‘So to Speak’ podcast transcript: New York Times v. Sullivan and its future

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Okay, welcome back to So to Speak, the free speech podcast, where, every other week, we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, your host, Nico Perrino, and on today’s show, we’re talking about the seminal 1964 Supreme Court case, New York Times v. Sullivan.

This was an important First Amendment case that limited the ability of public officials to successfully sue their critics for defamation, and as the court ruled in that case, America has a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that in some cases, defamation law has been used to limit that debate. It’s important to note at the outset here that subsequent follow-on cases to Sullivan applied the same limits to public figures, like celebrities, and not just public officials, such as politicians.

Over the years, Sullivan has received plaudits as one of the greatest decisions ever issued by the Supreme Court. Yale Law Professor Owen Fiss wrote that the decision solidified the free speech traditions that have ensured the vibrancy of American democracy, and the late Chief Justice of the Supreme Court William Rehnquist said Sullivan made American public officials more accountable, the American media more watchful, and the American people better informed.

But – but – Sullivan is increasingly under attack from politicians, activists, and even sitting justices of the Supreme Court. They believe the decision went too far, enabling the news media and others to defame fellow citizens with little to no consequence. A bill introduced in Florida this week seeks to limit Sullivan’s protection for speech. Joining us today to discuss New York Times v. Sullivan and its future is a distinguished panel of experts, including Floyd Abrams, who is senior counsel at Cahill Gordon & Reindell, and he is described by some as America’s greatest First Amendment lawyer. Floyd, welcome onto the show.

Floyd Abrams: Thanks a lot. It’s good to be here.

Nico Perrino: We also have my colleague at FIRE, JT Morris. He’s a senior attorney. JT, good to see you.

JT Morris: Thanks, Nico. Excited to be here this morning.

Nico Perrino: And we have Matthew Schafer, who is an adjunct law professor at Fordham University School of Law. Matthew, welcome onto the show.

Matthew Schafer: Thanks for having me.

Nico Perrino: So, let’s start at the beginning here, get a little bit of background on New York Times v. Sullivan. JT, I wanna start with you. What are the historical facts that led to the New York Times v. Sullivan case?

JT Morris: Sure. So, the story of Sullivan starts in the midst of the Civil Rights Movement in Alabama during the early 1960s. A group of Martin Luther King’s supporters wanted to raise more national awareness and support for what was happening in the segregationist South, so they placed an editorial/advertisement in The New York Times called “Heed Their Rising Voices.” The advertisement praised Dr. King’s efforts, as well as the efforts of student protesters, at Alabama State College.

The advertisement also criticized the Montgomery, Alabama police for harassing Dr. King and repressing the student protestors, and while the advertisement criticized the powers that be generally, it didn’t name any police officer or public official specifically. Who had been named were many supporters of Dr. King and the Civil Rights Movement, including famous figures like Jackie Robinson and Eleanor Roosevelt, and a group of influential Black preachers, including Ralph Abernathy.

Now, the piece included a few inaccuracies. For example, it said that the local police had arrested Dr. King seven times, when it was actually four. The piece also claimed that the police had ringed the campus where the students were protesting, when the police never actually encircled the campus, although they did show up with submachine guns and tear gas canisters to take 30 student protestors into custody. The point is the essence of the article was true. Police were using harassment, violence, and intimidation to squash protests.

So, stepping back, you had a piece in a preeminent national publication, The New York Times, revealing the struggle of the Civil Rights Movement against violence and intimidation in the segregationist South and naming some pretty famous figures who were supporting the Civil Rights Movement. So, you might imagine that the advertisement upset the power structure in Alabama – it did.

Somewhat ironically, it was actually the local media in Montgomery that started the attack on the ad in The New York Times. A local editor-in-chief wrote a piece accusing the Times and the supporters of the Civil Rights Movement of lying, and soon, the public safety commissioner in charge of the Montgomery police, a man named L.B. Sullivan, learned of the ad, and even though the ad did not mention him, he sent a retraction demand to The New York Times and four of the preachers named on the ad.

The Times, understandably so, was puzzled as to how Sullivan could believe anything in the advertisement was about him because it didn’t name him, so it asked Sullivan to clarify. Sullivan didn’t clarify, and instead, he went to an Alabama state court and sued the Times and the four preachers for libel, based largely on those inaccuracies I talked about earlier. He actually claimed no harm from the ad. He asked only for presumed damages based on his theory that the ad implicated him because he was the public safety commissioner.

A jury of 12 white men agreed with Sullivan, awarded him a $500,000.00 judgment against the Times and the four preachers. That, in today’s figures, is over $5 million, and the Alabama Supreme Court affirmed. That amount would have ruined the preachers, certainly would have put a huge dent in the Times’ finances, and not only that, Sullivan’s case wasn’t the only libel suit brought against the Times and other press entities at the time. Southern officials had a strategy of trying to use very plaintiff-friendly libel laws, which, at the time, lacked any Constitutional limits, to stifle the press and punish speech about the Civil Rights Movement.

So, by the time 1964 came around, the Times was facing almost $300 million in potential libel damages in Southern courts, so the Times, along with the preachers, had one choice: Ask the Supreme Court to hear their case. The Supreme Court did. What resulted was a unanimous decision not only tossing out the Alabama jury’s verdict, but rendering – as you pointed out, Nico – one of the most important Supreme Court opinions on the First Amendment. I’m gonna stop there because I would love to hear Floyd and Matt talk about the details of the court’s decision.

