A Free and Frolicking Press

For John, BLUF:  The Press has played an active role in our politics since before the Revolution.&This article suggests that freedom could be certailed.  Nothing to see here; just move along.

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Keeping Speech Robust and Free

Here is the sub-headline:

The case of New York Times v. Sullivan set a vital standard in libel law. Could the clash between Fox News and Dominion Voting Systems dismantle it—and at what cost?

From The New York Review of Books, by Jeffrey Toobin, 20 July 2023.

Here is the lede plus two:

The libel lawsuit filed in March 2021 by Dominion Voting Systems against Fox News, over the network’s coverage of claims that the company had rigged the 2020 election, was settled this spring, but the case may soon become an artifact of a vanished era. In pretrial skirmishing, the two sides agreed on this much: the law of libel is governed by the Supreme Court’s 1964 decision in New York Times v. Sullivan. In the last legal arguments before the jury was to be seated, Rodney A. Smolla, one of the lawyers for Dominion, called Sullivan “the landmark decision that is the genesis for all of our modern First Amendment principles involving defamation law.” Erin E. Murphy, a lawyer for Fox, likewise said that the principle governing the case “starts in Sullivan.” But the emboldened conservative majority on the Supreme Court, having dispatched Roe v. Wade to the dustbin of overruled precedents, may now target Sullivan for the same treatment. Such a change would have fundamental consequences for both those who speak and those who are spoken about.

It’s a fitting time, then, to take a fresh look at Sullivan—how it came about and what it means today. In Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, Samantha Barbas, a professor at the University of Buffalo School of Law, tells the improbable story of the advertisement that gave rise to the case and the decision that Justice William J. Brennan ultimately wrote. It’s a tale that has been told before—notably in books by Anthony Lewis and Aimee Edmondson—but Barbas has a distinctive and relevant argument.

Like the earlier authors, Barbas makes the reasonable claim that Sullivan represented a straightforward battle between good and evil. It was, she writes, “one of a string of libel lawsuits brought by Southern segregationist officials against Northern media outlets…to prevent them from reporting on the civil rights movement.” By ruling for the Times, the Supreme Court “freed the press to cover the civil rights movement” and, not incidentally, likely saved the newspaper from being bankrupted by the damages it would have been ordered to pay in this and similar libel cases. But Barbas’s endorsement of the Sullivan decision is more nuanced than those of Lewis and Edmondson, and more reflective of the current moment. She appreciates the need for libel lawsuits at a time when “damaging falsehoods can spread online with a click, and reputations [can be] destroyed instantly.” But she recognizes that the protections of Sullivan are needed as much, or more, by individuals as by media companies. The story of Sullivan, and of the precedent’s possible demise, reveals as much about our own times as it does the 1960s.

This article was good for bringing me up to speed on Sullivan, which I learned was about an advertisement in The New York Times, and about the fight to end Jim Crow in the South.

I see the Author's point that the US Supreme Court could reconsider Sullivan  The Court could divide over the issue, and perhaps along the lines described, with Justices Thomas and Gorsuch voting to overturn and make libel suits against media outlets easier.  The author thought they might be joined by Justices Samuel Alito and Amy Coney Barrett, as well as Chief Justice John Roberts.

However, I think a reversal of Sullivan would be a disaster.  I worry that it could result in us knowing less about our politics and our world.  The Author is totally dismissive of the allegations against Dominion over election fraud.  I, on the other hand, thought that was an issue worthy of some investigation, along with the exclusion of poll watchers in Philadelphia and Atlanta (as seen on TV).

I hope we don't see a reversal of Sullivan.

Regards  —  Cliff