Warning shots to journalists from the Supreme Court

by | Jul 2, 2021 | Journalism | 1 comment

Two U.S. Supreme Court justices are now on record as supporting a reassessment of a landmark libel ruling, the high court’s 1964 decision in New York Times v. Sullivan. That’s the case that made it harder for public figures to prevail in a libel case, by forcing them to also prove that a news outlet had acted with malice in making a libelous claim.

Justice Clarence Thomas had called for that reassessment in a 2019 dissent. Now, in a ruling issued Friday, Justice Neil Gorsuch has joined Thomas in calling for another look at the so-called “actual malice” doctrine.

As The New York Times’ Adam Liptak explained in a story about the Friday ruling:

That doctrine required a public official suing for libel to prove that the offending statements were made with the knowledge they were false or with serious subjective doubt about their truth — a stricter standard than is applied to cases brought by ordinary people. The doctrine was expanded in later court rulings to cover public figures, not just public officials.

Both Thomas and Gorsuch argued in their dissents Friday that sweeping changes in the journalism landscape since 1964 have made a reassessment of the Sullivan case overdue. Here’s Liptak again:

Justice Gorsuch wrote that much had changed since 1964, suggesting that the actual malice doctrine might have made more sense when there were fewer and more reliable sources of news, dominated by outlets “employing legions of investigative reporters, editors and fact checkers.”

“Large numbers of newspapers and periodicals have failed,” he wrote. “Network news has lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that ‘monetize anything that garners clicks.’

“What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” he wrote, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

Friday’s ruling comes in the wake of a study released this spring by the North Carolina Law Review showing a marked uptick in negative references to the media by Supreme Court justices in their decisions. Liptak reported on the study for the Times when it was released.

Liptak also quoted one of the study’s authors, RonNell Andersen Jones, a law professor at the University of Utah, about one of the more surprising findings of the study: “There hasn’t been a single positive reference to the trustworthiness of the press from any justice on the court in more than a decade.”

The worry here, of course, is that a substantial rollback of libel law could have a chilling effect on news outlets pursuing watchdog reporting of public institutions and figures — as if the press needs one more reason to back away from this essential, but expensive and time-consuming reporting.

As the North Carolina Law Review concluded: “The forecast for press treatment at the U.S. Supreme Court may be dire.”

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