Reconsidering Times v. Sullivan – WSJ

Senior Judge Laurence Silberman of the D.C. Circuit Court of Appeals knows how to court media outrage. His gun-control opinion became the template for the Supreme Court’s landmark Heller decision that the Second Amendment is an individual right not limited to militias. Now he’s caused a stir with a dissent suggesting that the landmark libel ruling, New York Times v. Sullivan, should be reconsidered.


Judge Silberman’s partial dissent comes in a case in which two former Liberian officials sued the authors of a report suggesting they took bribes (Tah v. Global Witness). The majority opinion upheld a lower-court decision dismissing the case on the Times v. Sullivan logic that the report was not written with “actual malice,” defined as a reckless disregard for the truth. That’s the standard the High Court created in 1964 that makes defamation cases brought by public figures against the press nearly impossible to win—even if the reported facts turn out to be false.

Judge Silberman analyzes the facts and shreds the majority argument on the malice point even under the current Times v. Sulllivan standard. But more provocative is that he goes on to say that the Supreme Court created its actual-malice standard out of whole cloth, with no basis in the Constitution, overturning libel standards that had evolved over centuries in common law.

The judge notes that the Times ruling occurred in unique historical circumstances—to wit, the struggle for civil rights when Southern politicians used defamation law to stifle reporting on and criticism of Jim Crow. But Judge Silberman, whose former clerks include Justice Amy Coney Barrett, says the times have changed and the “actual malice” standard has effectively given the press a status above the Constitution that harms democracy.

As journalists we have an interest in preserving Times v. Sullivan. We correct mistakes. But we’ve had to defend against baseless defamation suits that were eventually dismissed, and the cost isn’t trivial. The Wall Street Journal has resources to defend its writers, but threats against small publications could have a chilling effect on robust journalism. (The British rule that the “loser pays” for the opponent’s legal costs would help here.)

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