On April 21, 2021, the Federalist Society's Free Speech & Election Law Practice Group hosted a teleforum titled "Revisiting New York Times v. Sullivan." The Supreme Court’s landmark decision in New York Times v. Sullivan came under scrutiny in a recent dissent by Judge Silberman of the DC Court of Appeals. Noted First Amendment scholars Glenn Reynolds and Floyd Adams weighed in on the discussion addressing whether or not the nearly sixty-year-old case should be revisited, and the impact of First Amendment driven defamation laws in the journalistic context and free public discourse.
- Prof. Glenn Reynolds, Beauchamp Brogan Distinguished Professor of Law, University of Tennessee College of Law
- Floyd Abrams, Senior Counsel, Cahill Gordon & Reindel LLP
- Moderator: Erik Jaffe, Partner, Schaerr Jaffe LLP
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Evelyn Hildebrand: Welcome to this afternoon's Federalist Society virtual event. Today, April 26, we discuss “Revisiting New York Times v. Sullivan.” My name is Evelyn Hildebrand, and I am an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.
Today we are fortunate to be joined by a very distinguished panel. I will introduce our moderator who will introduce our speakers. Mr. Eric Jaffe is an appellate lawyer in Washington D.C. who focuses his practice on First Amendment litigation. He is a partner at Schaerr Jaffee, LLP, and he is the chair of our Federalist Society Free Speech & Election Law Practice Group. And we are very pleased to be joined by him and our speakers this afternoon.
After our speakers give their opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the event. If you would like to ask a question, please submit those questions via Zoom chat.
With that, thank you for being with us today. Eric, the floor is yours.
Eric Jaffe: Thank you very much, Evelyn. And I'm very happy to be here with all of you and with my two speakers and guests. I will introduce them in order of speaking in a moment, but, as you know, we're here to discuss New York Times v. Sullivan, particularly in light of some recent criticisms.
Many of you may have followed the controversy. Justice Thomas sort of started it off by criticizing the decision in New York Times v. Sullivan as lacking a historical foundation not based on either the text or the history of the First Amendment, but rather a policy-driven decision designed to make it harder for public officials to bring libel suits against those who would criticize them.
More recently, Judge Silberman has echoed the call for revisiting New York Times v. Sullivan, slightly less on a historical constitutional basis than on a disagreement with the policy premises of that decision, and particularly his view that things may have changed since that decision was passed. And the media is not the great protector of rights that perhaps the New York Times court thought it was. That itself being a policy analysis, I think we will have both legal and policy discussions today.
Our first speaker will be Professor Glenn Reynolds, who is a professor at the University of Tennessee College of Law who writes prolifically on all sorts of topics including the First Amendment and is perhaps most famous for his role on InstaPundit, his role and blog on InstaPundit. I refer you to the announcement for this and the website link for a more detailed analysis. I won't waste your time reading things that we have up.
Our second speaker will be Mr. Floyd Abrams, the famed First Amendment lawyer who has been involved in more cases than I can count, and I believe it’s 13 Supreme Court arguments including the Pentagon Papers case, among many others. He is a senior counsel at Cahill, Gordon & Reindel, and we are delighted to have him with us as well. I think we'll have a great discussion. And with that, I will turn it over to Professor Reynolds.
Prof. Glenn Reynolds: Hi. Well, thanks for having me here. It is a pleasure to talk about this. We are sort of in a different place, I think, than we have been in the discussion of libel, and New York Times v. Sullivan and such, and it does show you the power of dissent that Clarence Thomas and Judge Silberman between them have managed to sort of put an issue on the table that was not getting much attention and made it the subject of a national discussion. It helps, I think, that it's a time when a lot of people on the left and the right are pretty unhappy with the media for a variety of reasons, including corporate concentration and click-driven headlines and that sort of thing.
But it's also the case that -- I'm going to just briefly, as I've been asked to, bring us up to speed on kind of where we are. And I'm going to start with the shortest history of libel law you probably will ever hear, and we'll go on from there.
So libel, traditionally in common law, allowed you to sue anyone for a statement that was false and defamatory. Malice was presumed, and there was no First Amendment protection. Of course in common law before the Constitution, there was no First Amendment. But it was taken for granted after the Constitution was adopted and for nearly two centuries, about 170 years, that libel simply was not within the scope of the First Amendment, that if a statement was libelous, it was not protected, somewhat like obscenity in that sense, though not exactly.
And one of the interesting things is it was pushed to a large degree, libel lawsuits, as a substitute for dueling. Dueling was quite big at the time of the Constitution as everyone who has seen Hamilton knows. And, in fact, I had a chapter in Lisa Tucker's excellent book called Hamilton and the Law, which has a lot of interesting stuff in it about dueling in particular and to some degree about libel. The thought was if people sued, they wouldn't shoot each other. And perhaps that was a reason for making libel suits a little more attractive than perhaps we might have made them otherwise.