Nico Perrino: I wanna ask, before we get to the details about the decision, more of the context surrounding the case. I had read somewhere, for example, that Times reporters were even discouraged from visiting Alabama for fear that they might be spurred with one of these defamation lawsuits. This was very much an asymmetric warfare tactic that was used at the time in the South, where you had juries, for example, that were very sympathetic to segregation that were hearing these defamation cases that were brought against news organizations. So, people were trying to speak out on the civil rights cause of the day – right, Floyd? – and news organizations were very wary of doing it.

Floyd Abrams: Yeah, you make a really good point. This was almost a systemic attack on the ability of the national press to write about what was going on in the South and what was going on especially with respect to racial issues – segregation and the like. And so, there had been massive judgments at the time against Time magazine, against CBS, the national entities of great power and significance, who, when they spoke out, really made a difference in terms of national public opinion.

So, from the point of view of the press, or the national press, I’d call it, they were at risk of not being able to cover the most important political/social event going on in the nation, which was the effort to transform the white South into one in which Black people had at least the beginning of some semblance of civil rights.

So, this case arose then in the context in which it was not just an issue – as it was certainly viewed then, not just an issue of whether The New York Times could say this or Time magazine could say that, but whether the American people would be receiving candid information of a sort which would frequently be critical of what was going on in the white South, and then, they were hauled in in front of all-white Southern juries, and an increasing amount of libel judgments were entered against them. So, that was the legal/political/social context in which the case arose.

Nico Perrino: So, Matthew, I wanna ask a little bit about what defamation law looked like prior to 1964. So, you would file one of these defamation claims or claim defamation, and what did the First Amendment say about defamation? What sort of protections did the news media have at the time against frivolous claims that were used to more or less just silence critical coverage?

Matthew Schafer: Sure. So, one of the great aspects, or a central aspect, of Sullivan is that it began the federalization of much of the common law of libel. Before Sullivan, before 1964, the common law of libel was largely up to state legislatures/state judges. We had, essentially, no First Amendment protections that defendants could raise when they were targeted for saying, at its most basic, bad things about people. So, it was essentially a Constitutional free zone.

There’s an early case in the 1930s-1940s, Chaplinsky, that includes an often-repeated quote that defamation is one of those areas of speech that has never been thought to be protected by the First Amendment. I would put one caveat on that. In the 1940s, the Supreme Court did consider a defamation judgment. This one – I believe it was out of New York, but maybe Floyd can correct me if I’m wrong – was called Sweeney v. Schenectady Publishing.

That case, the court heard – unfortunately, oral arguments weren’t transcribed at the time, but that case, the court heard, and we have newspaper accounts of what was argued, and there, about 25 years before Sullivan, you have, for the first time – in the 20th century, anyway – this issue brought to the Supreme Court about maybe the First Amendment does have something to say about libel judgments.

Unfortunately, one justice did not hear that case, so it was an eight-justice court. It split four to four, so there was no opinion that came out of that argument, but one of the critiques of Sullivan is, well, this was essentially an outgrowth of the Warren court and this was a product of the 1960s and the Civil Rights Era, but I always like to mention Sweeney because I think it makes clear that this was not just something that came out of the imagination of the Warren court, this was an idea that, both in the 1940s in front of the Supreme Court and, as I’ve argued before, long before that, there were arguments that indeed, the common law of libel should be limited by the First Amendment or the counterparts in the state constitutions.

Floyd Abrams: I would like to add to that, though, that – let’s say on a personal level. I graduated from law school in 1959. There was a libel course that was taught at Yale Law School when I was there, but it was taught the way admiralty, a case about ships at sea, was taught, as a separate body of law, a unique body of law, and anyone that was interested in libel law, it’d be fun to take the course, but it was not – to any real degree – integrated into the Constitutional law courses because, as Matthew points out, there was no case decided by the Supreme Court about libel which talked about the First Amendment at all.

And so, it took a new look – I agree with what was just said, but it took a new look in terms of a decided ruling, not four to four, but nine to nothing, for the Supreme Court to say, “Look, this is speech. We’re talking about speech here – speech about public matters – and it is necessary to integrate First Amendment law and libel law in some way together.”

Nico Perrino: So, I wanna get into the meat of the ruling, but first, we have listeners who come from all different backgrounds, some are lawyers, some are just interested in cultural free speech issues. JT, can you describe what defamation/libel/slander are, just for a lay audience, before we dive in?

JT Morris: Yeah. So, the American tradition of defamation law is meant to remedy harms to your reputation. If somebody says a defamatory falsehood that harms your reputation, you have a remedy for it. That’s about as simple as I can get. It doesn’t cover opinions, it doesn’t cover hyperbole, it doesn’t cover things that aren’t false statements of fact.

Nico Perrino: So, the cliché example is someone publishing or telling a group of people that you’re a sex offender when you’re demonstrably not, right?

JT Morris: In certain contexts. The important thing about defamation law is context is really important. That’s even more important in today’s digital age, where we have Twitter and Facebook and people posting stuff all the time. Elon Musk, I believe – he called somebody a pedophile, he was sued for defamation, and he escaped without liability because the context of him saying that was it was not a statement of fact, it was sort of rhetoric and hyperbole, so it couldn’t hold a defamation lawsuit.

