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Hey, Twitchy readers, do you need a break from the election day madness? Maybe you are in line to vote, you know exactly who you are voting for, and you would like to read something that talks about something else for a while. But you aren’t in the mood for fluff, either: You want to read something substantive.

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Well, in that spirit, let’s talk nerdy constitutional law for a minute, here, because Senator Mike Lee of Utah has a thread on Twitter/X where he argues that the Supreme Court should overturn a case called New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 

We should probably start with the case itself, which frankly was tied up very much in the Civil Rights Movement of the 1950’s and 60’s in a case coming out of Alabama. In 1964. Involving black people alleging misconduct by the police. In Alabama. In 1964. Did we mention that this took place in Alabama, in 1964, and it involved black people alleging misconduct by the police?

Jokes aside, here’s where we responded to part of Lee’s thread by providing a link to where you can read the case:

And here’s the facts, as the Supreme Court discussed them:

Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama. He testified that he was ‘Commissioner of Public Affairs and the duties are supervision of the Police Department, Fire Department, Department of Cemetery and Department of Scales.’ He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. 

Respondent’s complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, 1960. Entitled ‘Heed Their Rising Voices,’ the advertisement began by stating that ‘As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U. S. Constitution and the Bill of Rights.’ It went on to charge that ‘in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom. . . .’ Succeeding paragraphs purported to illustrate the ‘wave of terror’ by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, ‘the struggle for the right-to-vote,’ and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery.

(Footnotes and citations omitted). The advertisement also alleged that the police engaged in various forms of misconduct that Mr. Sullivan said amounted to accusations against him. The advertisement also talks very specifically about how an amorphous ‘they’ went after Dr. King:

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Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for `speeding,’ `loitering’ and similar `offenses.’ And now they have charged him with `perjury’—a felony under which they could imprison him for ten years. . . .

And thus, this was read by the lower (state) courts as an accusation that somehow Sullivan was involved in things like bombing Dr. King’s home:

Although neither of these statements mentions respondent by name, he contended that the word ‘police’ in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of ‘ringing’ the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission. As to the sixth paragraph, he contended that since arrests are ordinarily made by the police, the statement ‘They have arrested [Dr. King] seven times’ would be read as referring to him; he further contended that the ‘They’ who did the arresting would be equated with the ‘They’ who committed the other described acts and with the ‘Southern violators.’ Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King’s protests with ‘intimidation and violence,’ bombing his home, assaulting his person, and charging him with perjury.

But really, a reasonable reader wouldn’t read that as the police doing all of that. A reasonable reader wouldn’t read all of those acts as being done by the police but rather by an amorphous group of racists who may or may not have been working together. And bluntly, we are not sure the Supreme Court really believed that all of these statements were about the police, but on an appeal, there is no room to challenge the facts outside of very unusual situations which are not present in this case. And how can we say this? This author bears no prejudice towards modern Alabama. Some of our best co-workers and friends hale from there. But this case came up through the Alabama courts in 1964, and this author trusts the justice system of that place and at that time when it involves black people about as much as we would trust the justice system of modern China or Iran: As in, not at all. And we suspect the Supreme Court had a similar attitude. There are just some places and times where you just can’t trust the court system to do justice.

Moving on, that Supreme court ultimately held that where a public official claimed to have been defamed, that person had to prove what is now called by lawyers ‘constitutional malice.’ This innovated the law in several ways. For starters, at the time, it was common in most jurisdictions to say that if someone claimed they were defamed, that the defendant had to prove that it was true. So, if you wrote that ‘Lorena Bobbitt cut off John Wayne Bobbitt’s manhood’ and she decided to sue you over that statement, you would be required to actually prove she did that—even though this is pretty much an uncontroverted matter of public record. That could be extremely inconvenient because you might make the statement at your computer sitting in Alaska, and then you would be forced to defend yourself in an Alaska court, far away from Manassas, Virginia, where the incident took place. Thus all of the evidence and witnesses—to the extent the witnesses haven’t died and the evidence hasn’t been lost—were likely to be found about one quarter of the world away.