At any rate, this was the law for basically 170 years, even though dueling was largely out of style. In fact, the only close thing to a duel in my lifetime I can think of was when Zell Miller kind of, sort of threatened Chris Matthews on Hardball once to challenge him to a duel.
Well, in 1964, we get -- well, in the '60s, in fact, we get, if you want to be pejorative, you could call it a conspiracy. It was at least a coordinated effort by state officials in the south to use libel lawsuits against the national media to chill the coverage of segregation. And the reason why they did that was that it was asymmetric warfare. The Civil Rights movement had a lot of support from powerful national media organizations who gave them lots of coverage and attention, frequently pretty sympathetic. And there was not much the southern states and communities could do to fight that.
But what they could do was file libel lawsuits, and then they're on their own turf. They have sympathetic local juries, sympathetic local judges, neutralizing a lot of the advantages of national media. And that is exactly what they did, and it was quite effective. By the time New York Times v. Sullivan, which was one such case, made it to the Supreme Court, there were about $300 million in outstanding libel claims, which I think is somewhere in the neighborhood of $2.5 billion today.
And it was affecting coverage. The New York Times' general counsel's office told reporters not to travel to Alabama for fear that they would be served with process or sued for libel. And a number of stories about people like Bull Connor and such were quashed for fear that they would produce more libel suits. So this was a new thing in the field of libel. That sort of coordinated attack had never been done before, and there's a good history of this in Anthony Lewis' book, Make No Law, which is the story of the Sullivan case.
So the case came to the Supreme Court, and the Court essentially rewrote the law of libel to give it a First Amendment spin. Now to recover, it wasn't enough to show that a statement was false and that it was defamatory, that is, that it would make people think less of you. You also had to show that it was made with actual malice which meant knowledge of falsity or reckless disregard as to whether it was true or not, and that is if you are a public official, which was quickly changed to public figure.
So the original Sullivan decision which, when people talk about the New York Times v. Sullivan, they're really talking about a whole body of case law, much of which is disconnected from the actual Sullivan case. The actual holding in Sullivan itself was relatively narrow in that it only required public officials to show actual malice in order to recover damages in a libel case. This, however, quickly was expanded to public figures, and then we always had to try to figure out what that is.
There's a great scene in the movie Absence of Malice, which I think I can safety say is far and away the best Hollywood movie ever made about libel law, in which the newspaper lawyer says, "If I knew what that was, I should be a judge. They never tell us. Too bad he's not a football coach. They are very easy." Football coaches always public figures, it seems.
But a public figure now can be almost anybody. And, in fact, what sort of kicked all this discussion off was McKee v. Cosby. That was a libel suit against Bill Cosby's lawyer by one of the women who had accused Cosby of being raped -- of raping her. And Clarence Thomas said it seems odd, because this woman accused Bill Cosby of rape, she is now a public figure, and therefore, she has less protection against libel than an ordinary citizen.
But that is, in fact, how it works. Indeed, the limited purpose public figure law refers to people who thrust themselves into the vortex of public debate and seems to suggest that the Court sees participating in public debate that way is really a bit unseemly, almost. You should know your place, peasants. And if you don’t, you're on your own, reputation-wise.
So after New York Times v. Sullivan, we saw a number of expansions. The public official quickly morphed into public figure in a couple of cases, and actual malice sort of continued to ramify in ways that made it somewhat less demanding. In St. Amant v. Thompson, the Court said there is no duty to investigate, even if a reasonable person would, to see if something was true or not. You had to have an actual subjective belief that it was false or that it might be false before it mattered.
Then we get into a couple of procedure cases, Iqbal and Twombly, where the rule is it's not enough to simply plead knowledge of falsity or reckless disregard. You have to plead facts that plausibly suggest that that happens. And that makes it much harder because you're at the pre-discovery stage then.
And the effect of all of this, which people tend to sort of glom together and treat it as if it's all New York Times v. Sullivan, is to make it much, much harder for libel plaintiffs to recover than they used to. Now, maybe part of that is that people don't duel very much anymore, and as a result, we don't need to reward people. We don’t need to lure them away from dueling with easy libel suits.
But at any rate, we are now in a situation where the ability of people whose reputations are damaged to recover damages is much, much less than it was pre-Sullivan. And there is, if you read the Court's cases on this and also some of the correspondence within the Court that Anthony Lewis mentions in his book, there is a class angle to this.
I wrote a book a couple of years ago called The Judiciary's Class War in which I suggested that an awful lot of stuff the Supreme Court has done is driven by its educated gentry class sympathies with other members of the educated gentry class. And there's a real feeling of class solidarity between the judges on the Court and the chattering classes that comes out in a lot of these things. It winds up being a subsidy to the press because to some degree, well, we like the press. They're people like us. And that feel comes through in the opinions, especially once you start thinking about it a little bit.
