Protecting Free Speech in a Post-Sullivan World.

• Author: Schafer, Matthew L.

TABLE OF CONTENTS I. INTRODUCTION 2 II. NEW YORK TIMES CO. V. SULLIVAN 4 III. THE PROGENY 12 IV. THE WEAPONIZATION OF LIBEL LAWSUITS AND THE DRUMBEAT OF THREATS TO SULLIVAN 27 V. PREEMPTION AND DEFAMATION 38 VI. THE FREEDOM OF SPEECH AND PRESS ACT 44 VII. CONCLUSION 48 VIII. APPENDIX: TEXT OF THE FREEDOM OF SPEECH AND PRESS ACT 49 I. INTRODUCTION

Thomas Cooper, who Thomas Jefferson classed as "the greatest man in America," once said that "[t]he doctrine of libel is, in all countries, a doctrine of power." (1) So it remains today. Today, the wealthy, famous, and otherwise powerful regularly resort to libel threats and libel lawsuits not to redress a cognizable injury to their reputation but instead to silence and punish their critics and make to-be critics think twice before speaking. Luckily, the U.S. Supreme Court has recognized in three decades of case law that the First Amendment displaces much of the common law of libel (and other speech-based torts), making it harder for tech billionaires, Hollywood elites, and political partisans to weaponize libel law.

Starting in 1964, at the height of the civil rights movement, the Supreme Court in New York Times Co. v. Sullivan said for the first time that libel lawsuits brought by public officials must be considered against the backdrop of our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," despite that such debate "may well include vehement, caustic, and sometimes unpleasantly sharp attacks." (2) Sullivan transformed the common law by placing the burden under the First and Fourteenth Amendments on public officials to prove falsity and a heightened fault standard called "actual malice." (3) That standard requires a public official plaintiff to plead and prove that the defendant published the allegedly defamatory statement knowing that it was false or with a high degree of awareness of its probable falsity. (4) The Court's recognition in Sullivan was hailed as an occasion for "dancing in the streets." (5) It was "a great case" when it was decided and is, today, a landmark precedent. (6)

Sullivan and the cases that came after it, however, hang in the balance now more than ever before. We have not seen libel plaintiffs flock to courts in such numbers since the 1980s, "a time of growing libel litigation, of enormous judgments and enormous costs." (7) And, even despite Sullivan, several plaintiffs still manage to succeed. Short of a jury verdict in their favor, libel plaintiffs can measure their success in years-long defense costs that can easily exceed $1-2 million depending on the case. For plaintiffs seeking retribution more than redress, putting a defendant through the time and trouble is well worth the squeeze.

While this might suggest that Sullivan should be shored up, or perhaps that the Supreme Court should recognize other protections under the First Amendment, some on the Court have called for overruling Sullivan. Clarence Thomas was first: "The constitutional libel rules adopted by this Court in [Sullivan] and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law." (8) He has twice renewed this call. (9) Nor is he alone. Neil Gorsuch, in 2021, joined him, suggesting that Sullivan might be the problem, not the solution. (10) And although she has not made her position known recently, as a law professor in the 1990s Elena Kagan pondered whether the Court had "extended the Sullivan principle too far." (11)

Sullivan may not be reversed next term or five terms on. But having seen the scramble to protect bodily autonomy in the wake of the Court overturning Roe v. Wade, the time to protect landmarks like Sullivan is now. (12) Here, we argue that Congress should take up and pass a preemption statute. This proposed statute would set baseline national standards, some previously adopted by the Court as a constitutional matter and others only ever considered by it, that must be satisfied to maintain a defamation action based on interstate speech. By doing so, Congress could insulate the press and the public from fallout that will follow in the wake of overruling Sullivan. This approach has the added benefit of not establishing a national law of libel nor a new procedural scheme such as an anti-SLAPP, both of which are more ambitious proposals that we think have low likelihood of gaining traction in Congress no matter how appropriate such approaches might be.