So, context is really important. There are some categories that most states have called “defamation per se.” You accuse somebody falsely of a crime or something that impacts their standing in the business community. For some of the older categories, I think if you accuse somebody of having a loathsome disease, which is essentially a sexually transmitted disease, those are deemed defamatory as a matter of law – you don’t have to prove they harmed you – but even those categories today are a lot more malleable than they used to be. But, essentially, defamation – in the American tradition – is intended to remedy harms to your reputation.

Nico Perrino: And “defamation” is kind of an umbrella term for libel and slander, libel being written defamation and slander being spoken, and Matthew…?

Matthew Schafer: Yeah, just to piggyback on what JT was saying, I think that one of the ways to think about libel before Sullivan and after Sullivan is to draw an analogy to the oft-repeated phrase in criminal law “presumed innocent until proven guilty.” Defamation is a very strange tort historically. It essentially, in the civil context, presumed that the defendant was guilty of defaming the plaintiff. After Sullivan, that all changed, and I think you could argue that Sullivan restored a presumption of innocence in the context of defamation, so it really flipped the script.

Floyd Abrams: Just to add to that, our law came from England, where they continue to have just that same presumption, that speech which is harsh or defamatory – says bad things about people – is false. That’s the starting point. And then, from there, the newspaper – if it’s a newspaper – has to prove that it was true.

Nico Perrino: Actually, I’m glad you brought that up, Floyd, because one of the first podcasts I did, something like six years ago, was with this woman Deborah Lipstadt, who I believe is a professor at Emory, a historian of the Holocaust, and she accused David Irving of being a Holocaust denier.

David Irving, I believe, is a British historian who published and translated Goebbels’s diaries, for example, and has become sort of a conspiracy theorist Holocaust denier, and she called him out for that, and David Irving sued her in England for defamation, and because the presumption is that the statement is untrue and defamatory, Deborah Lipstadt, in order to win the case, essentially had to prove that the Holocaust was happening – had to make a historical argument that the Holocaust happened in order to win the case against David Irving.

So, in the United States, we’re a bit unique in that the presumption is that the statement is not defamatory until it’s proven, but let’s get into New York Times v. Sullivan now, and what that case did, and what the new standard was for defamation that it laid out. Matthew, do you wanna take the first crack at this?

Matthew Schafer: Sure. I think it’s presumptuous with Floyd on the call, but I’ll do it anyway.

Nico Perrino: Well, I’ll pitch it to Floyd after and ask about the impact.

Floyd Abrams: You have it all wrong, Matthew – everything you said!

Matthew Schafer: So, there’s an arcane rule to Sullivan, and then there’s a central lesson. Both are important, for different reasons. So, the arcane rule is what we call the actual malice rule, that if a public official – that is, someone who works for the government, usually higher-ranking officials, although those lines move depending on what jurisdiction you find yourself in – but, when a public official brings a defamation claim, the rule that Justice Brennan, writing for the court, adopted in Sullivan was that that public official must plead and ultimately prove that the defendant acted with actual malice – that is, knowledge of falsity or a high degree of awareness of probable falsity.

Essentially, the plaintiff has to prove that the defendant knowingly lied in making the defamatory statement, so that’s the arcane rule. Floyd can speak to why that’s so important. The second rule, the central tenet, the central lesson that we get from Sullivan, is that in the United States, we have a republican form of government, and the people – the power that lies first with the people, and those in government are the agents of the people, who are the principals, and under Sullivan, Justice Brennan goes through the history of the Sedition Act in the late 1790s and the runup to the election of 1800.

And from that sordid history, where the supporters of the Adams administration were tossing the Jeffersonians into jail, he came up with this idea that if freedom of speech means anything in the United States, it means that individuals ought to be able to criticize the government and the governors without fear of liability. The risk, if we do not adopt the arcane rule like actual malice, is that there would be a chilling effect, and that people – again, in whom power resides – would be unable to shame officials out of office or to shame them into better behavior.

So, in the late 1790s and the early 1800s, you actually see commentators – in some courts, at least – talking about a duty to defame because through criticism of public officials, that is how self-government works, and there is even some correspondence exchange earlier – in the 1780s/1790s – essentially positing the question “If we had not been able to defame the British, would there have been a revolution?” So, you have that idea drawn through the centuries, and that is what Justice Brennan ensconced in New York Times v. Sullivan.

Nico Perrino: So, you would need to have a really high standard to discourage the defamation claims that were happening in the South. It’s very likely that they’re gonna lose, because you can file frivolous defamation suits that you have no chance of winning, but that would have the net effect – because litigation is costly and time-consuming – of just shutting people up, shutting up coverage. Floyd, did he get it right?

Floyd Abrams: You got an A! No, completely right, but remember, too, when we talk about New York Times v. Sullivan, that those statements perfectly summarized – arose in the context of the racial development oppression, to some extent, and in certain obvious ways in the South, so, on that issue, an opposing voice could not be heard without being put at risk of being put before an all-white Southern jury.

In picking the jury, they called Black people by their first name in New York Times v. Sullivan. It’s just important – it’s developed a lot, and that’s what we’re here to talk about, but to understand the degree to which what was needed was some sort of juridical statement as a matter of First Amendment law which would protect the right to speak out on important issues and criticize the power structure.