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So, the first innovation is that they said that, at least when dealing with public officials, truth wasn’t a defense. Instead, it was on the public official to prove it is false. Furthermore, ‘constitutional malice’ required the public official to prove that the false statement either had to be made with knowledge that it is false or with a reckless disregard for the truth or falsity of a statement.

After that, subsequent cases extended that doctrine to all ‘public figures’ which is famous people, more or less. For instance, when Johnny Depp sued Amber Turd Heard in this author’s virtual backyard in Fairfax County, Virginia, he claimed it was for defamation and he had to meet this very high legal standard. This is why we were genuinely shocked when he won that case.

And not for nothing, but it also applies to many infamous criminals. There is unfortunately a phenomenon we attorneys call ‘jailhouse lawyers,’ which describes a breed of prison inmate who loves nothing more than to file frivolous lawsuits. They are almost never actual, licensed attorneys, but they like to file frivolous suits because it is a way to create problems for their ‘enemies’ (defined broadly and often delusionally) and it gets them out of their cell when they have to appear in court.

So this rule cuts down on this abuse by ‘jailhouse lawyers’ when people are infamous for criminal conduct. So, for instance, imagine that Jeffrey Dahmer was still alive and decided to sue people for allegedly libeling him. Well, Dahmer would be considered a public figure because literally his career as a serial murderer had made him internationally famous and, therefore, it would be harder to even plea a proper case for defamation.

By the way, this author uses the blanket term defamation to describe both libel and slander. If you need a quick tutorial on the difference between the terms, this classic moment from the first Spider-Man movie explains it hilariously well:

There’s a reason why Marvel didn’t even try to recast the role. No one could top J.K. Simmons with his comedic timing. In any case, defamation covers both terms: libel and slander.

And we have to confess a potential source of bias here. This precedent, NYT v. Sulivan, protects this site. It has protected this author’s clients. It has even protected this author, personally. It protects anyone who criticizes any famous person, especially public officials, not only by helping them win a case like this, but by discouraging such cases from being filed in the first place. We would like to think we are still being fair despite this potential source of bias, but we want to be honest about it.

So that brings us to the Mike Lee thread. We like Mike Lee in general, but we think he is making a mistake by advocating that this case be overturned. But let’s let him get his side of things out, as written in a multi-part thread. Indeed, he was proud enough to make the start of the thread his pinned post on Twitter/X:

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We will note that these statements are mostly true. First, it is true but incomplete to say that the media is protected by Sullivan. Obviously, the media was protected by that decision, but in truth everyone is protected by it. If this author wrote on Twitter/X tomorrow that ‘Joe Biden is a racist’ and we got sued by the racist old coot at 1600 Pennsylvania Ave, Sullivan would protect us in the sense that it would make it harder for him to win the lawsuit or even survive a motion to dismiss. And the same can be said for literally any person—not even every citizen, but every person—who wrote the same thing. Sullivan very much protects the little guy against the ‘big guy.’

(And yes, that pun was intentional.)

Mr. Lee goes on, and we will avoid interrupting him for a while:

And that is another point where we will break in, because we think Sullivan is actually a valid understanding of a doctrine dating all the way back to McCulloch v. Maryland, 17 U.S. 316 (1819). We have talked about this case before, here and here, but it’s about much more than just whether Maryland could tax the national bank. To quote ourselves:

[T]he thing to get is that while the Constitution is the highest law in the land, it isn’t written like most statutes, with lots of specific limitations and qualifications. Instead, much of it is about goals that the government may pursue and goals it may not pursue. If the goal, or ‘end,’ is allowed, the power of the Federal Government to pursue it is very broad.

We then quoted from McCulloch, where it said:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

And we went on to explain that

In other words, if the goal is allowed, the Federal Government has wide latitude in pursuing that goal. But conversely, if the goal is prohibited, then the Federal Government can’t pursue it by any means.

