long after the Giffords shooting, the NYT published a "de-bunking" of the assertions by many leftists that Sarah Palin's PAC advertisement, showing scope crosshairs over a map of certain Democrat's Congressional Districts ("we're targeting your district"), was somehow the cause of an apolitical nutcase shooting Rep. Giffords.
Years later, they resurrect the leftist libel in an editorial stemming from the shooting of Steve Scalise, to make the point that politically inspired violence against Republicans is understandable (but wrong), just like violence against Democrats was wrong when Sarah Palin caused the Giffords shooting.
Hiding behind the "actual malice" standard in court, the NYT editorialists say we're not liable for that libel, because we didn't know (or have reason to know) that our news folks had already debunked the idea that Sarah Palin's ad had anything to do with the Giffords shooting.
It's not like they actually read what their paper had previously published!
It's not so much the actual malice standard that's the problem here; it's the idea that the NYT editorialists can be excused for not knowing what the NYT news folks had said about that very topic.
A little background: Lakier wrote the following about the deplatforming of Trump
One moment, it seemed, [Trump] was everywhere—propagating lies about election fraud and stoking riotous, violent mobs to storm the Capitol—and then, the next moment, he was gone.
...
The platforms’ reasons for these moves were entirely valid and incredibly serious: Trump and his allies were inciting violence and spreading dangerous lies. Indeed, the dangers of their speech became unmistakably clear on Jan. 6, when Trump’s demands that his supporters “fight like hell” led to the deaths of at least five people, the construction of a gallows on the Capitol lawn, and camouflaged men roaming the halls carrying zip ties and rope.
https://www.law.uchicago.edu/news/genevieve-lakier-deplatforming-trump
I guess it's time for me to watch that Paul Newman/Sally Field movie again. As I recall, the Newman character suffers real harm in his career because Sally publishes things about him--some of them true, but not relevant to any actual public-interest news story. Social media of course greatly amplifies such things.
"Lakier puts a link on "clerks," and it goes to a law review article that says, "In later years, Justice Brennan would recall that his clerks discovered the opinion’s 'actual malice' language, but in fact, it was contained in Herbert Wechsler’s brief." Wechsler argued the case for the New York Times."
As a judge, I've found it is not uncommon for lawyers to cite a case which does not at all support, and sometimes refutes, the proposed legal proposition. And thanks to professor Lakier for demonstrating a possible explanation for the source of the practice.
Why?
Another intellectually lazy, lying, partisan law prof from Chicago. What a surprise.
More NYTimes editors contradicting themselves in their mad scramble to bury the truth. Another surprise.
Justice William Brennan, who wrote the opinion in the case, claimed that his clerks came up with it in chambers.
What the fuck.
The Supreme Court is not a credible institution.
And Brennan's admittance here is treasonous.
The entire Legal Establishment needs to burn.
From the WaPoo editorial (via msn):
The standard isn’t always good for either publishers or public figures. It removes any legal incentive for those who write about public officials or public figures to vigorously fact-check their stories (though most news organizations do this anyway, recognizing that readers want accurate reporting)
No, the WaPoo's readers want the WaPoo to reinforce their left-wing worldview.
The problem here is not the system.
It is the corrupt shitheads that have no principles and demand to tell everyone else what to do.
That includes most supreme court justices.
Not sure how relevant it is but over the weekend I watched Absence of Malice with Paul Newman.
Not because of this case but because it popped up in my recommendations and it is always worth rewatching.
About the sleaziness of Newspapers back in the day. 1980 or so.
It does have a happy, fairy tale, ending. Presstitute Sally Field loses her job.
John LGBTQBNY Henry
You cant see a direct example of malicious libel in front of you.
Two dead protesters and counting, so who is being violent
Mike (MJB Wolf) said...SCOTUS needs to clarify what the phrase “actual malice” means because deference to Sullivan appears to put an undue burden on “public figures” that seems wrong. It’s not equal justice. Does being “Internet famous” count?
As with the too marrow meaning of "malice," the public/private figure distinction needs some fine tuning. Under the current system, the very slander leveled against a private person can make them famous, stripping them of the greater protection afforded a private citizen despite the fact that they never sought the limelight. As a result, the bigger the outlet, the more power they have to make someone famous, the more reckless they can be.
I think the actual malice standard should apply to actual journalists who gather information by speaking to sources or witnessing events firsthand. I think a different standard should apply to "journalists" who can't tell the difference between fact and opinion or who rely on the internet or online message boards for all of their "research."
"OK, you have won me over. It's pretty plain that they are licking their chops over the idea of disemboweling the first amendment. They might grudgingly concede a victory to Sarah Palin, who no longer matters, to get Joe Rogan silenced for good."
They think conservatives will go along with it since it means a victory for Sarah Palin over the NYT. Don't be tricked! The long-term effect is what matters here.