And I think the backlash has come along not least because the press gets a lot of things wrong, and people have noticed. And so that's what has brought us to the place where we are now. And it's not helping that they've been laying off fact checkers and copy editors and such all this time. But we are now in a situation where I think the press doesn't have the deep well of trust and affection that it actually did enjoy among lot of people, say, at the time of Watergate and afterward. And I think that it's a bad time for the press for us to be having this discussion.
But I think we can move on from there. I think I've used up my time.
Eric Jaffe: Mr. Abrams, the floor is yours.
Floyd Abrams: Okay. Thank you. Thank you. I thought the best way that I might frame this is first to deal with the general theme of Judge Silberman's opinion, which was that the press was one-sided, too democratic, too liberal, too biased, too untrustworthy, and hence, should not be given this gift of New York Times v. Sullivan and all the protections that it has.
And so I would just start out by recommending to those of you that might share some of the judge's political views, to ask people at Fox News what they think of New York Times v. Sullivan at a time when Fox is faced with a very challenging libel suit by Smart Mattick, one of these entities with all the voting machines. I urge you to read Paul Clement's brilliant brief on behalf of Fox, effused with First Amendment argument and themes and, of course, New York Times v. Sullivan.
And the same is true, National Review has one case, an important case based on the holding in New York Times v. Sullivan. It may help the liberal press more because there is more liberal press than conservative press. But really, that's not a good reason to talk about getting rid of it.
I think it is useful to compare life under New York Times v. Sullivan with life without it. Compare us to England, for example. The mother country, the place from which libel law initially came. And think of all the threats made by Lance Armstrong and all the money Lance Armstrong was given in settlements in England because the English press had suggested, more daintily than the American press, that he was on drugs when he won his big bicycle races, which was true. He was on them.
But before that came out, large sums of money were paid to him by media entities in England, as the same is true of Liberace. Some newspaper made reference to him being gay. He said he wasn't. He threatened litigation. There was a settlement. There was another settlement later on, on the same thing until the truth was announced by him.
And maybe more along the line of those of you in the audience, Cambridge University press had commissioned a book, a biography of Vladimir Putin, which said in substance that he hung out in very suspicious ways with rich Russian corrupt people. They fact-checked the book. They were satisfied with it. There was a threat of litigation by President Putin, and they cancelled. They wrote a letter to the author saying, quote, "We have no reason to doubt the veracity of anything that you've said," unquote, but the costs and dangers of litigation are just too great. It was published here. There was no litigation. There would have been, probably, litigation there.
And finally, by way of example, but I think it's telling that the Rachel Ehrenfeld case of some years ago -- an American journalist who wrote a book about the funding of terrorism, an extensive book, part of which focused on a Saudi billionaire who she argued had helped to fund terrorist acts. She was sued in England because 23 copies of her book had managed to get to England. Their law has since changed about that, jurisdiction issues. She didn't show up on advice of counsel. A $225,000 judgment entered against her.
Her book was based upon, among other things, statements of the Federal Reserve Board, the Department of State, the U.S. Senate Committee, and the Federal Reserve Bank. But we lawyers know that you can't prove truth by what someone else says. That is hearsay. And she was well advised that she couldn't win in England because she couldn't prove that the things suggested and, indeed, asserted in the book about the Saudi individual.
So judgment is entered with a very nasty opinion by an English judge, and efforts started to be made to collect here when, who would've thought it, the Congress comes to her rescue and unanimously in the Senate and unanimously in the House passes what is, and signed by President Obama in 2010, the Speech Act, which says we will not enforce foreign libel judgments entered in countries that do not recognize our level of First Amendment protection, read New York Times v. Sullivan.
In my view, New York Times v. Sullivan has become part of a series of decisions which provide in a uniquely American way far more protection for speech and press than has existed in any country at any time, and surely now. For example, in 1941 the Supreme Court in Bridges v. California, said in substance, English law as to contempt of court cannot exist here. The purpose of the First Amendment was to provide much more protection for Americans than ever existed in England.
The English editors know that they can't publish prior criminal record of a defendant. They can't publish material about a defendant not yet introduced in court. That is a contempt of court. English journalists have gone to jail, and routinely through the years have gone to jail because of that. We protect lies—United States v. Alvarez, not so long ago—because even lies, bad as they are, offensive as they are and dangerous, sometimes, as they are, are part of the verbal process which we hope ultimately leads to truth.
And in one area after another, the last I'll cite is hate speech. We are alone in the world in protecting speech of a sort which would, in Canada, in England and other great democratic countries, be violative of law. In Canada, when an individual there objected to homosexuality being taught in high schools in Canada, he made what we used to call pieces of paper with typing on them and put them in mailboxes around town in Saskatchewan. Guilty, guilty affirmed by the Canadian Supreme Court, in a very thoughtful, serious opinion about the harm that speech which, in this case, defamed gay people, would lead to, could lead to.
