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NYT Legal Loss Underscores SCOTUS’s Need To Fix Defamation Doctrine

The legal reasoning behind New York Times v. Sullivan is as thin and weak as the paper it’s printed on.

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All winning streaks must come to an end. The New York Times brought an over 50-year win streak of defending defamation suits into a federal courtroom in Alabama. The underdog plaintiff was former University of Alabama basketball player Kai Spears. The Times published an article in 2023 that incorrectly said Spears was in a car with a teammate at the scene of a fatal shooting. Spears sued for libel over these “untrue statements linking him to a criminal event,” and prevailed on Thursday. A jury awarded more than $9 million in damages. 

As The Washington Post put it in its coverage of the verdict, “the New York Times is synonymous with the standard for proving defamation,” referring to the 1964 Supreme Court case New York Times v. Sullivan. The standard is the “actual malice” doctrine, which has become a de facto liability shield for media corporations. 

In No Liberty to Libel: The Originalist Case Against New York Times v. Sullivan, University of Nebraska Omaha political science professor Carson Holloway shows how the Sullivan ruling created a series of two-tier systems of justice. One elevates the press by giving them an immunity no other profession has. 

“Journalism [is] a privileged profession” thanks to Sullivan, Holloway writes. “[J]ournalists, unlike all other professionals, are sheltered from the legal consequences that ordinarily accompany negligence.” 

But it’s actually worse than that. The “actual malice” standard incentivizes negligence. “Actual malice” requires plaintiffs to prove the media knew the defamatory statement was false or that the media published it with “reckless disregard” for its veracity. Law professor David Logan identifies “the safest legal route” for the media: “publishing without verification. … [D]o little or no fact-checking, confident that the more slipshod their investigation, the less likely they are to be guilty of ‘actual malice.’” 

“[U]nder an ‘actual malice’ regime,” Logan concludes, “ignorance is bliss.”

Justice Neil Gorsuch put his stamp on this argument in his dissent in........

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