On our way to proposing this statutory scheme, we first review Sullivan itself and the sociopolitical environment in which the Court decided that case before we turn to some of the cases that followed it. This review is necessary to understand the import of the statutory language we aim to propose. We next examine recent calls to revisit Sullivan. To explain why such rethinking is dangerous, we provide an overview of the increasing weaponization of the law of libel by all sorts of plaintiffs, proving that there is a real, emergent problem that Congress can address by adopting our proposal. We then discuss statutory preemption of the state law of libel, using Section 230 of the Communications Decency Act as a model. Finally, we propose statutory language to protect freedom of speech and of the press and discuss how we arrived at this language.

2. NEW YORK TIMES CO. V. SULLIVAN

   It was about a month after the Greensboro Four refused to leave the "Whites Only" lunch counter. (13) On March 29, 1960, the Times ran an advertisement titled Heed Their Rising Voices. (14) The ad, paid for by Committee to Defend Martin Luther King and the Struggle for Freedom in the South, was intended to throw a spotlight on young civil rights protesters "engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights." (15) These demonstrations were met with "an unprecedented wave of terror" detailed in the ad "by those who would deny and negate that document." (16)

   That ad did not name a single police officer in Alabama, and the Times distributed just 394 daily copies of the newspaper in that state--a paltry amount relative to its circulation of 650,000 copies. (17) Nevertheless, L.B. Sullivan, a member of the Commissioners of the City of Montgomery and in that role supervisor of the police, sued the Times over the ad, arguing that its references to "police" could be read to refer to him specifically. (18) There was also a companion case, Abernathy v. Sullivan, that has receded from memory but proves that Sullivan was not merely a case about freedom of the press. (19) Rather, it implicated freedom of speech for the individual too, as Sullivan also sued four black ministers, Ralph David Abernathy, S.S. Seay Sr., Fred L. Shuttlesworth, and J.E. Lowery, whose names appeared on the advertisement without their permission. (20)

   The ad was not without its issues. While it reported that protesters sang My Country, 'Tis of Thee on the state capitol steps, in fact they sang the national anthem. (21) While it reported that the dining hall had been padlocked, in fact the university denied entry to certain students because they did not have dining tickets. (22) Moreover, while it reported that the police ringed the campus, in fact they deployed near the campus. (23) While nine students had been expelled, it was not because they led a demonstration at the Capitol, but because they demanded to be served at a lunch counter. (24) And while the ad stated that Martin Luther King, Jr. had been arrested seven times, in fact he had only been arrested four times. (25)

   At trial, Sullivan put on evidence that he had not been involved in the misconduct as alleged in the ad. (26) Instead, he argued that much of the conduct pre-dated his time as commissioner of the police. (27) He made no effort to prove actual damages and instead relied on witness testimony from a former employer that had they believed the ad, they would have been less likely to associate with him. (28) The judge instructed the jury that the statements were libelous per se and not privileged. (29) He also told the jury that because the statements were per se libelous, Sullivan did not have to put on evidence of actual damage. (30) Falsity and malice, he told the jury, were also presumed. (31) Finally, he told the jury that punitive damages need not have any relation to actual damages. (32) The jury then found for Sullivan, awarding him $500,000. (33) The Alabama Supreme Court affirmed. (34)

   On January 7, 1963, the Supreme Court granted certiorari, citing "the importance of the constitutional issues involved" as to both the Times and the individual defendants. (35) In a unanimous opinion, authored by Justice William Brennan, it reversed. (36)

   At first, the Court summarized the outlines of Alabama's libel law. A statement was libelous per se where "the words 'tend to injure a person... in his reputation' or to 'bring [him] into public contempt.'" (37) When it came to a public official, a finding that the statement "'injure[d] him in his public office, or impute[d] misconduct to him in his office, or want of official integrity, or want of fidelity to a public trust'" satisfied that standard. (38) Where the plaintiff was a public official, "his place in the governmental hierarchy" was "sufficient evidence" that "statements that reflect" on government reflect on those in charge of it. (39) Thereafter, the defendant was left with no defense unless he could show that the charge is "true in all [its] particulars." (40) Moreover, absent a showing of truth, "general damages are presumed, and may be awarded without proof of pecuniary injury." (41) To get punitive damages, however, the plaintiff "apparently" had to show malice. (42) Neither "good motives" nor "belief in truth" negated a finding of...