Justice Scalia: reflections on New York Times v. Sullivan

Tuesday, October 11, 2011

Forty-seven years ago, the free press became much more free.

In New York Times Co. v. Sullivan, the U.S. Supreme Court ruled that journalists may not be sued successfully by public officials for libel unless their news coverage was false, damaged a reputation and was published with “actual malice.” That meant establishing that the defamation was published “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Court concluded that such protection was necessary to preserve open debate and discussion about government policy and conduct. Without that protection, the First Amendment guarantee of a free press was largely subject to widely disparate state laws, none of which provided a similar shield against lawsuits.

The 1964 case set the stage for the aggressive investigative reporting to come, including landmark reporting in the Watergate era. It is certainly one of the most important legal decisions in the history of American journalism — and arguably one of the most settled.

That’s why it was interesting to hear Associate Supreme Court Justice Antonin Scalia bring up the case in a conversation at the Aspen Institute 2011 Washington Ideas Forum at the Newseum last week.

In elaborating on his point that courts should not render decisions that in effect legislate, he said that New York Times Co. v. Sullivan means “you can libel public figures without liability so long as you are relying on some statement from a reliable source, whether it’s true or not.

“Now the old libel law used to be (that) you’re responsible, you say something false that harms somebody’s reputation, we don’t care if it was told to you by nine bishops, you are liable,” Scalia continued. “New York Times v. Sullivan just cast that aside because the Court thought in modern society, it’d be a good idea if the press could say a lot of stuff about public figures without having to worry. And that may be correct, that may be right, but if it was right it should have been adopted by the people. It should have been debated in the New York Legislature and the New York Legislature could have said, ‘Yes, we’re going to change our libel law.’ But the living constitutionalists on the Supreme Court, the Warren Court, simply decided, ‘Yes, it used to be that … George Washington could sue somebody that libeled him, but we don’t think that’s a good idea any more.’”

Scalia was using the case as an illustration, and there’s no immediate likelihood that Times v. Sullivan will be overturned. But the justice’s comments serve as a reminder that the protections afforded by that decision are not engraved on a monument — and America’s news media can’t afford to take them for granted.

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