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"Issue: Whether an individual may sue a government official in his individual capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act of 2000."
I had a nice conversation after class yesterday about Justice Rehnquist's dissent concerning the reach of the no-compelled-speech doctrine. Here is what Rehnquist argued:
"The logic of the Court's opinion leads to startling, and I believe totally unacceptable, results. For example, the mottoes "In God We Trust" and "E Pluribus Unum" appear on the coin and currency of the United States. I cannot imagine that the statutes, see 18 U.S.C. §§ 331 and 333, proscribing defacement of United States currency impinge upon the First Amendment rights of an atheist. The fact that an atheist carries and uses United States currency does not, in any meaningful sense, convey any affirmation of belief on his part in the motto "In God We Trust." Similarly, there is no affirmation of belief involved in the display of state license tags upon the private automobiles involved here."
What do you think? Does the printing of In God We Trust on our money make mobile billboards of us all?
New York Times Co. v. Sullivan
The case arose out of the backdrop of the civil rights movement. The New York Times published an editorial advertisement in 1960 titled "Heed Their Rising Voices" by the Committee to Defend Martin Luther King. The full-page ad detailed abuses suffered by Southern black students at the hands of the police, particularly the police in Montgomery, Ala.Two paragraphs in the advertisement contained factual errors. For example, the third paragraph read:
“In Montgomery, Alabama, after students sang 'My Country, Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and teargas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.”The paragraph contained undeniable errors. Nine students were expelled for demanding service at a lunch counter in the Montgomery County Courthouse, not for singing 'My Country, 'Tis of Thee' on the state Capitol steps. The police never padlocked the campus-dining hall. The police did not "ring" the college campus. In another paragraph, the ad stated that the police had arrested Dr. Martin Luther King Jr. seven times. King had been arrested four times.
Even though he was not mentioned by name in the article, L.B. Sullivan, the city commissioner in charge of the police department, sued The New York Times and four black clergymen who were listed as the officers of the Committee to Defend Martin Luther King.
Sullivan demanded a retraction from the Times, which it refused. The paper did print a retraction for Alabama Gov. John Patterson. After not receiving a retraction, Sullivan then sued the newspaper and the four clergymen for defamation in Alabama state court.
The trial judge submitted the case to the jury, charging them that the comments were "libelous per se" and not privileged. The judge instructed the jury that falsity and malice are presumed. He also said that the newspaper and the individual defendants could be held liable if the jury determined they had published the statements and that the statements were "of and concerning" Sullivan.
The jury awarded Sullivan $500,000. After this award was upheld by the Alabama appellate courts, The New York Times appealed to the U.S. Supreme Court. The high court reversed, finding that the "law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct."
For the first time, the Supreme Court ruled that "libel can claim no talismanic immunity from constitutional limitations," but must "be measured by standards that satisfy the First Amendment." In oft-cited language, the high court wrote:
“Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”The Court reasoned that "erroneous statement is inevitable in free debate" and that punishing critics of public officials for any factual errors would chill speech about matters of public interest. The high court established a rule for defamation cases that dominates modern-day American libel law. The Court wrote:
“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”The Court required a public official defamation plaintiff to show evidence of actual malice or reckless disregard for the truth by "convincing clarity" or clear and convincing evidence. This threshold has meant that many defamation defendants have stopped defamation suits before they go to a jury.
Here is an excerpt:
Justice Clarence Thomas renewed his call on Tuesday for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it more difficult for public officials to prevail in libel suits.
Justice Thomas wrote that the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it. He added, quoting an earlier opinion, that it “comes at a heavy cost, allowing media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’”
...
Justice Thomas has been a longtime critic of the actual malice standard, and Tuesday’s opinion returned to earlier themes, quoting earlier opinions. The Sullivan ruling and ones elaborating on it, he wrote, “were policy-driven decisions masquerading as constitutional law” with “no relation to the text, history or structure of the Constitution.”
In 2021, Justice Neil M. Gorsuch added his voice to the criticism of the decision. He wrote that much had changed since 1964, suggesting that the actual malice doctrine might have made more sense when there were fewer and more reliable sources of news, dominated by outlets “employing legions of investigative reporters, editors and fact-checkers.”
I hate to disagree with two of my favorite brothers, but I believe criticism of public officials lies at the core of the freedom of speech and of the press that is protected against any law abridging these freedoms. History is a means of finding the original meaning of text, but when the text is clear (no law means no law) it trumps history. Sometimes history only proves that public officials do not like to be governed by constitutional limits on their powers.Justice Thomas’s latest opinion came in a case brought by Don Blankenship, a former coal company executive and Senate candidate in West Virginia. He sued several news organizations for calling him a felon after he was convicted of conspiracy, a misdemeanor, in connection with the aftermath of a mine explosion.