We have gone our own way as a country. New York Times v. Sullivan is part of that and the case law that followed New York Times v. Sullivan is part of that. We risk affording too little privacy rights for more speech rights. We risk having more false statements that do not receive vindication about their falsity. And the courts, for what has been a policy matter, viewed as the more important value of assuring press and speech. And it's not just press, but press and speech which are freer, therefore can contribute more to ongoing debate and the like without much in the way of fear.
New York Times v. Sullivan, of course, is not absolute, as has been said earlier. We still have libel law in America. But it's a lot harder to win a libel case here, particularly for a public figure. And my view is that it has served us well in protecting our liberty that we've done that. Thank you.
Eric Jaffe: Thank you both. As the moderator, I'll take the privilege of asking some questions of my own.
Floyd Abrams: I don't think Professor Reynolds has had a chance to speak yet.
Eric Jaffe: Oh, no. He got his first shot. If he has other things he wants to answer, he can do it in response to my questions.
Floyd Abrams: Sorry.
Eric Jaffe: And I'm sure he's perfectly capable of defending his own speech prerogatives, I think.
Floyd Abrams: Okay.
Prof. Glenn Reynolds: The biggest difficulty I have in this debate is that we're really not on very different pages here. I am not all for overturning New York Times v. Sullivan, though I would be quite happy, I think, to overturn St. Amant v. Thompson and the Iqbal and Twombley cases and return to something more like the original Sullivan decision. Just to be clear, I wrote a piece in the Wall Street Journal about this a couple of months ago, which I think is why you had me here. I wrote a piece in the Tennessee Law Review called "Rethinking Libel for the 21st Century" that goes into it in considerably more detail.
But, while I don't think, as some people claimed when Clarence Thomas wrote his opinion, that getting rid of New York Times v. Sullivan would mean the end of free speech in America because I think we actually had free speech 170 years or so before that. I'm not falling for that at all. I just want that to be clear.
Eric Jaffe: Great. Like I said, I want to take the privilege of the first few questions to get the conversation rolling, and then we will start taking questions from the audience. Just to let those out there listening know that I'm watching your questions come in.
But my question, given the way The Federalist Society tends to talk about things like originalism and constitutional text, I want to go to Justice Thomas' original criticism which is that this is just a policy-driven judicial effort to protect what it likes. Some of that was, I think, mentioned by Professor Reynolds. Some of that, I think, is implicit in Mr. Abrams' comments about this leads to good results in our unique American way.
But I would like to know what is the constitutional basis if we think judges need to have a historic or textual hook? Where do we measure the freedom of speech from? Do we measure it from historic English practice? Or do we measure it from the criticisms of those practices that maybe we were trying to remedy?
Prof. Glenn Reynolds: So at the time of the framing one of the interesting things about libel law was it was sort of the flip side of Sullivan. Libeling a public figure, an official or other prominent citizen, was actually considered much worse than libeling an ordinary person because they were big figures in the community, and it was more damaging to the community if you told lies about them. So we've sort of switched that.
I actually, I think on an originalist basis, I think Thomas is pretty unassailable. What I would say is, and actually Floyd's example of the Free Speech Act kind of illustrates this, if this is such an important result, why not do it by statute? Just as I've always said if qualified immunity for cops and government officials is so great, why do we have to get it from the courts? Why didn't we get it by statute?
That's the same issue here. When people thought that there was a very similar campaign of funded lawsuits coordinated against gun manufacturers by various localities who thought they could get a sympathetic jury and so on, Congress actually passed a Liability Limitation Act protecting gun manufacturers from this sort of an assault. Presumably, Congress can do the same thing for the media, and then we wouldn't have to worry about whether it was constitutional or certainly whether it was intended by the framers.
Floyd Abrams: Unlike McClint, it's not just the media that we're talking about. I mean, to be sure, it is the media which was most at risk in 1964 when the Supreme Court looked at, yes, at a factual situation in which the national press could not cover the civil rights revolution in the south because of fear of -- not just fear, the reality of enormous libel judgments by all-white juries who were deeply offended at what was being published.
Now, in terms of where we should look in terms of the application of originalism and the like, I think that Justice Brennan, who wrote Sullivan and Professor Wexler of Columbia, who argued it, and then really had a lot to do with the ultimate articulation of the test adopted by the court. We're really saying, at the end of the day, almost as a first premise, this can't be so. What does freedom of the press mean if you can't publish something without losing everything you've got or being able to function in a democratic society?