Nico Perrino: So, it’s been 60 years since the Sullivan decision, and JT, what do you feel is its most important impact? Was this a sea change in the world of First Amendment law? Did news organizations – immediately after the ruling – breathe a sigh of relief, weight lifted off their shoulders, and now you’re all free to do critical reporting on public officials?

JT Morris: Yeah, I think that’s part of it, and I’ll let Matthew and Floyd address that. They have a lot more experience on the media side of things than I do, but I’ll give you two answers. I think, one, the central concept Matthew talked about – this profound commitment to uninhibited, robust, and wide-open national debate – that has permeated so much of the Supreme Court’s jurisprudence in other areas – Snyder v. Phelps, Hustler v. Falwell – giving breathing space for things that people might consider hate speech or offensive speech – that’s protected.

McIntyre v. Ohio, one of the most important decisions protecting anonymous speech, pulled a lot of principles from New York Times v. Sullivan. Miami Herald v. Tornillo, the important case protecting the editorial discretion of newspapers, and that’s now an issue in the social media moderation cases, pulled a lot of principles from Sullivan, and all from that central concept of that robust commitment to public debate. So, I think that’s one really important legacy of Sullivan, is it really allowed the Supreme Court to expand important First Amendment protections.

From my own experience, I’ve never represented a lot of media companies, but I have represented a lot of individuals sued by mayors, school board officials, and city councilmen. Sullivan has been a godsend for them because we can look at a complaint, we can look at a demand letter, I can pick up the phone, and say, “What do you have to show that my client lied knowingly? What do you have to show that my client didn’t do their homework? What do you have to show for actual malice?”, and a lot of the times, they go away, and if they don’t, it still gives us a chance to weed out those claims that are so obviously designed not to remedy a reputational harm, but to silence others, to shame others into self-censorship, and to scare others into self-censorship under the threat of financial ruin.

So, I think for the everyman, Sullivan has been vastly important, especially in the digital age today. I think Sullivan’s even more relevant because social media has given so many people a voice that they’ve never had before, particularly in places that were news deserts or where there’s a real power disparity, like the Texas border and other places, sort of harking back to the origins of Sullivan, when you have the disparity between segregationist whites and the Civil Rights Movement. So, Sullivan has been really, really important for safeguarding the free speech of just ordinary citizens to speak truth to power.

Nico Perrino: And Floyd, what does it look like inside newsrooms – the impact?

Floyd Abrams: Well, it doesn’t have a major effect – I think there are people on the Supreme Court that literally don’t know this – it doesn’t have very much of an effect within the newsroom on a day-to-day basis because newspapers try to get things right. Even without Sullivan, they would try to do that. It has an effect on the newsroom in a different way.

One is, as all three of us have pointed out, that it protects against enormous libel judgments when journalists are doing something which is writing something unpopular. We don’t have to beat up on the Old South about this, but it’s not just on the racial side, and lots and lots of situations where journalists have written about people in power and have wound up sued.

A related point – I just wanna say – on the 50th anniversary of New York Times v. Sullivan, The Atlantic Monthly published an article signed on by tons of teams of journalists, and what they were saying New York Times v. Sullivan had given them most is protection if they make a mistake. Journalists make mistakes sometimes, and if it’s an honest mistake, what New York Times v. Sullivan does in cases involving writing about public people is to afford protection in the case of an honest error by journalists, and that, too, was one of the major results and, perhaps, intentions, but intentions aside, it has given a good deal of protection within the newsroom, but it hasn’t changed at least what our great newspapers try to do, which is to get the story right.

Nico Perrino: Well, I wanna move to the controversy now, because the three of you are, it sounds like, pretty big supporters of the ruling in Sullivan, you think the court got it right, but that’s not a unanimous opinion, particularly right now. Although the decision in 1964 was unanimous, you have sitting Supreme Court justices who kind of reject some of the arguments and premises that were laid out in that decision, namely Justice Clarence Thomas and Neil Gorsuch. They argue, for example, that the actual malice standard that was established in Sullivan should be revisited.

Thomas argues that this standard allows news media to get away with life-altering falsehoods, and to your point, Floyd, Gorsuch argues that the standard laid out in Sullivan made a lot more sense in 1964, when there were fewer and more reliable sources of news and less clickbait journalism. You talk about how – you call them “our great newspapers,” they have fact-checking departments, they try and get things right. News reporting has kind of been democratized in the era of Substack and social media. A lot of times, we get our news from Twitter, for example.

And so, what Gorsuch says in a dissent from the court’s decision not to take up a certain libel case – he said, “What started in 1964 with the 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.”

So, how do we think about Sullivan in the era of democratized reporting on Twitter, Substack, and all these other blogs that you see proliferating, places where you can have someone out there on an internet chat forum say that a pizza parlor here down the road in D.C. is home to a satanic pedophile ring, for example? And I’ll let any of you who wanna jump in take that one.

Matthew Schafer: It’s funny, the case you reference is Berisha v. Lawson, and it was a case that I had the privilege of representing our in-house subsidiary, Simon and Schuster, in. It was a deeply researched book, and Gorsuch’s opinion, in the context of a deeply researched book about a matter of clear public concern –

Nico Perrino: This was something about Albania?

