Libel and the First Amendment (Update)

Author:Elena Kagan

Page 1608

The structure of the Supreme Court's libel DOCTRINE has changed very little since the mid-1980s?remarkably so given the breadth and depth of dissatisfaction that this doctrine has engendered. While NEW YORK TIMES V. SULLIVAN (1964) deservedly remains an icon of modern FIRST AMENDMENT law, Sullivan 's progeny?an extensive and highly complex body of cases constitutionalizing almost every aspect of the law of defamation?has come under attack for failing to protect the legitimate interests of either defamed individuals or the press and other speakers. Yet the Court's libel law doctrine by now has acquired, seemingly despite itself, the virtue of stability?an achievement itself likely to prevent any ambitious reform proposals from making headway.

Sullivan derives its importance from two essentially independent features. First, the decision stands as the Court's strongest statement of general First Amendment principle?that the "central meaning" of the First Amendment, revealed in the controversy over the ALIEN AND SEDITION ACTS of 1798, is to protect against all infringements the right of a sovereign people to criticize government policy and public officials. Second, the decision began the process by which the Court brought the federal Constitution to bear on the state COMMON LAW of defamation. In the course of this doctrinal development, the Court provided some level of constitutional protection to libelous speech extending far beyond attacks on official conduct.

The Court put in place the main building blocks of its libel law doctrine in the two decades following Sullivan. First, in Curtis Publishing Company v. Butts (1967), the Court held that the "actual malice" standard adopted in Sullivan for libel cases brought by public officials also applied in cases brought by PUBLIC FIGURES. The latter, just like the former, would have to show that the speaker had acted with knowledge of a statement's falsity or reckless disregard as to its truth. Although the Court tried on several occasions to put some limits on the "public figure" category, lower courts have interpreted it expansively, to apply both to celebrities of all kinds and to any individual involved, voluntarily or not, in any sort of public controversy. Next, in GERTZ V. ROBERT WELCH, INC. (1974), the Court held that private figures must prove negligence (itself a heightened standard compared to the common law rule of strict liability) to recover compensatory damages and actual malice to obtain presumed or PUNITIVE DAMAGES. Because of the difficulty of proving actual injury to...

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