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December 13, 2018
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“The New York Times v. Sullivan ‘actual malice’ rule applies when the plaintiff is a public official or a public figure, and the courts have defined the category of public figure pretty broadly,” Samantha Barbas, a law professor at the University at Buffalo who focuses on First Amendment law, told Raw Story.
Essentially, the bill would make it so fewer people are considered public figures, which means the Sullivan rules would apply to fewer cases, and the people who do qualify as public figures wouldn’t have to provide much evidence that the journalist was acting maliciously or irresponsibly. This change in the law wouldn’t only affect journalists, though.
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“The Sullivan actual malice rule affects all speakers, so ordinary citizens who want to comment on public officials or public affairs are protected by it if they make comments that are defamatory. We tend to think of Sullivan as a shield for the press, but really it affects everyone who wants to make commentary or criticism on public issues,” said Barbas, who recently wrote a book on the matter entitled “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan”.
So say you’re a Florida resident. You want to go to a town hall meeting and make some negative comments about your local representative. Feel free to do so — just know that without Sullivan in force, the lawmaker could potentially sue you for defamation, possibly successfully, just for insulting their character. The same could apply to posting negative comments about public figures on social media.
Prior to the Sullivan ruling in 1964, defamation lawsuits were often used against newspapers that were writing about the civil rights movement and racist activities in the Jim Crow South.
Post-Sullivan, those newspapers were much more protected from such lawsuits.
“In the late 1950s and early 1960s in the Jim Crow South there were a few judges and lawyers who came up with this very cynical theory of using defamation law to try to squelch northern newspapers from covering the civil rights struggle, voting rights abuses and things like that,” Lili Levi, a law professor at the University of Miami, told Raw Story. “They wanted to maintain the Jim Crow regime. That is the case that went up to the Supreme Court that we refer to as New York Times v. Sullivan.”
If this kind of legal shift did come to pass, such repressive tactics could be revived by people who want to stop the media from reporting on things they don’t like or want to keep hidden from the public eye.
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Barbas and Levi said they believe this bill was introduced to set up a case for the Supreme Court, because there would certainly be court cases regarding if it was constitutional. Justices Clarence Thomas and Neil Gorsuch have both expressed a desire to revisit the Sullivan rules.
U.S. Supreme Court (L-R) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas and Chief Justice John Roberts pose for their official portrait at the East Conference Room of the Supreme Court building on October 7, 2022, in Washington, D.C. Alex Wong/Getty Images
“You might actually be able to get five justices to agree to revisiting and, even if not totally reversing, at least significantly truncating New York Times v. Sullivan protections,” Levi said. “The press, which by the way includes anyone who writes on Substack or Twitter or wherever, is going to potentially be liable for a significant amount of damages in a libel suit. That is one of the dangers of legislation like this, if it’s passed.”
Beyond what’s happening in Florida and the possibility of a Supreme Court case, it’s clear there’s a growing desire among Republicans nationwide to “open up” libel laws in a bid to shut down press freedoms.
Trump, who is running for president again while facing massive legal peril, famously called for that when he was running for president in 2016 and has repeated it multiple times. DeSantis, too, appears to support this kind of change as he considers challenging Trump and launching his own 2024 presidential bid. Even a libertarian such as Sen. Mike Lee (R-UT) has called for changing the Sullivan rules to make it easier to sue journalists. Relatedly, DeSantis is also seemingly trying to prevent journalists from requesting information about where he travels.
“We’ve seen this widespread attack on New York Times v. Sullivan over the past five or six years … I don’t see why this wouldn’t spread to other conservative states while there’s this pervasive anti-media sentiment and all of this talk about needing to change Sullivan,” Barbas said. “This is really unprecedented, historically. I’ve looked at the criticism of Sullivan since 1964, and there’s always been an undercurrent of dissatisfaction and people saying Sullivan went too far, but I don’t think we’ve had a concerted attack like this in our history.”
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Levi said that if other states start to pass similar bills, that could make it more likely the Supreme Court would reconsider Sullivan. She said there would presumably be a lot of court cases going on around the country focusing on the constitutionality of these laws.
“I think if you have a bunch of statutes in a bunch of states that attempt to cut back, in one way or another, on protections for the press, some of those are going to end up being upheld by some courts, and they might become the occasion when [a Supreme Court review] could be granted,” Levi said.
Policies that are spearheaded by DeSantis in Florida, from the “Don’t Say Gay” bill to book bans, sometimes spread to other states, so it only seems logical that members of a party that’s constantly decrying the so-called “liberal media” would join this effort to change defamation laws in America. What happens in Florida doesn’t tend to stay in Florida.
“It’s quite possible this could spread to other states, which is also what makes it very dangerous,” Levi said.
One of the bill's co-sponsors, Florida state Rep. Mike Beltran (R), says he’s not sure if other states will adopt similar legislation.
However, he did make clear what he’d like to see happen.
“I think that it will likely be litigated and would be the vehicle to roll back much of the Supreme Court's dicta from NYT v. Sullivan, etc.,” Beltran told Raw Story. “The current case law finds no support in textualist or originalist principles and unfairly allows people to be defamed without redress."
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