Actual Malice

Interesting article by Glenn Reynolds, law professor at the University of Tennessee, and proprietor of Instapundit.  In the guise of reviewing a new book, which he quite likes, by Samantha Barbas; Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, Reynolds suggests a new approach to libel law.

The 1964 Supreme Court case limited the ability of public officials to sue for defamation.  The case was triggered by an advertisement in the Times designed to raise funds for the efforts of Martin Luther King Jr and other civil rights advocates campaigning in the South.  Unfortunately, the ad contained a number of factual errors, creating potential liability for the Times and an opportunity for segregationist officials to strike back against a thorn in their side.  Two Alabama officials quickly won jury verdicts totaling $1 million.  Reynolds notes the stakes for the Times:

The $500,000 judgments would be chump change to the NYT today, even adjusted for inflation (the online Inflation Calculator shows $500,000 in 1960 as amounting to $5,124,375 today).  But the Times was poorer then, and in the middle of a financial crisis and an expensive confrontation with the printer’s union.  There was reason for worry that if these lawsuits succeeded, the proliferation of copycat suits would either bring the Times down financially or completely neuter its coverage.  And other organs would not be immune.

Sullivan's attorney stated that the only way for his client to lose the case was if the Supreme Court changed the law.  It did:

Deciding that the libel law of the past 150+ years offered too much power over national media to local officials, the Court established a new rule:  Where a public official claimed libel, he/she would have to show that the publisher acted with “actual malice,” meaning knowledge of falsity, or a “reckless disregard”as to whether the report was true or not.  The “actual malice” standard was an entirely new invention of the Court, and wasn’t even argued by any of the parties.  Brennan chose that standard because he knew the Times would lose on a negligence standard, since it had in fact been negligent. 

But, over time, the Court expanded on its original ruling:

But when government officials come together to use government institutions against private entities, it looks less like a duel and more like war.  So it’s plausible that in this special circumstance the First Amendment might reach farther than it has historically reached in libel cases.

This provides a useful and compelling defense of the Sullivan decision, and a plausible reading of it as well.  The only problem is that it’s not what actually happened.

Sullivan’s legacy quickly became one of generalized protection for the institutional press against, basically, anyone who might call it to account for false and defamatory content.  In very short order, the “public official” standard, which is manageably limited to government officials, became the elastic “public figure” standard, which means whatever judges want it to mean, as illustrated in this clip from the movie Absence of Malice:

In the St. Amant case, the Court interpreted the “reckless disregard” part of actual malice to only involve publications choosing to publish anyway when they entertained serious doubts about the accuracy of the material – there was no duty to investigate even outlandish charges so long as there was no subjective doubt.  And proving the subjective doubt became much more difficult as the Iqbal and Twombly cases held that charges of malice must be “plausibly” pleaded before any discovery – which would yield information demonstrating the existence of such doubts -- could even commence.

The result, according to Reynolds, is that the current standard:

. . . amounts to a subsidy, allowing press outlets to externalize the costs of poor or slanted reporting by dumping them on those defamed, and on news consumers, rather than paying those costs itself in the form of libel judgments and insurance premiums.   It is perhaps no coincidence that trust in the press has declined steadily since right about the time the decision was handed down.  And it is probably no coincidence that American politics has become more acrimonious and divided over the same period.

This analysis holds true anytime you tilt a playing field in favor of some person or institution.  It encourages bad decision making because the risk of consequences are so low.  I've seen this personally at play with federal administrative agencies, which between Federal court deference doctrines, and the overly expansive authority granted legislatively, know they can be sloppy and get away with it because the chances of successful challenges are low and the time and cost involved in such challenges discourages contests in the first place.

His prediction, which I hope proves to be correct:

My own prediction is that the Court will not formally overrule Sullivan but that it might return to the “Public Official” rather than the “Public Figure” standard, and that it will probably overrule St. Amant, and, even more likely, Iqbal/Twombly.