Matthew Schafer: Yeah. So, the plaintiff in the case was the son of the former Albanian prime minister. There was an allegation in the book about the plaintiff’s involvement in alleged criminality. It had been covered in news outlets prior to the publication of the book, and again, it was a deeply researched book, so I just wanna say that off the top because I find Gorsuch’s opinion, in the context of the case – and it was just a dissent from denial of certiorari, which is just an opinion that justices can write when the court denies to hear a case, so the opinion itself has no precedential value, and I think our listeners should know that. It is essentially a judicial op-ed.

And Justice Gorsuch, in that context, he’s talking about the complete lack of fact-checking nowadays, “the sky is falling,” and yada yada yada. It just seems so disconnected from the actual malice rule. If anything, when you look at his opinion, when you look at the things that he is criticizing, it seems more that he’s criticizing Section 230, which protects various internet computer services from liability for speech provided by third parties, and the court, just yesterday, began hearing a Section 230 case, and it seems unwilling to do anything in the Section 230 context, if we take any pointers from the –

Nico Perrino: This is the Gonzalez v. Google case. There’s another case being heard today.

Matthew Schafer: Yeah, exactly. So, it’s kind of strange to me. I take his concern about our overall information climate, but it’s not at all clear that the state of our information economy is because of Sullivan, so I accept his criticisms, but I’m just not sure his target is correct. And then, I’ll posit a question for all of you as well.

I do wonder if Sullivan has just – it’s clearly been politicized at this point, and I think it’ll continue to get more and more politicized, and we can obviously talk about what that looks like in the coming years, but there was a companion case, as the folks on this call know, to New York Times v. Sullivan, which was Abernathy v. Sullivan, which was four ministers whose name had been put on the advertisement, and I wonder if Justice Brennan made a mistake when he really decided to focus – more so, I think – on New York Times and less so on the four individuals.

To go back to JT’s point, the actual malice rule is not a subsidy for the news media, the actual malice rule is a protection that everyone shares, and I don’t think I’m surprising anyone by saying that the media is not horribly popular, has not been horribly popular for a long time, and I wonder if Sullivan’s connection to the media and the politicization of the media is ultimately going to be the undoing of Sullivan.

Nico Perrino: Yeah. I don’t have the data in front of me, but the data is clear the respect and appreciation for the news media has been declining over the years, and I think much in the way that folks see Section 230 as protecting internet companies from any sort of liability related to the spread of mis- or disinformation, whatever the bogeyman is today, they see the same sort of protections that Sullivan provides to the news media as giving them cover to, in some cases, produce what people argue to be biased journalism or falsehoods.

I know the case that was up before the court that Gorsuch issued his dissent from taking up on might not be the best context in which to discuss the criticisms of Sullivan, so I wanna move to another example, which is Nicholas Sandmann and the Lincoln Memorial debacle of 2019. I don’t know if you guys recall this, but on January 18th, 2019, a number of news outlets reported on a confrontation that happened in front of the Lincoln Memorial involving a high school student and a Native American man named Nathan Phillips, and initial reports, based on limited video that was circulating on Twitter and elsewhere, described one student, Nicholas Sandmann, as kind of harassing and mocking this Native American man while he’s wearing a red MAGA hat, which then led to death threats against Nicholas, doxing, and later a statement from his school – Covington High School – condemning him for allegedly mocking.

But later, once – I believe Robby Soave over at Reason did a lot of initial reporting that uncovered this – there are longer videos that came out, and it turns out that the Native American man was not being mocked by the student, the Native American man was trying to defuse the situation because the students were actually being bullied, called homophobic slurs, by a group of Black Hebrew Israelites, so the situation was just much more complicated, but it more or less resulted in serious threats on Nicholas’s life, and he later filed lawsuits against a number of news organizations.

He settled with CNN, The Washington Post, and NBC Universal later, but he lost his suits against, for example, The New York Times, CBS, ABC, Rolling Stone, and some Gannett publications. So, in this case – and this is probably an opportunity to maybe pivot a little bit to discuss how Sullivan has been expanded from public officials to public figures. How should we think about that case and the real-world harm that can come from false, particularly early reporting, when the situations are unclear about, in this case, a minor student who was thrust into the public spotlight through no choice of his own?

Floyd Abrams: I’d just weigh in and say that was a very hard case. Characterizing him, as the press argued, as a public figure – limited purpose, no less – public figure because he was speaking out on a matter of public interest is the farthest extension of Sullivan, and one of the more controversial extensions or expansions. It wasn’t an easy case at all, but the current interpretation of Sullivan is, I think, harder to justify than the initial one, and I think that the Sandmann case is a good illustration of that.

Justice Brennan certainly was talking most, in Sullivan, about criticism of government, and then, we moved on from there to, in effect, powerful people, people who, by the nature of their fame, have impact on the world. Kelly Clarkson is a public figure, Derek Jeter is a public figure, and false criticism of them is protected under New York Times v. Sullivan, as interpreted, so long as there was no actual malice proved.

Those seem to me, again, harder cases, the Sandmann case one of the hardest yet, and I think the answer to it may be that, quite contrary to the current mood, at least, of some members of the Supreme Court, the sense of the ultimate juridical deciders of it was everything occurred here in public, it was about a matter of genuine public interest, and the criticism of him was false, but innocently so in the sense that they weren’t trying to destroy someone that they knew hadn’t expressed views of which they disapproved.

