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Speaker 1: This is The Takeaway from WNYC, NPRX in collaboration with WGBH radio in Boston.

Melissa: In the early 1960s, at the height of the civil rights movement, government officials in Alabama were prosecuting Martin Luther King Jr. on perjury charges. The New York Times published an ad asking for donations to defend Dr. King. The ad read in part, "As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non violent demonstrations in positive affirmation of the right to live and human dignity as guaranteed by the US Constitution and the Bill of Rights."

It went on to say, "In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror." Well, Montgomery, Alabama public safety Commissioner, L.B. Sullivan did not take kindly to these words, or to the minor factual inaccuracies that were also in the ad. He sued the New York Times and the African American ministers who placed the ad, suing them for libel. A state court in Alabama awarded Sullivan $500,000, but The Times appealed the decision all the way to the Supreme Court, where the ruling was overturned.

Justice Brennan wrote for the unanimous court, arguing that in order for a media outlet to be held liable by a public official, their reporting must be motivated by "actual malice". The decision is a key precedent protecting freedom of the press, but members of the current Supreme Court are reconsidering how it's being implemented. Just last month, Justice Neil Gorsuch wrote in a dissenting opinion, saying that it's time for the Supreme Court to take another look at the case despite saying he supported Sullivan when questioned about it by Senator Amy Klobuchar during his confirmation hearing in 2017.

Senator Amy Klobuchar: Do you believe under New York Times v. Sullivan, that the first amendment would permit public officials to sue the media under any standard less demanding than actual malice, and can you explain to the people here today and those watching on TV what that standard means to you?

Justice Neil Gorsuch: New York Times versus Sullivan was, as you say, a landmark decision and it changed pretty dramatically the law of defamation and libel in this country, rather than the common law of defamation and libel applicable normally for a long time. The Supreme Court said the first amendment has special meaning and protection, when we're talking about the media, the press in covering public officials' public actions, and indicated that a higher standard of proof was required in any defamation or libel case. Proof of actual malice is required [unintelligible 00:02:54] That's been the law of the land for, gosh, 50, 60 years.

Melissa: Has Gorsuch had a change of heart and does it pose a real threat to the landmark case and what would overturning Sullivan mean for press freedom in this country? Here to discuss this, Adam Liptak, who covers the United States Supreme Court for the New York Times. Adam, welcome back to the show.

Adam Liptak: It's great to be here.

Melissa: Okay, so can you talk about actual malice? Why is this a particular standard?

Adam Liptak: Actual malice imposes a constitutional bar on libel cases, which until Sullivan, had been governed by state law, and it says that not only do you have to have said something false and defamatory in the sense of harmful to reputation, you have to have more or less done it on purpose. The actual malice rule says the person suing for libel has to prove that the publisher of the statement made it knowing it to be false or with reckless disregard and the Court has said reckless disregard means with serious subjective doubts about the truth of the statement.

That's a lot of words, but the short of it is, you have to prove that you did it on purpose. It can't just be a mistake and that's very hard to do for two reasons. First of all, journalists don't generally lie, they may make mistakes, but they don't set out to say false things, but even if they did, it's very, very hard to come up with evidence that that happened, because that evidence is going to be almost entirely within the brain of the journalist and it's very hard to prove whether someone said something false on purpose or not.

The actual malice rule sets up a really daunting hurdle for public officials and that's part of the theory of the First Amendment, that speech about politics needs special protection so that there can be robust discussions among citizens about how they are to be governed.

Melissa: Help us to understand how this decision has impacted press freedom in this country over the past 60 years.

Adam Liptak: Unlike much of the rest of the world, libel suits are really quite rare in the US, because they're so hard to win if you're subject to the actual malice rule. Meaning that they tend not to be filed at all. You hear people like former President Trump complaining that he can't sue and punish his critics because the libel law in the US protects discussion of politics.

Melissa: If Sullivan were to be reconsidered, overturned, what would that mean for the landscape of media right now?

Adam Liptak: It would make libel suits much more common, it would subject the press to the threat and the reality of libel judgments, it would take us back into the era before Sullivan, where The New York Times actually withdrew its reporters from Alabama for a year because those libel judgments were so large that they threatened the very existence of the company. It's hard to overstate how that could alter discussion of public affairs in the US, particularly in an era where the press is not nearly as economically powerful as it once was.

