The press tends to take for granted that New York Times v. Sullivan is necessary for democracy. But is it? On the one hand, Sullivan still allows deep-pocketed litigants to target truthtellers who lack assets, tying them up in procedural hurdles that effectively chill speech. On the other hand, the Sullivan doctrine (encompassing the 1964 case and succeeding ones that expanded its purview) has made it largely permissible to disseminate falsehoods about an enormous range of people and entities, as long as the speaker, writer, or publisher didn’t know that the statement was false or didn’t harbor serious doubts about its accuracy, so as to display “reckless disregard” for the truth. What’s more, the “reckless disregard” test involves inquiry into a defendant’s state of mind: it’s seldom easy to establish that a falsehood wasn’t spread in the sincere belief that it was true. The case effectively permits the publication of negligently false statements about public figures, very broadly defined, in the name of protecting the debate and criticism needed to make a democracy work.
Recently, the doctrine’s critics on the Court have been making themselves heard. Three times in the past four years, as the Court refused to hear cases that could have prompted a reconsideration of New York Times v. Sullivan, Justice Clarence Thomas responded by flatly condemning the ruling. The first was in a case that, after #MeToo, has become a standard type of defamation suit: a woman accused Bill Cosby of rape, his lawyer called her dishonest, and she sued Cosby for defamation. Thomas disparaged Sullivan and its progeny as “policy-driven decisions masquerading as constitutional law,” because making a plaintiff prove that a defendant had a reckless disregard for the truth is inconsistent with the founding-era common law of libel, which lacked a “heightened liability standard” and often presumed the defendant’s malice. In another case, Thomas asserted that the common law traditionally treated lies about public figures as more troubling than lies about ordinary people, and so—inverting the logic of Sullivan—public figures may deserve more protection, not less. (He cited the “Pizzagate” conspiracy theory as an example of a hurtful falsehood.)