Here, we are talking about state power, but we are talking about the same thing, especially on the facts in Sullivan itself. A government official (Sullivan) was using a government court to try to suppress speech he objected to. The risk was that public officials (and others) could then use lawfare to accomplish a goal forbidden by the First Amendment—suppression of what is normally free speech. Because even if we assume that this suit involved false and defamatory statements, the next suit and the next suit might not. We have seen in our personal life how people would be afraid to speak out against government abuse out of fear of just being sued. So, in order to thwart that goal, the Supreme Court invented this rule. This is perfectly normal constitutional reasoning, so we would have to respectfully disagree with Mr. Lee on this point. The very way our Constitution is written and interpreted for over two hundred years supports the conclusion the Supreme Court reached in that case: Alabama cannot suppress free speech by any means, including lawfare. 

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Lee goes on:

Well, first, you know by now that this doesn’t just protect the media. It protects everyone.

Second, it doesn’t always work to protect the media or even private individuals, as we noted when the Second Circuit revived Sarah Palin’s defamation suit against the New York Times. In that case, they couldn’t justify how much they hid their heads in the sand.

That all being said, some precedents interpreting Sullivan don’t seem to even require a person to do even the most basic fact checking to survive the test for constitutional malice. We would be extremely sympathetic to a rule where if you claim that a person said X, and there is video, and you don’t bother to even look at the video, then any false statements caused by that failure is considered reckless disregard and thus, constitutional malice. We especially would support anyone who operates as a journalist being required to do that most basic of fact checking.

So, for instance, take the recent controversy where it is claimed that Donald Trump talked about killing Liz Cheney. We don’t think we have to tell you that Donald Trump was actually basically calling Cheney a chickenhawk. We are not huge fans of that insult. We voted for Trump but we don’t think he is perfect. But whether we agree with him or not, it is what he said and it is plain that this is what he was saying when you look at the longer video:

Even in the shorter clip, it was clear he was talking about combat. The legacy media said that Trump was talking about her facing a firing squad, but Trump clearly said she would have a gun, too. That doesn’t happen in firing squads.

So, what we are saying is that this author would support a rule that would say that if CNN reported that Donald Trump threatened Liz Cheney but never bothered to look at the video, or only looked at a very clipped video from an obviously biased source (such as his opponent’s campaign) that this would represent reckless disregard for the truth, supporting a finding of constitutional malice. Seriously, every time anyone hears a claim that so-and-so said an outrageous thing in public, demand video proof and make sure that you are seeing enough of the video to feel confident that you are hearing the full context. Be smart consumers of the media.

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So we would support an adjustment to how the precedents have interpreted Sullivan, rather than a challenge to Sullivan itself.

Mr. Lee goes on:

Except when you remember this standard protects everyone, the bias is less lopsided. Besides, it is not a valid reason to overturn a precedent in how to interpret the First Amendment because one side of a debate benefits more than the other.

But of course, most of the people disadvantaged by the decision are the big guys, and often they are going after the little guys. And the big guys do have recourse. Even if the courts of law can’t help them, the court of public opinion can. If you defamed either presidential candidate tomorrow, for instance, they can easily find a network willing to cover them as they respond. 

And we think, frankly, discussions like Mr. Lee’s and this article are also useful. Hopefully by reading this, you have learned not to think for a moment that when MSNBC says something bad about Trump that ‘it has to be true, because otherwise Trump would sue them for defamation.’ Now you know that Trump would have such a slight chance at winning such a case, that he probably won’t bother to sue in most cases. The same can be said for a number of other famous and important people. So, then you know not to take what they say so seriously, to exercise appropriate skepticism when any news source talks about them. A wise consumer of news is a best inoculation against false statements.

Lee goes on:

This is certainly true. Even without Sullivan, the states could create rules to fight lawfare and they absolutely need to do better on that. Sullivan helped with lawfare, but we could do much better.

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Fair enough. Frankly, we appreciate a Senator getting into the muck with the details of the law and we think this discussion is useful, even if we don’t agree with his ultimate argument.

We will add, however, that as of now only one Supreme Court justice has expressed any interest in overturning Sullivan and do we have to tell you who that is? Yep, it’s Clarence ‘the Hammer’ Thomas. Our point is that it seems right now that it would be very hard to overturn that decision, even if one wanted that to happen. To be blunt, NYT v. Sullivan isn’t on the ballot today.

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