But it's Clarence Thomas and Neil Gorsuch who've written that they'd like to reconsider Sullivan. You may be a fan of theirs, but I don't think they care about new media.
"Hiding behind the "actual malice" standard in court, the NYT editorialists say we're not liable for that libel, because we didn't know (or have reason to know) that our news folks had already debunked the idea that Sarah Palin's ad had anything to do with the Giffords shooting."
The "actual malice" standard keeps them on hook if they had a "reckless disregard" for the truth, so Palin doesn't have to prove that they knew they had it wrong. You don't have to go so far as to overrule Sullivan for the NYT to be held responsible in this case.
Lodestar!
"an accident of history"
So much for the rule of "law."
Falsely labeling someone as racist should be a tort.
Ann Althouse said...The "actual malice" standard keeps them on hook if they had a "reckless disregard" for the truth,
This is why I don't support over-ruling Times v. Sullivan, but I do support fine-tuning it. The courts need to put some teeth in "reckless disregard" to make it more like a reasonable person standard. What level of fact-checking would a competent professional journalist who wanted to get the story right employ? If they did that, then they're safe. That's how the court approaches malpractice in most professions that, in the larger picture, we want to protect. They should do the same in journalism.
I am not going to argue Constitutional law with a distinguished professor of Constitutional law, not even a retired one. I will tell you how I would vote if I were on the jury for Sarah Palin’s case. I would start by wondering why editor James Bennet altered the content of his reporter’s article, and didn’t merely fix typos and grammatical errors, or condense to fit space. He could send texts to his reporter, why not call her directly? The point of his changes appears to have been not to add important information but a gratuitous slap at Palin, intended to defame her. And gratuitous slaps intended to defame should be punished.
I am going to add two points. First, to me, your post reads a lot like “this is how we’ve always done it.” And the answer to that is “So what?” We used to communicate using ink written with quill pens on vellum. How far back in time do you want to freeze things? Times change, technology changes. The law must keep up, or become irrelevant.
Second, I see your friend Glenn Reynolds, looking at the same problem, reaches a different conclusion. Instead of debating with us, who are not Constitutional scholars, perhaps you should debate with someone who is also a legal scholar, also teaches Con Law, and also a major blogger?
If they keep "actual malice," perhaps they might consider renaming the standard? If it's actual knowledge or recklessness, just boil it down to "recklessness!" To the ordinary reader, the use of the term "malice" suggests a standard that is both more stringent and more permissive than what I understand the actual standard to be, viz. that one doesn't have to prove animus against the plaintiff for plaintiff to win, but also that real animus plus mere negligence would be insufficient. If one of the functions of public law is to allow the nonspecialist public to understand what the law forbids, then more clarity in the language used would be welcome. Otherwise we might as well still be saying "Oyez!" and talking about how defendant "ject le dit brickbat" and so on.
This sounds like they'll know Palin will win. The powerful always want to change the rules when the game isn't going their way.
Calvinball was more than a good idea; it's reality.
If an accountant, doctor, engineer, or lawyer makes a mistake professionally, even if in good faith, there is severe liability. Journalists are not in the same class. They defend their "mistakes" by replying, "I wasn't lying, I was just stupid." This lack of accountability should be formalized by recognizing that journalism has always been the art of moving public opinion by saying whatever works. Journalism is politics among the adverts.
Reynolds paper is very interesting. Emphasis mine.
By 1964, when the Sullivan case came before the Court, “government officials had filed at least $300 million in libel actions against newspapers, news magazines, television networks, and civil rights leaders.”19
These lawsuits were intended to chill or banish negative coverage. As Anthony Lewis wrote, the libel campaign was a “state political weapon to intimidate the press. The aim was to discourage not false but true accounts of life under a system of white supremacy . . . . It was to scare the national press—newspapers, magazines, the television networks—off the civil rights story.”20 A private communication between Birmingham Commissioner J.T. Waggoner, a plaintiff in another libel suit, and his attorney James A. Simpson “casts some doubt on whether Waggoner felt defamed personally. Simpson told Waggoner the suit would help deter newspapers such as the Times from committing ‘ruthless attacks on this region and its people. I am sure this is the primary motive which has prompted you to embark on this troublesome litigation.’
The left doesn't want to ensure the media sticks rigorously to the truth either, they want to intimidate those who question their prerogatives of power. Basically they left wants to dust off a tool that white supremacists used under Jim Crow the same way they have dusted of the Reichstag Fire playbook the Nazis used, in order to silence opposition.
AA says ,[t]he "actual malice" standard keeps them on hook if they had a "reckless disregard" for the truth ...
Yes, that standard should work. But in practice the "should have known" part of it tends to get overlooked. The fact that the NYT puts on a defense asserting that they didn't know or have reason to know (that Palin was not at fault for Giffords) shows that they believe the editorialists are NOT charged with knowing what the news folks plainly knew, which amounts to saying that "should have known" is an impossible standard to meet. We don't even have to read our own paper!