The U.S. Court of Appeals for the Fourth Circuit ruled against him, saying he had not cleared the high bar required by the Sullivan decision.3
“Some of the statements may have been the product of carelessness and substandard journalistic methods,” Judge Roger L. Gregory wrote for a unanimous three-judge panel. “But at the end of the day, the record does not contain evidence that the commentators and journalists responsible for the statements were anything more than confused about how to describe a person who served a year in prison for a federal offense.”
The Supreme Court rejected Mr. Blankenship’s request that it review that decision, without giving reasons. Justice Thomas concurred, saying the case was a poor vehicle for deciding the fate of Sullivan because West Virginia law also required Mr. Blankenship to prove actual malice to prevail.
“In an appropriate case, however,” Justice Thomas wrote, “we should reconsider New York Times and our other decisions displacing state defamation law.”
Before we get to Sullivan, let me pose a hypothetical.
Suppose the New York Times accurately reports that Senator X has taken bribes from several defense contractors. As a result of this story, Senator X's career and personal reputation are destroyed.
Senator X, who admits the truth of the story, sues the newspaper, alleging that it published the story knowing full well that it would destroy him. The newspaper moves to dismiss on the ground that its speech was protected by the First Amendment. What ruling? Why?
Now suppose the story was false. Same ruling? Why?Is there any value in false speech?
[FN 19 of the full text opinion in Sullivan quotes John Stuart Mill: “Even a false statement may be deemed to make a valuable contribution to public debate since it brings about the clearer perception and livelier impression of truth, produced by its collision with error.”] See also p. 1319 (Sullivan: “[N]either factual error nor defamatory content suffices to remove the constitutional shield.”)
What do you think of Mill’s perception? Is it applicable when the falsehood relates to the character of an individual?
Sullivan is an interesting case, because it is set in explosive times – Montgomery, Alabama in 1964.
Supporters of the status quo desperately wanted to silence advocates of civil rights and racial equality.
Was Sullivan’s lawsuit really a simple civil action for libel, or is this really a seditious libel case?
[ seditious libel: "a criminal offense to publish or otherwise make statements intended to criticize or provoke dissatisfaction with the government. Truth was not a defense and, in fact, made the offense worse."]
In one sense, it may be unfortunate that the Court used this case as a vehicle for making law for all defamation actions. Because this case was not about Sullivan’s reputation being destroyed by false statements of fact, it is about the suppression of a political movement.
What is the rule of Sullivan?
Page 1319:
The constitution “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Other cases establish that actual malice must be proven by “clear and convincing” evidence.
The key element here is the scienter requirement – negligence will not suffice – the plaintiff must prove, by clear and convincing evidence (i.e. not by a mere preponderance), that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not. What does that mean?
[See Nowak at p. 1038:
“The standard seems to be one of the knowing lie – at the time of the publication defendant must have known that the statement was false, or must have had serious doubts as to the statement’s truth and have published it despite these doubts.”] [Id. at 1039: “Reckless disregard” means that the defendant has a “high degree of awareness” of probable falsity.] Pl. must prove that the defamatory statement was in fact false and that it was made with reckless disregard.
Is Sullivan over-protective of free speech? Why should negligent false and defamatory statements be protected?
“It has been suggested that the Court undervalued the individual’s interest in reputation; failed to recognize that in measuring chilling effect one must consider the deterrence of false as well as true statements; and failed to recognize that its rule would drive capable people out of politics, thus undermining the very goals it sought to achieve. Along similar lines, the Court might have retained strict liability but limited the amount and nature of recoverable damages.” Stone T.M. at 104.
Does anyone think that Sullivan is under-protective of free speech? Why?
The “central meaning” of the First Amendment (p. 1319) – “the freedom to criticize government is essential to the existence of a free society.”
Who is a public official for purpose of Sullivan?
Am I a public official?
Dean Moberly? A public school teacher? Police officer?
The janitor? A secretary or copy clerk?
[See Nowak at 1041 (discussing Rosenblatt v. Baer, 383 U.S. 75 (discharged supervisor of a county-owned ski resort is a public official) (government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs): “Thus, while persons occupying low level technical positions might not be included in this category, any government employee with discretionary power in matters of public interest should be considered a public official.”]
[Nowak at 1095 - suggests a public school teacher is a “public official” for this purpose]
Suppose members of the news media (MSNBC perhaps) continually called a candidate for the Presidency "Hitler, literally Hitler." If the victim of these many, clearly untrue, libelous statements wins a large judgment in a libel action, are these statements protected by the First Amendment under New York Times? Should they be protected?