But, the farther we move from Sullivan, the farther we move from publications to individuals and then beyond that, it seems to me the closer the case comes. Now, it seems to me the members of the Supreme Court who are dissenting from continuing Sullivan, who’d like to overrule Sullivan, view it precisely the opposite. What they are offended by is the press reportage about really public matters, which I think Sullivan was absolutely right about and has served the public well.

Nico Perrino: Well, you have a law professor at the University of Tennessee, Glenn Reynolds, who some of you might be familiar with, who wrote an op-ed in The Wall Street Journal, I believe, in 2021 who – he’s a conservative – argued that Sullivan really isn’t the culprit, it was the subsequent cases that came in 1967, such as Time v. Hill and Curtis Publishing v. Butts, which expanded, of course, the ruling in Sullivan regarding public officials to public figures.

And then, in the 1970s, you had two other cases that expanded public figures to include ordinary citizens who thrust themselves into public debates, which, according to Glenn Reynolds, meant “anyone, however obscure, who spoke out would lose traditional protection against libel and slander,” and he uses as an example in his op-ed in 2014, The New York Daily News reported on a woman’s allegation that Bill Cosby had raped her four decades earlier, and Mr. Cosby’s lawyer – in this case, Marty Singer – wrote a letter to the paper threatening legal action, and Mrs. McKee, who was the accuser in this, sued Mr. Cosby, alleging that Cosby’s lawyer had defamed her on the comedian’s behalf.

According to the courts, the fact that having accused a famous person – in this case, Bill Cosby – of rape was enough to make her, Kathrine McKee, a limited-purpose public figure, which, according to Glenn Reynolds – and I don’t know the specifics of it – doomed her lawsuit. And so, when the Supreme Court declined to hear her appeal in 2019, Justice Thomas filed a lone dissent calling for Sullivan to be overturned, as he has done, I think, on at least two occasions, and you even had law professor Cass Sunstein, who I think is the most prolific legal scholar of our day and age, say that it’s hardly obvious that the First Amendment forbids rape victims, such as Kathrine McKee, from seeking some kind of redress from people who defame them.

So, does anyone in the group think that there are some problems in the way that Sullivan – Floyd, it sounds like you get a little bit more skeptical the further you get away from Sullivan, but could it be that the way Sullivan has advanced over the years has opened it up to criticism, so to speak?

Floyd Abrams: Yes, I think so. As to whether those cases are wrong, maybe I’m copping out, but I really haven’t decided for myself. The Cosby case is a very good one to use in talking about just how far the theories – in my view, the quite correct theories – of Sullivan should be carried forward. I think it’s one thing to say that with respect to a public figure like Cosby, he certainly is, in every way, a public figure, and things people say about him ought to be presumptively protected unless they were knowingly false, but when you move away from that and you move into the woman who said something about Cosby… I’m not sure how to finish my sentence.

Nico Perrino: It gets more difficult.

Floyd Abrams: I wouldn’t weep if the court said, “Well, not that far from the core of Sullivan about being able to falsely criticize the government.”

Nico Perrino: JT, what are your thoughts here?

JT Morris: I share Floyd’s stance. It’s hard to say whether the extended cases – the Gertz v. Welch, those kinds of cases – were right or not. I will say a –

Nico Perrino: Do we know if those cases were unanimous in the same way Sullivan was, or were those divided courts?

JT Morris: Gertz was divided. I might be mistaken.

Floyd Abrams: Yes, they were divided.

JT Morris: But the main thrust of my response to somebody like Glenn Reynolds is yeah, I think Gertz, the limited-purpose public figure doctrine – those leave room for discussion, but what’s going on today is politicians/commentators are turning around and making Sullivan the bogeyman. Sullivan’s not the problem. Sullivan was right. Sullivan drilled down the essential concept of the First Amendment, that republican form of government demands that we fiercely guard our national debate.

So, I think as Floyd pointed out, when you have a situation like Nicholas Sandmann, something that takes place on the National Mall in front of the Lincoln Memorial, it’s heated, that’s in the public eye, and yeah, it’s unfortunate, but that’s the breathing space the First Amendment demands. That’s what makes us uniquely – our free speech culture and our First Amendment – so uniquely American is that we tolerate a little bit of error, we tolerate a little bit of caustic reporting and criticism for those things that happened in public because we understand it’s important to our ability to govern ourselves.

There was a case the Supreme Court released shortly after Sullivan called Rosenblum, and they actually adopted a matter of public concern standard instead of a public figure standard. For whatever reason, the Supreme Court said – I think about a year or two later, Matt can probably correct me on this – “We’re not gonna do that, we’re gonna go with the public figure doctrine instead.”

That’s always struck me as curious. If the thrust of Sullivan is about protecting and upholding that national debate, why wouldn’t you tie the actual malice rule to whether something was a genuine matter of public concern? That seems more faithful to Sullivan, and maybe – maybe not – would eliminate some of the problems we have with the limited-purpose public figure doctrine, but I would love to hear what Matt and Floyd have to say about that, if anything.

Matthew Schafer: I think that’s right. Let me assure you – so, New Jersey and New York now both have, essentially, adopted that doctrine at a state level. In New York, for example, if it’s not a matter of purely private concern, the plaintiff is going to have to plead and ultimately prove actual malice. People still have reputations in New York. It’s okay.

