Gorsuch’s viewpoint on media law surfaced last week as he and Justice Clarence Thomas dissented from a Supreme Court decision not to review the U.S. Court of Appeals for the 11th’s Circuit’s decision in Shkelzen Berisha v. Guy Lawson et al. In that case, the son of the former prime minister of Albania sued over a 2015 book published by Simon & Schuster that “accused him of being involved in an elaborate arms-dealing scandal in the early 2000s.”
Like many such cases, this one hinged on whether the plaintiff was, for the purposes of libel law, a “public figure.” Per Sullivan and its descendants, public figures must establish something called “actual malice” to prevail in defamation actions. That is, they must prove that the defendant acted with knowledge that their report was false or with reckless disregard as to its truth or falsity. In Berisha’s case, a federal district court ruled that he was a “limited public figure” and couldn’t meet the evidentiary requirements associated with that status — a decision that the 11th Circuit affirmed.
In 2019, Thomas penned an opinion calling on the court to “reconsider” Sullivan, which he called “policy-driven decisions masquerading as constitutional law.” Thomas also dissented from the court’s denial of certiorari in Berisha. “Our reconsideration is all the more needed because of the doctrine’s real-world effects. Public figure or private, lies impose real harm,” wrote Thomas, who cited examples such as was Pizzagate, the conspiracy theory holding that top Democrats, including Hillary Clinton, were running a child sex abuse ring out of a D.C., restaurant.
But while Thomas’s dissent wasn’t unexpected, Gorsuch’s dissent means the high court’s constituency for revisiting the precedent is expanding. “The deck seems stacked against those with traditional (and expensive) journalistic standards,” he wrote, “and in favor of those who can disseminate the most sensational information as efficiently as possible without any particular concern for truth.”
In fact, any move to weaken Sullivan would stack the deck further against traditional outlets, period. They, after all, have libel insurance policies, so they’re often enticing targets for lawsuits.
And it’s hard to see how a reassessment of Sullivan would combat the brand of Internet disinformation mentioned by Thomas and Gorsuch. The viral lies that thrive on message boards and percolate up to unhinged quasi-news sites often spread at the fingertips of anonymous malefactors. “I see very little connection between the problem of online disinformation and the Sullivan standard,” notes First Amendment attorney Jeffrey Pyle of the law firm Prince Lobel. “Online disinformation on a vast scale is usually carried out by mobs of individuals who are unlikely to have either the assets to pay damages or libel insurance.”
Much of that disinformation, furthermore, is so scurrilous that it enjoys no protection even under Sullivan. “Individual libel suits are an incredibly ineffective, time consuming and expensive mechanism for policing the massive problems of disinformation on the Internet,” says Clay Calvert, a professor of law and mass communications at the University of Florida.
In calling for a fresh set of eyes on Sullivan, Gorsuch marveled at the changes that have transpired in media since the 1960s. Via social media, folks can switch from private types to public figures in a flash, and “everyone carries a soapbox in their hands,” writes Gorsuch, who also points to the more orderly nature of news dissemination way back when.
To which we say, so what? For jurists so impressed with history, Gorsuch and Thomas might do well to examine one key dimension of the Sullivan file. The landmark case concerned the efforts of Montgomery, Ala., city commissioner L.B. Sullivan to seek damages for inaccuracies in an advertisement — not a news article — that ran in the New York Times seeking contributions for the defense of the Rev. Martin Luther King Jr. Sullivan wasn’t named in the ad, but he claimed it was plainly referring to his actions.
The jury in the case was all White, the judge a believer in “white man’s justice.” The award in the case was for $500,000, the largest libel judgment in the state’s history. As Anthony Lewis pointed out in his book “Make No Law,” by 1964, various Alabama officials had filed 11 libel suits against the Times seeking $5.6 million in damages. It turned out that the supporters of a racially oppressive regime didn’t like having a northern paper mucking around in their business. The campaign was effective, too, as the Times withdrew its reporters from Alabama for a year over legal concerns.
So the pre-Sullivan legal landscape posed a threat to the paper’s reporting and perhaps to its very existence.
The Sullivan review crew, accordingly, might consider whether political actors in contemporary America would seize on the abandonment of Sullivan to replicate those media-suppression activities of Alabama officials during the civil rights era. The Trump era suggests the odds are 100 percent.
“If anything, we now know it would be worse,” says Ted Boutrous, a First Amendment attorney with the law firm Gibson Dunn, “it would be times a thousand — because we’ve seen that campaigns by public officials to use defamation lawsuits and the threats of lawsuits to try to punish and deter truthful news reporting has only increased in modern times.” If Thomas and Gorsuch won’t take Boutrous’s word for it, we’d direct them to cases filed by the Trump campaign and Rep. Devin Nunes (R-Calif.).