The Supreme Court and the Future of New York Times v. Sullivan: A Landmark Decision Under Scrutiny
The legal landscape of free speech in the United States is bracing for a potential seismic shift, as the landmark Supreme Court decision New York Times v. Sullivan faces growing scrutiny. Since 2019, Justice Clarence Thomas has repeatedly called for the court to reconsider this foundational First Amendment ruling, which has made it significantly harder for public officials to win libel suits. The decision, handed down in 1964, established that public officials must prove "actual malice" to prevail in defamation cases, ensuring a high bar for such claims. The "actual malice" standard requires plaintiffs to show that the publisher of a false statement either knew it was false or acted with reckless disregard for the truth. This standard has been a cornerstone of First Amendment jurisprudence, protecting the press and public discourse from frivolous lawsuits.
Justice Thomas and Gorsuch’s Challenge to Sullivan
The campaign to overturn Sullivan gained momentum in 2021 when Justice Neil Gorsuch joined Justice Thomas in criticizing the decision. Gorsuch described Sullivan as an "ironclad subsidy for the publication of falsehoods," suggesting that the ruling had gone too far in shielding publishers from accountability. These critiques align with former President Donald Trump’s long-standing political goal of "opening up our libel laws," which he often invoked during his presidency as a means of punishing media outlets he accused of spreading falsehoods about him. However, in early 2024, the Supreme Court seemed to signal that it is not yet ready to embrace Trump’s vision—or Thomas and Gorsuch’s calls to overturn Sullivan.
A Subtle Signal from the Court
In a routine case last month, Justice Brett Kavanaugh unexpectedly cited Sullivan with apparent approval, highlighting its requirement that public officials prove their libel claims with "clear and convincing evidence." While Kavanaugh’s reference was made in passing to distinguish the standard of proof in most civil cases from the heightened standard imposed by Sullivan, the mere invocation of the decision was notable. Courts typically do not cite precedents they wish to overturn, and Kavanaugh’s acknowledgment of Sullivan‘s constitutional underpinnings suggested a quiet endorsement of its core principles. This subtle nod to Sullivan seemed to counter the growing chorus of criticism from Thomas and Gorsuch, signaling that the court is not yet prepared to abandon the ruling.
The Bigger Picture: Debates Over Judicial Activism and the First Amendment
The tension over Sullivan reflects a deeper philosophical divide on the court about the role of judges in shaping constitutional law. Justice Thomas has long argued that Sullivan and its progeny are "policy-driven decisions masquerading as constitutional law,"ffective ### compartamentalizing the court from its duty to interpret the law as written. In contrast, Justice Elena Kagan, writing for a 7-2 majority in a 2023 decision, reaffirmed Sullivan‘s relevance by applying its framework to a case involving online threats, further entrenching its influence in First Amendment jurisprudence. These competing views raise fundamental questions about whether judges should defer to precedent or actively reshape the law to align with their interpretive visions.
Lower Courts and Litigants Take Notice
The debate over Sullivan‘s future is not confined to the Supreme Court. Lower courts and litigants have taken cues from Thomas and Gorsuch’s dissents, with some explicitly calling for the decision to be overturned. In a 2022 case, a Florida appeals court judge even wrote a concurring opinion declaring that Sullivan was "wrongfully decided" and not grounded in the Constitution. This sentiment has been echoed by over a dozen litigants since 2020, who have asked the Supreme Court to revisHaikute the decision. The most recent petitioner is casino magnate and Trump ally Steve Wynn, who is seeking to overturn the dismissal of his libel suit against The Associated Press while urging the court to repudiate Sullivan altogether.
What’s Next for Sullivan?
Despite the vocal critiques, there are currently only two clear votes on the court—Justices Thomas and Gorsuch—who have explicitly called for overturning Sullivan. This is well short of the five votes needed to strike down the decision. However, the growing chorus of criticism from lower courts and litigants, as well as the high court’s willingness to engage with Sullivan in recent decisions, suggests that the debate is far from over. Legal scholars warn that Sullivan could be in jeopardy if the court’s composition shifts further to the right in the future. For now, the decision remains a cornerstone of First Amendment law, but its longevity hinges on whether the court’s current majority continues to uphold its foundational principles.