Re: tim maguire:
The courts need to put some teeth in "reckless disregard" to make it more like a reasonable person standard. What level of fact-checking would a competent professional journalist who wanted to get the story right employ? If they did that, then they're safe. That's how the court approaches malpractice in most professions that, in the larger picture, we want to protect. They should do the same in journalism.
But those other professions are real professions -- journalism is just a bunch of hacks with a gossip rag. The "profession" doesn't need the same protections as doctors or even lawyers.
That aside, I don't think it's universally the case that private suits to enforce professional standards turn on a negligence standard in all cases. For securities fraud, for example, there is a private right of action under 10b-5 (which requires recklessness) but not for 17(a) (for which negligence is sufficient). The SEC itself can enforce against negligent misrepresentation under 17(a), but in other cases, even SEC professional regulation hinges on something more than mere negligence. Under Rule 102(e) of the SEC's rules of practice, for example, they can bar accountants from practice for negligent conduct, but it has to be either "highly unreasonable," or repeated instances of merely "unreasonable" conduct.
This is different from the malpractice standards you are talking about, but malpractice applies between a professional and his client, rather than a member of the public affected indirectly by his departure from applicable professional standards. I don't think it's unreasonable for some form of recklessness (or at least heightened negligence) to be required before liability applies.
A "reckless" standard will just be ignored. Just like James Comey excused Hillary Clinton for her gross negligence on handling classified data. He used a different phrase that meant gross negligence and said she didn't have the intent of gross negligence. Gross negligence doesn't require intent, in fact it's the equivalent of manslaughter form of homicide. She just didn't care whether something was classified, all she cared about was Hilary Clinton, queen of the universe.
The same libel/slander standard needs to apply to everyone. No public figure exception. Keep the press honest.
Free speech is usually discussed as if it is an American invention. All of the Sullivan rules only apply in the US, not to bloggers or newspapers in Australia or Scotland. Yet they have freedom of speech, as well, albeit with different limits, and the same struggles to control malicious speech while resisting undue censorship.
In the U.S, we have invented a bunch of rules based upon mere phrases, from which coral reefs of precedent rise up having at their base highly ambiguous wording that some legislature, or judge, or advocate, or law clerk inserted into the mix long ago. Occasionally, we notice that the division of power and responsibility is not right and might be even be dysfunctional. We then set about arguing about the meaning of this phrase or that. The problem is that the reefs little depend upon the actual phrasing at their base, but upon shared understanding built up over time. Joe Rogan is being suppressed because people want him suppressed. The phrases themselves offer him little protection if the culture that underlies free speech changes, the culture that insisted upon reciprocity, he and his ilk will not be protected.
mezzrow said...
on free speech - is anyone here old enough to recall listening to adults talk about the times before the income tax was passed? Ever hear the phrase "back when you could keep what you made"?
I suspect we may see a time when we will be sitting around using the phrase "back when you could say what you think". Hope not.
*********
I suspect that time has already come. For an example read the article by Jennifer Sey at Bari Weiss' substack site from this morning.
https://bariweiss.substack.com/p/yesterday-i-was-levis-brand-president
Like I wrote the other day- double standards in the law are indefensible. What should be Sarah Palin's rights against slander and libel should be everyone's rights. We need to choose- either slander and libel are actionable torts for all or for none. I will be fine with either choice- the latter is probably functionally better, but both have a cost.
In Palin's case, all the evidence demonstrates this was actual malice, not that it will do her any good.
"I think the actual malice standard should apply to actual journalists who gather information by speaking to sources..."
You know, those single, anonymous sources never to be revealed but that just happen to confirm the already written point of the article.
Blogger Ann Althouse said...
"Hiding behind the "actual malice" standard in court, the NYT editorialists say we're not liable for that libel, because we didn't know (or have reason to know) that our news folks had already debunked the idea that Sarah Palin's ad had anything to do with the Giffords shooting."
“The "actual malice" standard keeps them on hook if they had a "reckless disregard" for the truth, so Palin doesn't have to prove that they knew they had it wrong. You don't have to go so far as to overrule Sullivan for the NYT to be held responsible in this case.”
My problem is that in most other areas, the NYT would, as an organization, probably be determined to have the required reckless disregard for the truth. Institutionally, they did have the knowledge, and it was ignored. Was it reckless? Given that the paper had published contrary (correct information) it should be assumed that they should have known, and any claim to the contrary shows recklessness. Courts regularly find corporations institutionally liable for far less knowledge. But instead, this resolves down to individual culpability - did the one employee have the knowledge of the previously published article when he made his decision to publish? Normally, the question is whether the corporation knew. It did. It was published in one of the most prominent papers around the world. Why shouldn’t they be institutionally responsible for their institutional actions?