Now, that's the opposite of originalism, and I'd do an injustice to Justice Brennan by saying he just threw up his hands and said that. I would simply put it that I couldn't deny for a moment that the circumstances in which New York Times v. Sullivan was pronounced were circumstances which led to a lot of thinking and re-thinking about just what those few words, what "or of the press" -- Congress shall make no law abridging freedom of speech or of the press. That's it? What shall we make of that?
And so they did look back to earlier times, and they looked at the sort of efforts that had been made under the Alien and Sedition Acts to suppress speech. And, yes, they looked at the opposition to that which, as Justice Brennan said, had carried the day in terms of the history. Note Justice Brennan never quite brought himself to say, "This is what the framers meant." He said the verdict of history is that the Sedition Act of 1798 must be viewed as unconstitutional because it is so—which is, of course, what Jefferson thought, too, at the time—because it is so inconsistent with the whole notion of freedom of the press.
Eric Jaffe: Professor Reynolds, do you sort of agree that there is at least some room for judicial fleshing out of subsidiary doctrines designed to protect what one might think of as the premise, if not the details, of freedom of speech and of the press?
Prof. Glenn Reynolds: Oh sure, I absolutely do. Justice Thomas, and I say this in an admiring way, but in many ways, he is sort of anti-Brennan in the sense that Brennan was very willing to sort of trim his sails to get in five votes. And as he famously said one time, "With five votes you can get anything done around here."
Clarence Thomas, on the other hand, has, by God, got his opinion, and he states it, and he's not willing to trim it to get any votes. And he says a lot of things that the rest of the Court doesn't really buy. I certainly don't think there are five votes on the Court to overturn Sullivan, though I would be -- I think there's a plausible chance that there are votes on the Court to modify existing libel doctrine in less far-reaching ways.
In a lot of these cases, and I remind my students of this, the Supreme Court gets to take all cases at law and equity. And while part of that is sort of an archaic term, it's also the case that the equities in cases really matter. And they were especially bad in New York Times v. Sullivan because it really was a government conspiracy to interfere with civil rights. It was a bunch of government officials colluding to shut down free speech, and new threats sometimes call for new remedies.
And that was certainly the justification, although, that said, it was very hard for Brennan to get his votes together on that. He went through, I think, 12 drafts of the opinion and finally Justice Harlan joined but more, apparently, out of a concern for the institutional authority of the court and the need to have a majority that because he was especially persuaded by it.
Floyd Abrams: One of the things that recurs throughout American history as the First Amendment is interpreted is what to make of the word "the" in the freedom of speech or of the press. To what extent do we read the "the" to being freedom of speech as it was at the time of the adoption of the First Amendment, or the freedom of speech as any of us would understand it, even if we had never had New York Times v. Sullivan?
The one part of New York Times v. Sullivan was, I won't say it's troubled me, but I've thought about it a lot, about the justification for including all public people of sufficient fame and the like. I'm a pretty good baseball fan, but I never thought Mickey Mantle needed the protection of New York Times v. Sullivan. And there are times when I do wonder about whether that was a good idea or not.
I note, though, that a time came, back to my earlier theme, when American celebrities were flocking to the English courts bringing lawsuits about publications from here which reach there. An American suing an American in England because the courts were so amenable to libel suits and, as has already been pointed out here, New York Times v. Sullivan aside in England, a defamatory statement is presumed to be false. The person who said it has to prove it. Whereas here, again, long pre-dating Sullivan, the person who sues has to prove falsity.
Eric Jaffe: That’s a good segue, actually, to the next question, triggered a little bit by one of the questions from the audience that I'll incorporate here from Frank Menton, to give him credit for the question which is—I'm paraphrasing—just as in New York Times where the libel suits were being used as a sword rather than a shield to attack one's opponents in the public arena and silence them, we see quite a bit of that still happening today, not the least of which, from conservative perspective, shouldn't be troubling. Suits against CEI and the National Review on climate issues trying to shut down their skepticism, whether its justified or not, is a separate matter, seems like a quite vigorous public debate by what I think we'd all agree are sort of public combatants in that debate.
So do we think that the policy justifications for New York Times, at least as to serious public debate -- let's put aside the baseball player and the celebrity for a moment. Let's talk about public policy debate participants or officials. Do we think those justifications have shifted or somehow skewed in a different direction that warrants a policy answer?
Either one of you or both, obviously, in whatever order you like.
Prof. Glenn Reynolds: Well, I used to write a column for MSNBC. And when I started writing for them, the first thing they said was, basically, you can write about anything you want, but if you're going to write about Scientology, you have to tell us first and let us run it by legal. And the reason for this is not that Scientology was going to win. You know, I'm a law professor. I'm pretty good at not actually libeling people and -- well, I won't go into any more about Scientology.
