For more than half a century, the Times precedent has protected press freedom — and the robust public debate that it enables — by making it extremely hard for public officials and public figures to win libel suits against the media. The Times decision permits even untrue and defamatory statements as long as they were published unintentionally or at least without “reckless disregard” for the facts.
It would take the votes of four justices to revisit that and, as of July 2, when Gorsuch’s opinion appeared, there are two. The first was Justice Clarence Thomas, who advocated a Times reconsideration in a 2019 solo opinion (technically a concurrence, not a dissent) and did so again in a companion dissent to Gorsuch’s, asserting, per his “originalist” judicial philosophy, that Times was a Warren Court invention with no basis in the Constitution’s text or the common law.
This was an improvement over the hyperbolic dissenting opinion last March from Laurence Silberman, a conservative senior judge of the U.S. Court of Appeals for the D.C. Circuit, in which Silberman rebuked his colleagues for dismissing a libel suit and blamed the Times precedent for fostering Democratic “one-party control of the press and media”— even though Rush Limbaugh enjoyed its protections, too.
But Gorsuch’s opinion, smartest of the three, adopted a more-in-sorrow-than-in-anger tone. It focused not on the alleged bias of all-powerful networks and newspapers but on the hapless inability of these financially challenged legacy news organizations to uphold journalistic standards as they compete for clicks with upstart social-media rivals.
“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 has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable,” Gorsuch writes.
Like other Times critics, Gorsuch acknowledges the 1964 case represented the court’s attempt to meet a real threat: Alabama’s corrupt deployment of expensive libel lawsuits to silence the New York Times and other northern papers covering the state’s brutal crackdown on the civil rights movement.
Yet even those of us who agree with the result in Times, who felt outrage at President Donald Trump’s demagogic attacks on reporters as “enemies of the people,” and who believe in maximum freedom of expression, can acknowledge Gorsuch’s point that Times has had unintended consequences, some of which “leave even ordinary Americans without recourse for grievous defamation.”
How else to describe McKee v. Cosby, in which one of Bill Cosby’s sexual-assault accusers tried to sue him for allegedly smearing her through leaks to the press — only to have her complaint dismissed on the grounds, derived from precedents that began with Times, that her own accusations against Cosby had made her a "limited purpose public figure”?
Such distinctions are rapidly losing intelligibility in a world where, as Gorsuch points out, anyone can become Instagram-famous “overnight."
These conservative jurists’ views are hardly surprising, given the right’s hostility toward the “mainstream media.” Interestingly, though, Gorsuch’s opinion draws heavily on a new law review article by professor David A. Logan of the Roger Williams University School of Law, which bluntly faulted Times for “frustrating a basic requirement of a healthy democracy: the development of a set of broadly agreed-upon facts.”
Gorsuch also alludes to Byron White’s second thoughts about Times and to a 1993 article by then-law professor Elena Kagan, in which she noted that Times had perhaps inappropriately extended protection to stories about “celebrity gossip" and ”the private and sexual lives of political figures." The liberal Kagan, now Gorsuch’s court colleague, never went so far as to call for overturning the precedent, but Gorsuch’s point — misgivings about Times are not exclusive to the political and legal right — is well taken.
If and when the justices do reassess Times, the press may have fewer friends in court, relative to 1964. Out of court, too: Just 40 percent of the public expresses trust in the news media, according to the Gallup poll, with Republicans most antagonistic.
A detailed survey by the Media Insight Project, released in April, traces disenchantment not to partisans’ belief that media are biased against them but to more general “skepticism about the underlying purpose and mission journalists are trying to fulfill in the first place.”
Journalists surveyed by the project believed that "a good way to make society better is to spotlight its problems.” And in 1964, the Supreme Court elevated that journalistic article of faith to constitutional principle. Today, according to the Media Insight Project, only 29 percent of the American people agree with it.