Actual Malice on the Supreme Court

 by Sherry F. Colb

In its review of certiorari petitions, at least one Justice called for a response to the petition in Coral Ridge Ministries Media, Inc.,d/b/a D. James Kennedy Ministries v. Southern Poverty Law Center. When the Justices are considering granting a petition, they always begin the process by calling for a response from the respondent. For this reason, if you are on the respondent's side of a case in which your opponent files a petition for certiorari, you can save your client some money and yourself some time by waiting for the Supreme Court's reaction to the petition. Based on past history, the Court will not simply grant a petition for certiorari without having read the opponent's response to the petition.

What makes the call for a response (CFR) to the petition in Coral Ridge Ministries noteworthy is the fact that the petitioner is asking the Supreme Court to overturn a First Amendment free speech precedent that has been with us since 1964, when the Court handed down its decision in New York Times v. Sullivan. Times v. Sullivan held that when a newspaper or individual speaks or writes about a public official (later expanded to include public figures), the public official may not prevail in a libel suit against the newspaper or individual unless the official can prove actual malice. The Court defines actual malice as circumstances in which (a) the speaker or writer manifested reckless disregard for the truth in publishing the account in question or (b) the speaker or writer knew that her statements were false.

What do these standards mean? They mean that if you write an article about a public official (or a public figure, under later cases) and you make a mistake, you are not liable for defamation to the subject of your story unless you were extremely careless about checking the facts before publishing them or you set out to make false statements about the subject out of malice towards him. This high threshold for defamation liability means that reporters who write stories every day can do their fact-checking and then publish without worrying that making an innocent error--which is eventually inevitable--could lead to a crippling lawsuit. With the threat of a lawsuit with every error, it would become costly and maybe impossible to thoroughly report on what is going on in our government and in other zones of power.

Because Times v. Sullivan was such an important ruling for free speech, it is alarming to learn that at least one Justice thinks it is time to reconsider it. Indeed, we know that both Justices Thomas and Gorsuch are skeptical about the legitimacy of the decision, as they indicated in dissenting from a denial of cert. in Berisha v. Lawson. If the two are able to persuade three colleagues of the wisdom of their position--or if Justices Alito, Kavanaugh, and Barrett simply want to join their teammates on a contentious matter, then another milestone in the development of our nation as a "free country" will fall. Perhaps not coincidentally, writing about the Justices, their venality, their prior history of sexual harassment or sexual assault, and their astonishing loyalty to the partisan commitments of the Republican party (including "vaccines bad; masks bad") will become harder if the Justices overturn Times v. Sullivan, leading state and federal courts to hold defendants accountable for the unavoidable errors that reporters sometimes make.

One might feel confusion at this turn of events. After all, don't the Republicans love the First Amendment? Don't they consistently protect free speech, even when the speech consists of unlimited campaign contributions by wealthy donors?

Well, sort of. They protect the free speech that they deem worthy of protection or that seems harmless enough not to matter (like a cheerleader swearing about her school). But for the most part, the Court protects speech only when the government is deliberately targeting that speech for its content or viewpoint. Defamation liability arguably does not turn on the content or viewpoint of the communication; its target is a false publication that harms the subject of the story. Alhough the Court held in United States v. Alvarez (the stolen valor case) that false statements are protected under the First Amendment, it suggested there that some contexts would render false statements actionable and that it was protected in this case because it harmed no one. And to be blunt, even if the Court has been friendly to free speech in the past, it has also been protective of abortion rights in the past and protective of the administrative state and the ability of federal agencies to protect public health in the past and, well, you get the idea.

If the Court were to revisit and overturn Times v. Sullivan, then we might suddenly find ourselves in a news vacuum. It would become risky for reporters to tell us what is going on, and articles and editorials critical of particular people could be especially risky for writers. Instead of reckless disregard for the truth, a writer would have to have reckless disregard for her own financial future when writing in negative terms about, say, Donald J. Trump, the autocrat who apparently hopes to reascend to the throne in the 2024 "election." Trump, like people with narcissistic personality disorder more generally, is quite litigious and has threatened defamation suits against women for letting the world know about his history of sexual assault. Without the reckless disregard standard, a reporter might be gun shy about printing a story based on a victim's account, even if the reporter is confident that it is true. If the standard is strict liability or ordinary negligence, then even a forgivable oversight could cost the reporter untold sums of money.

It seems we are on a journey with this Supreme Court. It has for a while been clear to many of us that the Justices prioritized (their own) religious observances over all other pro-social mandates that a state might wish to enforce (including bans on discrimination). Predictably, in the defamation suit that the petitioner asks the Court to take, the alleged libel is the Southern Poverty Law Center's characterizing an apparently homophobic Christian group as a hate group. It was obvious that in many cases, the Court's religious parochialism would lead the Justices to reject the most basic human rights for half the population (abortion). But what fewer people realized was that this Court might have plans for more of a revolution. A majority is now like the proverbial kid in a candy store who has not had an ounce of sugar in years. Religion played little to no role in the vaccine/masking & testing mandates that the Occupational Health and Safety Administration (OSHA) tried to impose on workplaces pursuant to the clear authorizing text of the statute. And yet the Republicans would rather kill thousands of people than allow a "Democrat" mandate to go into effect. It's just a good thing that none of the workers who will die of COVID are embryos or fetuses or there might be hell to pay. 

If the Court overturns Times v. Sullivan, it will confirm for the public that the Justices are simple hacks ready to do the bidding of those who populate Fox News and OAN. Chief Justice Roberts will have been proven wrong in suggesting that there are no Obama judges and Trump judges, only judges. I would put it this way: there are Trump judges and then there are judges, and the latter are in shorter and shorter supply.