I think it’s looked at as kind of a bogeyman if you extend it too far, but I think that the plurality in Rosenblum was exactly right, and I think that is the basis on which Chief Justice Warren, in Curtis Publishing v. Butts, extended Sullivan in the first place to public figures. It’s this idea that there are certain issues of public concern that people in a republic have the right to talk about without fear of losing their houses, and phrased that way, I find the approach of states like New Jersey and New York rather convincing.

We’re simply going to put outside of the realm of judicial intervention, by and large, debates about matters of public policy. We’re not going to have judges decide if this particular global warming scientist is truthful with his data, untruthful with his data, fudged his data, whatever it might be. We’re not going to have judges engage in Scopes trial after Scopes trial, resolving key issues of public debate that are currently raging today.

Nico Perrino: Let me ask you something, because another one of Glenn Reynolds’s criticisms is regarding what happened in the 2000s in some procedural decisions, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. He says these precedents allow a case to be dismissed before the plaintiff can engage in discovery unless the plaintiff can demonstrate – not merely allege – actual malice.

So, you can’t actually figure out whether actual malice occurred because you cannot get to the discovery stage in these cases – so, you talk about the climate scientist. You never give an opportunity to actually look at his notes or his data that might prove actual malice. You kind of have to have a knowledge of it and demonstrate it before the discovery phase. Do you guys see that as something that’s opened up to criticism as well?

Floyd Abrams: Let me say, I think those cases, which sweep, of course, well beyond libel or the like, which are general cases to assure that our courts are not overflowing with frivolous cases and that people who are sued on no basis at all have a way to get out of these cases early rather than late. The danger of those cases is always that there is something that you don’t know yet when you sue, and if the courts would allow you to go on and on and on, you might find it, but the cost-benefit analysis with respect – and I’m talking now about the legal system as a whole – is that you wanna bring a case in federal court, which is where these rulings apply, you have to have a good-faith basis for it. You can’t just say something.

Nico Perrino: And that’s the rise of the anti-SLAPP statutes, right? Strategic lawsuits against public participation, which sort of punished these frivolous lawsuits that chill speech.

Floyd Abrams: Right, and I think we just have to acknowledge and live with the proposition that some suits that might have been valid at the end of the day, if only the plaintiff had had discovery, will fail, and in my view and the view of the courts so far with respect to these cases, including but not limited to libel cases, is that in the service of assuring that innocent defendants are not too easily hauled into court on the basis of nothing much, that will require a plaintiff to show some sort of serious basis for commencing the case.

Matthew Schafer: And it goes back to – to keep drawing analogies, piggybacking on Floyd here – to the criminal context. In an interview in the ‘50s, Edward Bennett Williams, a famed trial lawyer, was asked, essentially, “How can you defend all of these criminals, all of these racketeering folks and whatnot?”, and he gave precisely the same answer: It is better to let one guilty m an go free than to put 10 innocent men in jail.

And I think we can draw that analogy, again, back to the speech context, as Floyd was just saying, and indeed, the court has recognized – Justice O’Connor in Philadelphia Newspapers v. Hepps, a case about the plaintiff having to prove falsity, she recognized in writing for the court that this might mean that some valid claims aren’t successful, but that is essentially what the First Amendment requires of us.

Nico Perrino: You have some civil libertarians, like the late Nat Hentoff, for example, who argued that defamation claims should be eliminated altogether because of the chilling effect that they have on speech. I think when you’re a free speech advocate, you kind of push the boundaries of what’s protected. You don’t want anybody else to be more Catholic than the Pope, so to speak, because there are real risks.

JT Morris: Justice Black and Douglas, I think, in Sullivan, and Goldberg as well, even said the actual malice rule went too far. They would have said there’s an absolute privilege.

Floyd Abrams: And of course, Justice Black’s view was when the First Amendment says Congress shall make no law, they meant no law, including libel law.

Nico Perrino: Unless you were talking about students in the high school context, right?

Floyd Abrams: Yeah…

JT Morris: Teachers was an outlier.

Nico Perrino: So, I know I said I’d keep you for only an hour. We’ve got five minutes left, if I can take that time. I wanna ask about a new law – or, a new bill, I should say, that was introduced in Florida this week. So, earlier this week, on February 20th, a Florida legislator introduced a bill that seeks to roll back some of Sullivan’s protections. The bill came shortly after Florida Governor Ron DeSantis attacked Sullivan and signaled that a new bill would soon be introduced to limit what he sees as the news media’s deleterious effects on society.

So, the original iteration in the bill – there’s been a second; the original iteration has been withdrawn, there’s been a second that has passed – or, expanded, but the original iteration would have narrowed the list of people who may be deemed public figures, declare that speech from anonymous sources would be presumed false, so I guess Thomas Paine’s Common Sense, Federalist/Anti-Federalist Papers – America has this long tradition of anonymous speech, so it just seems sort of ahistorical that the First Amendment wouldn’t protect that sort of speech that formed America, but –

Matthew Schafer: Justice Thomas would agree with you.

Nico Perrino: The bill would also mandate that failure to “verify or corroborate an alleged defamatory statement would constitute actual malice,” and what’s more, the bill proposes awarding costs and attorney’s fees to any plaintiff who wins a defamation suit. Now, I said that bill had been withdrawn, and then the next day, a new bill had been introduced with all those same changes, but it would also – the new version – eliminate the qualified journalist privilege for professional journalists in defamation claims, meaning that professional journalists can be compelled to identify anonymous sources or materials in a defamation case without the plaintiff having to show some sort of need for that.