But the fact is, the saying is "the process is the punishment." If people are willing to spend a lot of money pursuing even an ultimately unsuccessful lawsuit, they can inflict a substantial amount of pain. And while the Sullivan doctrine makes it easier to get a case like that dismissed, it's still, for people who have a lot of money and a lot of lawyers, they can inflict enough pain to make people just not want to talk about them.
Floyd Abrams: No, I agree. And, indeed, I represented Time Magazine in an enormous Scientology case which spread over years and which we finally won on summary judgment. And maybe I had mixed motives when I talk about the amount of legal fees that poor Time had to cough up through those years, but I think that just comes with the territory.
To avoid that, we would need, essentially, to end libel law. We'd have to take even more rigid protective steps which I don't think anyone is calling for. But the risks in this area remain very real, and on the print press level, and apart from all the help Donald Trump did in selling everything to do with newspapers, broadcasting, on-line, everything.
But back in the real world again now, newspapers are going out of business all over the country -- magazines, I mean. And what is available is more and more free. This is a great thing about the internet, but one enormous impact of the internet is the destruction of the press as we knew it, which, if all we were talking about was policy here, I think might lead us to say let's not take away one of the barriers that protects the press from libel suits from individuals who, by their nature, tend to need protection least.
Eric Jaffe: Well, that actually triggers another question from one of our listeners that was sent in by e-mail so I can't give proper credit for it. But they point out that so much of defamation these days may happen on social media rather than in the formal or semi-formal press. It could happen on Facebook. It could happen on Twitter. And it may not necessarily be from large organizations, yet some of the impact of New York Times on such instances could be big, could be small, depending on the person being defamed.
What do you guys think of that and whether there should be different rules for small, bit players versus big institutional players?
Floyd Abrams: I just start out with the realization that the greatest protection on the internet is Section 230 of the Communications Decency Act, which basically means Facebook is not responsible for everything that appears on Facebook. The New York Times is. Our press is. But if we're going to continue to have a media of communication that have two to three billion subscribers, or participants, really, it's going to be very hard to walk away from the current, at least in my view, to walk away from the current level of protection, which they have.
But both President Trump and President Biden, before he was president, spoke very critically of Section 230 and sounded as if they might be in favor of significantly less protection, without which, and here I think that you can just speak authoritatively, there will be less speech because, while Facebook, enormous, powerful as they are, cannot, cannot take, and would not take the risks of more or less unlimited speech subject to whatever standards they apply if they could be sued every time something defamatory appeared.
Prof. Glenn Reynolds: Yeah. I'll just add, first of all, they're strange bedfellows here because it's not only Presidents Trump and Biden, but in another separate opinion, Justice Thomas has suggested, not that Section 230 should be repealed, but that the courts had vastly overread the extent of protection that Section 230 provides for information providers.
And I would say a decision to repeal Section 230 is fundamentally a decision to get rid of Facebook and Twitter and other social media because they simply could not exist. And not only because of the protections from libel, but probably more significantly, because of the protection against charges of intellectual property infringement and things like that. It's just not possible to operate as a -- using user-generated content on any kind of a scale without Section 230. So it's a death blow if it happens.
I will point out that the users are still, at least in theory, subject to libel claims. And I am honestly surprised some lawyers haven't found people who have been targeted by social media mobs and started suing the people behind it because while they often have sort of nuisance level anonymity because they use a handle or something, you could always subpoena the provider to find out who they really are if you care enough.
And even a small amount of that kind of litigation would, I think, actually tamp down a lot of the nasty cancel culture activity of social media because, again, the process is the punishment. Just being sued is enormously frightening and upsetting to most ordinary people, and it's certainly more expensive than most people are willing to deal with, and they are not protected by Section 230.
Eric Jaffe: Now, speaking of the process is the punishment, as you both have sort of suggested, where do you go from here? A lot of states have instituted anti-slap litigation in precisely the way it is designed to deal with the process as punishment argument and put more risk on the person bringing the libel suits. What do you guys think of that in the context of a very hard to prove libel claim?
Prof. Glenn Reynolds: Actually, listening to Floyd talk earlier, I was actually thinking if we had the English rule of libel, we certainly should also have the English rule on fees and costs where the losing party has to pay. And if the losing party has to pay, that doesn't keep Saudi billionaires from going after you, but it definitely makes people less likely to file overtly meritless suits simply in order to put you through pain and expense.
Floyd Abrams: And that is what anti-slap legislation seeks to do and often has done. And it's led lawsuits to be filed in different states because they don't have, or they do have anti-slap. New York State suddenly -- New York State courts, because we have an anti-slap statute, are a new forum for plaintiffs in libel cases because we have a brand new, spanking new, untested law, which is very, very good for plaintiffs in these cases.
