The Supreme Court declined on Tuesday to revisit the landmark First Amendment decision in New York Times v. Sullivan, rebuffing a request to take another look at decades-old precedent that created a higher bar for public figures to claim libel in civil suits.
The media world has for years relied on the unanimous decision in the 1964 case to fend off costly defamation lawsuits brought by public figures. The ruling established the requirement that public figures show “actual malice” before they can succeed in a libel dispute.
Despite being a mainstay in US media law, the Sullivan decision has increasingly come under fire by conservatives both inside and outside the court, including Justice Clarence Thomas, who said on Tuesday that he still wanted to revisit Sullivan at some point.
“In an appropriate case, however, we should reconsider New York Times and our other decisions displacing state defamation law,” Thomas wrote in a brief concurrence to the court’s decision not to take up the case. He said that the case, Don Blankenship v. NBC Universal, LLC, was a poor vehicle to reconsider Sullivan.
Just a few months ago, the conservative justice attacked the ruling in Sullivan in a fiery dissent in which he called it “flawed.” Thomas issued other public critiques of Sullivan in recent years, including in 2019, when he wrote that the ruling and “the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”
The case at hand concerns Don Blankenship, a former coal baron who was convicted of a federal conspiracy offense related to a deadly 2010 explosion at a mine he ran, in what was one of the worst US mine disasters in decades. His sentence of a year in prison was one day less than a felony sentence.
“Blankenship himself admits this was a highly unusual sentence for a misdemeanor offense; he notes that he was the only inmate at his prison who was not serving a sentence for a felony conviction,” according to a lower-court opinion in the case.
During his unsuccessful 2018 US Senate campaign in West Virginia, a number of media organizations erroneously reported that he was a convicted felon, even though his conspiracy offense was classified as a misdemeanor.
Blankenship sued a slew of news outlets for the error, alleging defamation and false light invasion of privacy. Lower courts ruled against him, finding that the outlets did not make the statements with actual malice, the standard required by Sullivan.
Attorneys for Blankenship told the justices in court papers that the “damage was irreparable” since no felon has ever been elected to the Senate, and urged them to overturn the Sullivan decision.
“The actual malice standard poses a clear and present danger to our democracy,” they wrote. “New York Times Co. v. Sullivan and its progeny grant the press a license to publish defamatory falsehoods that misinform voters, manipulate elections, intensify polarization, and incite unrest.”
Attorneys for the media outlets urged the justices not to take up the case, arguing that it’s “as poor a vehicle as one could imagine to consider” questions related to Sullivan’s holding because, they said, the reporting mistakes were honest ones.
“There is good reason why the actual malice standard of New York Times has been embraced for so long and so often,” the media organizations told the justices. “At its essence, the standard protects ‘erroneous statements honestly made.’ While it permits recovery for falsehoods uttered with knowledge of falsity or with reckless disregard for the truth, it provides the ‘breathing space’ required for ‘free debate.’ A free people engaged in self-government deserves no less.”
Just last year the court declined to revisit Sullivan in a case brought by a not-for-profit Christian ministry against the Southern Poverty Law Center.
At the time, Thomas dissented from the court’s refusal to take up the case.
“I would grant certiorari in this case to revisit the ‘actual malice’ standard,” he wrote. “This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’”
In 2021, conservative Justice Neil Gorsuch also questioned the decision in Sullivan, writing in a dissent when the court decided not to take up a defamation case that the 1964 ruling should be revisited in part because it “has come to leave far more people without redress than anyone could have predicted.”
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