Matthew, you’ve kind of had a big Twitter thread going about the bill and some of the stuff that’s happened in Florida, so I’d love for you to take a moment to dissect this, what you think might be right about it, or it seems like you think there’s a lot wrong with it.

Matthew Schafer: So, I think, rather than get down into the weeds on this particular provisions, many of which, in any event, are unconstitutional –

Nico Perrino: Yeah, and we only have a few minutes.

Matthew Schafer: – at least as the law is currently, I would say this. My concern right now is that we will see, essentially, a Dobbs effect in the law of libel, where states will start introducing and passing this kind of legislation that either attempts to limit First Amendment protections for freedom of speech and freedom of the press or attempts to set up a conflict that will put the issue before the Supreme Court, much like we saw with Roe. I think this is really nefarious.

So, just to briefly go back – and it’s a risky thing to say when I am about to say “to the 18th century,” but to briefly go back to the 18th century, Thomas Cooper, who Thomas Jefferson once called the greatest man in America, said that the doctrine of libel is, in all countries, a doctrine of power, and really, what I think these laws are attempting to do and the push against Sullivan is attempting is to limit speech and bring public debate and public critics to heel to allow certain political factions to get what they want.

I don’t wanna make it sound political – I think it is political, but I think it strikes, really, at the roots of democracy, this idea – again, going back to exactly what Floyd mentioned at the beginning with Sullivan – where you have Alabama officials getting together and deciding, “Hey, we can use this doctrine of libel to keep life like it is right now,” and I’m afraid that that’s what we’re gonna see going forward. We can use these attacks on Sullivan, and we can use the doctrine of libel, in order to bend what is supposed to be robust, uninhibited, and wide-open public debate to our desires and demands, so that’s why I think laws like this or bills like this are especially pernicious.

Nico Perrino: Do you guys think we have five votes on the Supreme Court to overturn portions of Sullivan, Floyd?

Floyd Abrams: Oh, when you add the word “portions of,” it makes it harder.

Nico Perrino: I just have a hard time imagining them overturning the precedent completely, but what do I know?

Floyd Abrams: There are a few votes. We know – I think we know – there are at least two.

Nico Perrino: Gorsuch and Thomas.

Floyd Abrams: I think there are more. No, I don’t think there are five, but Justice Kagan, when she was a scholar, wrote a Law Review article arguing that the interpretation of Sullivan, which she approved of Sullivan, had gone too far with respect to – I’m not doing her justice, but movie stars are not government officials. So, yeah, it’s conceivable that they might narrow it some.

What concerns me most is that it is conceivable, although unlikely, in my view, that they could do a Dobbs result, that they could have five. I don’t think they do, and one of the reasons, to just use a name, is that Justice Kavanaugh, as a court of appeals judge, wrote a number of libel opinions which I thought were sort of healthy applications of New York Times v. Sullivan, untrammeled by “sorry I have to do this” sort of language, so I don’t think the votes are there now, but if former President Trump were reelected and he got a chance – not just he, but he got a chance to appoint some more justices, sure, it would be at risk.

Nico Perrino: Yeah, he called for opening up the libel laws. I don’t think you’d get Roberts’s vote here just because he’s very skeptical of anything –

Floyd Abrams: Oh, I agree.

Nico Perrino: – that’s gonna clog up the courts, and if you get rid of Sullivan, you’re just gonna clog up the courts, right?

Floyd Abrams: I think the chief justice not only views himself, but correctly views himself as a defender of the First Amendment.

Nico Perrino: JT, any final thoughts here before we close up?

JT Morris: Yeah, I share Matt and Floyd’s concerns. Before last summer, if you would have asked me if there’s a chance in heck that Sullivan would have been overturned, I would have said no, but with Dobbs and Bruen coming along, it gives me a little bit of pause. I will give one ray of hope, and there was a petition before the court last year, Coral Ridge v. Southern Poverty Law Center, which factually set up what I was concerned about was a case ripe for them to take. You have a Christian group, who was a plaintiff, suing the Southern Poverty Law Center because they designated them as a hate group.

Both the district court and the 11th Circuit dismissed the case exclusively on actual malice. So, you had a Christian group who was declared a limited-purpose public figure getting their defamation case tossed on actual malice, and after 10 or 11 delays from the Supreme Court about whether they were gonna decide it, they finally said – with a lone dissent from Justice Thomas – “No, we’re not gonna hear this case.” So, that gives me a little bit of hope that maybe they’re gonna keep Sullivan in place, and also, Sullivan was unanimous. As we discussed earlier, it underpins so much more of the court’s First Amendment doctrine that hopefully, they leave it in place and let it do the good work it’s done for 60 years.

Nico Perrino: Well, JT, I think we’re gonna leave it there with that ray of hope. Gentlemen, I appreciate you coming on this show, and I hope to do it again soon.

That was Floyd Abrams, JT Morris, and Matthew Schafer. If you enjoyed this episode, please subscribe to So to Speak wherever you get your podcasts so you don’t miss a future episode. This episode was hosted and produced by me, Nico Perrino, and edited by my colleagues Ella Ross and Aaron Reese. You can learn more about So to Speak by subscribing to us on our YouTube channel, which is linked in the show notes and features video of this conversation.

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