Eric Jaffe: I'm going to start sort of feeding in more of the questions from the audience now, though before I get to the next one, I'd like to just address something Justice Silberman talked about. Does it matter to either of you if the institutional press ultimately is viewed as having a political bias one way or the other? Obviously, this was the objection back in the New York Times v. Sullivan, that the press was biased against the southern states who were anti-civil rights. That at the time was a political bias of sorts, and I suppose today's complaint that the press doesn't like Republicans is not meaningfully different than that. Does it matter?
Floyd Abrams: Well, it shouldn't matter, in my view, in terms of libel law. It's a political—a non-pejorative use of the word—it's a political issue to talk about or a journalistic issue to talk about. But I think Judge Silberman was really off base in basing his support, really, for having another look and more at New York Times v. Sullivan on his views about the New York Times and the Washington Post and the news pages, he said, of the Wall Street Journal being—I'm trying to think of the word he used—but the speakers' representatives of the Democratic party. That's essentially what he said. I can't think of a worse reason to argue that there should be more or less protection of freedom of the press.
Eric Jaffe: Professor Reynolds?
Prof. Glenn Reynolds: So Silberman's dissent had three parts. One was a rather technical argument that the other two judges on the panel were misapplying the existing law of actual malice. The second was a call to overturn Sullivan. And the third was—and this is the part that got a lot of attention, predictably enough—was essentially an argument that the marketplace of ideas approach isn't working here because the media are essentially a leftist monoculture, and you can't have a marketplace of ideas when everybody is selling the same product.
And I think -- well, the nice thing about being a judge, especially when you write a separate opinion, is that you don't have any editors. The bad thing about it is you don't have any editors. And certainly had I been advising Judge Silberman, I would have said, "Why don't we cut that down to a couple of paragraphs and make that point and move on?" But judges write as if they were paid by the word sometimes.
I do think he's got a point in that if you look back even at the time of Sullivan, most towns had two papers and it was, not always but frequently, one Republican and one Democratic paper. Now, most towns have at most one paper, which is inevitably left leaning, almost without exception, and nowadays, at any rate, typically is mostly full of recycled content from whatever its national newspaper network is, like Gannett or something like that.
So the marketplace of ideas in the sense of the institutional press, I think, is genuinely a lot less diverse, opinion wise, than it was even back then when Allen Drury was writing his novels like Advise & Consent suggesting that the press was largely interchangeable. He was quoting the Times and the Post and stuff taking some of his little asides to illustrate there is no difference between the Washington Post and the New York Times.
Floyd Abrams: But that sort of thing comes and goes. I have to, what should I say, concede, acknowledge, admit that I'm old enough to remember when Adlai Stevenson ran against President Eisenhower in 1956 and talked incessantly about the one-party press because all of the large newspaper chains in the country were pro-Republican. And the New York Times, remember, endorsed Eisenhower. I mean, it was a very, very different world. My only point is that those things come and go. If there is a market—and there is, look at Fox News—for more conservative publications, broadcasters, on-line entities, and the like, they will be there.
Eric Jaffe: I find it interesting, actually, that there is a debate about institutional monopolization, if you will, of attention. It calls to mind old cases like Red Lion and Miami Herald v. Tornillo where there is some implicit need for fairness in the marketplace of ideas as judged by Judge Silberman or Congress or whoever it might be. And I find it just an interesting position for First Amendment folks to take, to think that that somehow improves free speech as opposed to hurts it, given -- particularly conservative First Amendment folks who, over the years have been very critical of Red Lion, for example.
Prof. Glenn Reynolds: I think I would just say that the only argument that you can really defend this with is that the social media companies in particular are creatures of regulation. They exist only because of Section 230. Section 230 is essentially a colossal subsidy for those industries by freeing them from legal duties they would otherwise face as any other industry. So I think people feel, as a result, that they have some right to have something to say about it.
They're not public utilities exactly, but they are, as I say, essentially functioning because of a massive statutory subsidy. If the government had actually built all the wires and paid for all the electricity that these companies were using, people would feel that they have a right to have something to say about how they do business. And the government is, in effect, subsidizing to an even greater degree than that by freeing them up from liability that other businesses would face.
So I don't think there's any way around that. I think as long as that's the case, people are going to feel entitled to have a say, especially about companies that are so preeningly smug and sanctimonious all the time, which is a problem of the press as a whole, frankly. And I say this as an academic, and we know about how to be preening and smug and sanctimonious, believe me. But the social media companies, too, are just extremely smug and sanctimonious in ways that are calculated to offend and do.
Floyd Abrams: True, but sanctimony is not an exception to the First Amendment. I quite agree. One of the most interesting things I think we all ought to look for, because it's any day now, is the ruling of the Facebook internal supreme court, which is going to issue an opinion very soon—we have every reason to think that—about whether the lifetime ban on President Trump from Facebook will remain in effect. And whatever they decide, it might as well be criticized, whatever they decide.