Melissa: Adam, help me a little bit though, because I feel like sometimes this may depend on where we're standing as we watch this. So this is a case decided, in part, around the protection of Martin Luther King Jr. and we're talking about the folks who are currently on the court who are talking about reversing it. It's also connected with the things that President Trump said during his time in office about wanting to open the case back up.

If we go out to California, and we look at the case of the former mayor of Stockton, Michael Tubbs, that's a case of someone who was running for reelection and there was a fake news site that was posted, that was-- It was a website. It looked like it was news, but it was mostly just one of his opponents putting out a lot of false information about him. It does seem that this same decision is protecting those individuals. Is there some possibility that there is a good that could be done for public information by rethinking Sullivan?

Adam Liptak: That's the point that justices Neil Gorsuch and Clarence Thomas had been making. If for sure the Sullivan case pushes the needle far in one direction in the protection of free speech at the expense of protection of reputation, and that's not the only place to put the needle, but that's where we've put it so far. What justices Gorsuch and Thomas say, is, as you were saying, Melissa, whatever was true in 1964, the information environment these days is full of lies and nonsense and disinformation. Giving that kind of information a shield from libel law may be bad for public discourse.

Justice Gorsuch said that Sullivan was decided in an era where you had investigative reporters and copy editors and fact checkers in the establishment media, which guaranteed a certain level of quality, but now we live in an era of social media trolls and bots, and this information and maybe that requires, he says, a different legal regime.

Melissa: What then is the counter argument on that? Because I've got to say, I can understand why that would feel compelling across the ideological spectrum, that okay, the media environment of 1964 is quite different than the media environment of 2021 and people do have a right to be protected from what feels like these self serving purposeful falsehoods about them, even if they are, in fact, public officials?

Adam Liptak: Two things, the actual malice standard is hard, but it's not impossible to overcome. If you can prove that someone lied about you on purpose, and that person has some money, and you can find them, you can win a libel judgment, but I just laid out a bunch of caveats. The larger argument in the other direction is that the First Amendment represents a choice, and that choice is that we'll have a robust public discussion in which a lot of speech will take place and we'll rely on citizens to use their critical faculties to make sense of what's true and what's not, and not the blunt instrument of libel suits.

Melissa: This is the foundational democracy as the market place of ideas. Sometimes people will buy the wrong items at the marketplace, right, but having more happening in that marketplace of ideas is the longer term good?

Adam Liptak: That's one theory of the first amendment. You can also argue the opposite, that this marketplace is broken and needs regulation and that maybe even defamation law is the right way to regulate it.

Melissa: I'm wondering, is there an actual case before the court right now? Why did this emerge in Gorsuch's writing?

Adam Liptak: A couple of cases recently in 2019 and then just last month reached the court. The court turned down the cases, but in the process, one or two justices wrote that they'd love to take a whack at this issue and invited further cases to come to the court. Libel cases arrive at the Supreme court with some regularity. It won't be hard for the court, if it wants to, to take up this case. At the moment, we know there are two votes to take it up. It takes four votes to add a case to the Supreme court's docket, and of course, five votes to reverse the precedent.

We're nothing like all the way there, but you would have thought that this is one of the handful of really famous precedents that would be quite secure, I would have said just a few years ago, and now I'm less confident in that. Of course, this is a Supreme court that is not shy about reconsidering precedents. This fall, it's going to take another look at Roe v. Wade.

Melissa: Is Brown v. Board one they might look at?

Adam Liptak: No, I think Brown v. Board is the most secure. Everyone on the court agrees that it's the court's greatest achievement. Boy, I hope that the day doesn't come when people talked about overruling Brown against board of education.

Melissa: Absolutely. One last question here. We know that Clarence Thomas and Neil Gorsuch have signaled publicly their willingness to reconsider Sullivan. What about the other justices on the court?

Adam Liptak: The only other justice who's expressed some qualms about Sullivan in her academic writing before she joined the court, and only about an aspect of Sullivan was Justice Elena Kagan, who didn't seem to have a problem with the part of Sullivan we've been talking about, but later cases extended Sullivan from government officials to so-called public figures, celebrities, people caught up in public controversies, and she has wondered in her academic writing, whether that step of taking it out of the realm of politics and into just discussions of public affairs generally is an appropriate use of the Sullivan decision.

Melissa: Protect the mayors, but maybe not the Kardashians. Got it. Adam Liptak covers the United States Supreme court for the New York Times. Adam, thanks so much for joining us today.

Adam Liptak: Really fun to be here.

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