Libel and the First Amendment (Update)

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The structure of the Supreme Court's libel doctrine has changed very little since the mid-1980s—remarkably so given the breadth and depth of dissatisfaction that this doctrine has engendered. While new york times v. sullivan (1964) deservedly remains an icon of modern first amendment law, Sullivan 's progeny—an extensive and highly complex body of cases constitutionalizing almost every aspect of the law of defamation—has come under attack for failing to protect the legitimate interests of either defamed individuals or the press and other speakers. Yet the Court's libel law doctrine by now has acquired, seemingly despite itself, the virtue of stability—an achievement itself likely to prevent any ambitious reform proposals from making headway.

Sullivan derives its importance from two essentially independent features. First, the decision stands as the Court's strongest statement of general First Amendment principle—that the "central meaning" of the First Amendment, revealed in the controversy over the alien and sedition acts of 1798, is to protect against all infringements the right of a sovereign people to criticize government policy and public officials. Second, the decision began the process by which the Court brought the federal Constitution to bear on the state common law of defamation. In the course of this doctrinal development, the Court provided some level of constitutional protection to libelous speech extending far beyond attacks on official conduct.

The Court put in place the main building blocks of its libel law doctrine in the two decades following Sullivan. First, in Curtis Publishing Company v. Butts (1967), the Court held that the "actual malice" standard adopted in Sullivan for libel cases brought by public officials also applied in cases brought by public figures. The latter, just like the former, would have to show that the speaker had acted with knowledge of a statement's falsity or reckless disregard as to its truth. Although the Court tried on several occasions to put some limits on the "public figure" category, lower courts have interpreted it expansively, to apply both to celebrities of all kinds and to any individual involved, voluntarily or not, in any sort of public controversy. Next, in gertz v. robert welch, inc. (1974), the Court held that private figures must prove negligence (itself a heightened standard compared to the common law rule of strict liability) to recover compensatory damages and actual malice to obtain presumed or punitive damages. Because of the difficulty of proving actual injury to reputation, as well as the expense of bringing libel litigation, many private figures subject to Gertz discover that their suits are tenable only with evidence of actual malice. Finally, the Court held in dun & bradstreet v. greenmoss builders, inc. (1985) that in the small category of cases in which a private figure is defamed on "a matter of purely private concern" (like the faulty credit rating in the case), the actual malice standard does not apply to any part of the litigation. The upshot of the system is that the actual malice standard today governs most libel cases, although the occasional plaintiff manages to escape its strict proof requirements.

sinceDun & Bradstreet, the Court has tinkered with the actual malice standard, while also elaborating on the lesser included requirement of proving a defamatory statement's falsity. In Anderson v. Liberty Lobby (1986), the Court held that a public figure can defeat summary judgment only by showing with "convincing clarity" sufficient evidence of actual malice to create a genuine issue of material fact. And in Harte-Hanks Communications v. Connaughton (1989), the Court made clear that the actual malice standard requires proof of a libel defendant's actual state of mind, so that purposeful avoidance of truth, but not a gross failure to comply with professional standards, can establish the requisite liability. Further increasing the difficulty of bringing a libel suit, the Court held in Philadelphia Newspapers, Inc. v. Hepps (1986) that not only public but also private figures bear the burden of proving a defamatory statement's falsity, at least if the speech is of public concern and the defendant is a member of the media. With respect to the nature of this proof, masson v. new yorker magazine, inc. (1991) adopted as a constitutional requirement the common law rule that the falsity at issue must be material.

One problem with this body of law is sheer complexity. The Court now categorizes libel suits along multiple dimensions. The primary distinction, established in Gertz, relates to the status (public or private) of the plaintiff. A secondary but still important distinction relates to the nature (public or private) of the speech. This inquiry functions in two ways: by entering into the initial determination whether a plaintiff is a public or private figure (because one way to become a public figure is to participate in a "public controversy") and then, as held in Dun & Bradstreet, by dividing the private-figure category into two. Finally, a possible distinction lurks between media and nonmedia defendants; in Hepps and several other cases, the Court explicitly reserved the question whether this distinction too should have constitutional relevance. The intricate, even convoluted nature of this categorical scheme, governing as it does every important aspect of libel litigation, ill comports with the Court's usual concern for certainty and predictability in matters affecting freedom of speech.

A related though more comprehensive problem is that the Court's libel doctrine often manages to frustrate the interests of both sides in libel cases—and in doing so, to frustrate as well the interests of the public. Application of the Sullivan rule usually deprives falsely defamed individuals of the ability to obtain monetary damages or any other effective remedy for reputational injury, however grievous. By the same token, application of the rule may prevent the public from ever learning of the falsity of widely disseminated libelous statements. The justification for accepting these consequences is that the actual malice standard promotes what the Sullivan Court called "uninhibited, robust, and wide-open" debate by removing the press's fear of liability for inevitable errors. Whether this trade-off makes sense may depend on whether the speech at issue lies at the core of First Amendment protection, as was true in Sullivan, or nearer to its periphery, as in the many libel cases involving celebrity gossip. But even if this issue is set to one side, the question remains whether the trade-off is in fact a trade-off—whether, that is, the public gets the uninhibited debate promised for the price paid. With regard to this question, the press routinely claims, and probably with good reason, that although the actual malice regime reduces the number of libel judgments, it greatly increases the size of judgments and, even more important, the costs of defense. Current libel law thus may thwart the correction and remedy of false defamatory statements without in any way lessening the self-censorship that the Sullivan Court acted to prevent.

This arguably miserable accommodation of competing interests spawned in the 1980s a kind of cottage industry in proposals for reforming libel law. Most of these proposals relied on reduced damage awards rather than heightened standards of liability to strike the appropriate balance in the area. One proposal would have relieved the libel plaintiff of any burden of proving fault, but offered as a remedy only a declaratory judgment of the defamatory statement's falsity. Other variants would have allowed the plaintiff to recover modest actual damages or given the plaintiff a choice between bringing a no-money, no-fault suit and trying to recover unlimited damages under the actual malice standard. The essential idea of this reform movement was to create a low-cost mechanism for correcting defamatory error, which would protect better than the Sullivan regime both reputational and free speech interests.

Even as these proposals multiplied, however, the Court's libel law doctrine began to acquire a surprising air of permanence. The Court took fewer and fewer libel cases in the 1990s, and the few decisions it did issue had little significance. Perhaps the Court believed that its accommodation of interests was superior to any of the alternatives. Or perhaps the Court thought that the need for stability counseled against further changes, even if a different approach might have been better in the first instance. Regardless of the cause, libel doctrine at the turn of the century seems settled in a way that few commentators would have predicted in the mid-1980s. And this very rootedness, with its attendant virtues, makes the prospects for the significant reforms urged at that time ever more unlikely.

Elena Kagan


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