Nick Sandmann settled too soon.
Big media can crumble forever after it decided to destroy an 18 year old kid.
It’s clear from the testimony the Times recklessly disregarded the truth in this case, but it’s not clear Palin suffered actual financial damages from those lies. If I were on the jury I would rule in favor of Palin and award her $1. We need to be free to say really bad things about American politicians, including lies — that is the business they have chosen. I suspect the principle would be crystal clear to everyone here if the politician’s name were Kamala Harris.
As a writer in this "vastly different media environment," I think New York Times v. Sullivan is more valuable than ever. Go ahead ahead and exercise your "imagination" over how First Amendment law could "better serve" your idea of "the public interest," ...
This sounds like a problem analogous to sovereign immunity. Here, court decisions, often reached for good reasons, have cumulatively created an environment where it is practically impossible for an injured party to gain any recompense for bad conduct, no matter how egregious. So the problem is returning some balance without running right back into the original problems (thank you, tim in vermont).
Similarly, there are solid arguments for sovereign immunity, but accumulated court decisions have made it almost impossible for wronged citizens to hold the sovereign liable, no matter how badly the sovereign acted.
IANAL, so be gentle with me.
So you people agree Prince Barrack Hussein Obama has the right to sue and collect damages and attorneys fees from everyone whom profligated birther lies, including Donald Trump.
Gawker.
Oh, I think the NYT had actual malice, but doubt that's how they'll rule.
Look how Michael Mann has abused the Canadian libel laws to get Mark Steyn removed from NRO, and is persecuting Steyn with a "Bleak House" style libel action, funded, on Mann's side, by deep pocketed donors, grinding at Steyn's personal finances, as a warning to any who might question the narrative on "global warming."
Herbert Wechsler was a giant, but now his fossilized remains look like that giant dinosaur in the Museum of Natural History. His classic article, Towards Neutral Principles of Constitutional Law, asserted that courts interpreting the constitution must issue principled decisions based upon reasons “that in their generality and their neutrality transcend any immediate result that is involved".
What a dodo. Read the current law reviews (if you can) and you'll see how anachronistic is the concept of neutral principles.
As for NYT v. Sullivan, the part of it that might be vulnerable is the Curtis v. Butts extension of the doctrine from public officials to public figures generally, and then to public figures who got there involuntarily, or for only a limited purpose. Those extensions are more controversial. As someone who has done many pre-publication legal reviews, I still think we are better off with the breathing room we currently have.
It amuses me when I get warned that I'll feel differently when the change is applied to conservatives. Except there is already a double standard in just about everything already, and many of things I am being warned about are essentially dead letter or only protect the Left. Stop asking me to conserve things that no longer exist. I prefer a worse standard that is enforced on both sides than a better one-sided one.
That said, the Palin suit involves an egregious situation where the NYT admitted they do not read their own newspaper and, for that matter, make statements on important news of the day without having a most basic understanding of what they are discussing. Employing ignoramuses to write editorials is not something I would want to defend in court. There has to be some line.
Howard said... So you people agree Prince Barrack Hussein Obama has the right to sue and collect damages and attorneys fees from everyone whom profligated birther lies, including Donald Trump.
That would be interesting, given that one Obama's own books explicitly states he is from Africa, he almost certainly applied to college pretending to be from Africa (though that information is still being hidden and he would almost certainly have to allow it to be released to proceed with the suit), and, furthermore, he played games with his birth certificate until he found a politically good time to release it. I very much believe Obama was born in Hawaii, but I also very much believe that Obama would claim to be born wherever it suited him at the moment. This is very consistent with how he has acted throughout his public life, changing his principles whenever it suited him. Good luck.
Where can I find the remains of Nick Sandmann?
Or maybe he was made whole.
The case got thrown out. It's okay for Pravda media to lie about Republicans and get away with it.
So judge will nonsuit Palin as soon as jury reaches a verdict, to preserve record for appeal. Facts do not support finding of actual malice. I assume she won't appeal if jury funds no liability, unless really bad instruction to contest.
Ampersand: in his most influential of law review articles HW questioned Brown v. Board of Education. Today he would be cancelled. Not that he wasn't an advocate for civil rights (reflected in his NYT v Sullivan advocacy). He once described to my conlaw class his visit to the Kennedy WH for purpose of president talking up civil rights legislation to would-be influencers. He said JFK gave a short, passionless presentation to the group. Then the VP gave a lengthy, mesmerizing followup.
And it looks like the point is moot, as the Judge announced that while he was going to let the jury deliberate, he would dismiss any ruling for Palin.
If you print something untrue about someone, especially something that isn't sourced or vetted, you should get your ass sued off.
I don't care if you're a public figure or not.
A lie is a lie.
Let the NYT carry liability insurance.
Sure they do.
But how many AA commenters do?
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