But it will be interesting to see if the notion of these enormous entities, the elephantine entities trying to get some more credibility from the more general public by bringing in outsiders–these people are, at least on Facebook–and saying, at least, we're going to do what they say. It'll just be important, not just about Trump, important about the next step. Suppose they say, "Yes. A lifetime sentence of silence on Facebook can't be allowed." What consequence for other entities? Very interesting stuff. Very important.
Eric Jaffe: Another question from the audience. This one from Connor Craft (sp). He talks about many, many private libelers, let's say on the internet or on Facebook, but the individuals are largely judgment proof, and so going after them has potentially minimal impact other than sort of the interorum affect. But he wonders whether government should take a bigger role, and whether you think government can take a bigger role in policing libel against libelers who are otherwise largely immune from civil consequences.
Prof. Glenn Reynolds: Well we used to have a doctrine of criminal libel in which the state pretty much did that sort of thing. But Floyd could probably speak much more intelligently on that than I can.
Floyd Abrams: I don't think it's a solvable problem. Maybe some outside organizations, and I mean seriously funded outside organizations, will take out the cudgels. And ACLU like—what shall I say—plaintiff's bar for people who need it and deserve it and the like. I'm talking myself out of going back to my First Amendment home today. But something like that is conceivable to me, but I really don't think anything else.
I really don't think we want the government involved in this. It really is not just a threat, but the reality of government involvement and what people are allowed to say and what not is just unacceptable with my notion, but well beyond me of what the First Amendment must mean.
Prof. Glenn Reynolds: I agree.
Eric Jaffe: We have a couple more minutes, and I'd like to give both of our panelists a chance to make any closing thoughts they have on the overall debate on New York Times v. Sullivan or of the two opinions criticizing it. So we started with Professor Reynolds. Perhaps we'll start now with Mr. Abrams. If you have any last comments you want to make, something we skipped over, or …
Floyd Abrams: The last thing I'd say is that New York Times v. Sullivan is the single greatest First Amendment opinion in American history, both in terms of its view of the First Amendment, the power of its anti-censorial view and the need to protect speakers against government involvement. And it is something I think of which we should be proud as a people, even as we see some of the inevitable consequences of more freedom and fewer sanctions.
Eric Jaffe: Professor Reynolds?
Prof. Glenn Reynolds: Well, first of all have to say New York Times v. Sullivan has been very, very good to me. My blog is about to hit its 20th anniversary, and I am sure I -- no one has ever actually tried to sue me for libel, but that, too, is probably a benefit of New York Times v. Sullivan on some level. As somebody who writes newspaper columns and blogs and everything, I have benefitted, no doubt, greatly from that and I am happy with that.
I will say that, first of all, we are fortunate to have defenders of free speech like Floyd Abrams around, and I am concerned that we will get academics -- under about 40, it's surprising how little support for traditional free speech and First Amendment stuff you find. I was actually having this discussion with some other law professors about that recently, and that's rather troubling.
The biggest threat to free speech right now, I would say, however, is not exactly government censorship in the classic sense. It's actually mobs facilitated by social media who go after people's jobs and families and other things without any accountability. And I think that right now if somebody's afraid of saying something, they're usually not so much afraid that the government is going to come down on them as they are afraid of being mobbed. And then once the mob comes after you, what you find is that people who run most of our institutions like universities or big corporations or whatever are kind of spineless cowards who are quite willing to throw you under the bus in the hopes of making the problem go away.
That is exactly the opposite of what they should do. If we had a call for it in which we didn't respond to demands to fire somebody by random people on the internet, there would be a lot less of it. But because it works, there's a lot more of it. And I'm not sure how to organize some kind of a cartel where people wouldn't fire people just because a bunch of people on Twitter were screaming for them to. But I think it would be -- we would be better off if we did. Maybe the only way to put some steel in people's spines is for them to face some consequences for being cowards, either in the form of litigation or in the form of countersuing, or I don't know what.
Eric Jaffe: Well, if there is no more from either of our panelists, I thank you very much for participating. I think we will be debating the calls to modify or repeal New York Times v. Sullivan for quite a number of years now. So perhaps we'll do a reprise of this when the next big Supreme Court opinion comes down talking about it. So thank you, again. And thank you to the audience for joining us, and thank you, Evelyn, and The Federalist Society for sponsoring this.
Evelyn Hildebrand: Thank you. And on behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for participating and for sending in your questions. We welcome listener feedback by e-mail at [email protected].
As always, keep an eye on our website and your e-mails for announcements about upcoming Teleforum calls and virtual events. And we have two Teleforums coming up this afternoon. The first one at 2:30 p.m. Eastern with Mr. Eric Jaffe discussing the oral argument in Americans for Prosperity v. Becerra, which took place this morning. And then there's a second one at 4:00 p.m. Eastern on the Jones v. Mississippi decision with Mr. Mark Levin.
Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.