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Tuesday, October 26, 2021

A First Amendment Precedent

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Four years ago, at his Supreme Court confirmation hearings, Justice Neil M. Gorsuch indicated that a 1964 precedent protecting press freedom was secure. “That’s been the law of the land for, gosh, 50, 60 years,” he said of the decision, New York Times v. Sullivan, which made it very hard for government officials to win libel suits.

But last month, Gorsuch said it was time for the Supreme Court to take another look at the case. “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” he wrote in a dissenting opinion, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

He is not alone in calling for reconsideration of the decision, which has only one rival as the most important legal triumph for the press in American history, also involving The Times, the Pentagon Papers decision in 1971. Justice Clarence Thomas, for instance, has repeatedly called for the Supreme Court to reconsider Sullivan and rulings extending it, saying they were “policy-driven decisions masquerading as constitutional law.”

In March, Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit endorsed that view in a dissent but said that overturning Sullivan would be a heavy lift. “I recognize how difficult it will be to persuade the Supreme Court to overrule such a ‘landmark’ decision,” he wrote. “After all, doing so would incur the wrath of press and media.”

The press is biased, he wrote, and so does not deserve Sullivan’s protections. “Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets,” Silberman wrote. “And the news section of The Wall Street Journal leans in the same direction.”

There are echoes of Donald Trump’s frustration with modern defamation law in some of these critiques.

“We’re going to open up those libel laws,” Trump said on the campaign trail in 2016. “So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

It is certainly true that Sullivan imposed a daunting standard, one that favors free speech over protecting reputation. It requires proof that the disputed statements were made with “actual malice” — that is, with knowledge of their falsity or with serious subjective doubts about their truth.

The Sullivan decision was limited to public officials. Later decisions required “public figures” — celebrities and people caught up in public controversies — to make the same showing.

In a 1993 book review, Justice Elena Kagan, then a law professor at the University of Chicago, said those were “questionable extensions.”

“In extending Sullivan,” she wrote, “the court increasingly lost contact with the case’s premises and principles.”

In his recent dissent, Gorsuch cited Kagan’s article, twice, making a similar point. “Rules intended to ensure a robust debate over actions taken by high public officials carrying out the public’s business,” he wrote, “increasingly seem to leave even ordinary Americans without recourse for grievous defamation.”

But the debate over the proper scope of the Sullivan rule is no reason to do away with it, said RonNell Andersen Jones, a law professor at the University of Utah.

“There is a reason that Donald Trump and other politicians hate the Sullivan standard so much,” she said. “It is a key way that we make sure that government officials and other people in power can’t silence their critics. It would be a massive blow to American-style free speech to lose it.”

Adam Liptak is the Supreme Court reporter for The Times.

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Perched by a harbor in Asaa, a Danish village with fewer than 1,200 residents, is a statue of a mermaid that resembles a more famous one in Copenhagen. For the heirs of Edvard Eriksen — the artist who sculpted the Copenhagen landmark — the Asaa mermaid is too similar. They began legal proceedings demanding that it be torn down, and that they receive financial compensation.

Where Copenhagen’s mermaid is bronze, Asaa’s is carved from granite. The Asaa mermaid is also plumper, with coarser facial features, though her posture is the same. “How else is she going to sit?” asked Mikael Klitgaard, the mayor of the municipality that includes Asaa. “She’s a mermaid. You can’t put her in a chair.”

The Eriksen estate has a history of lawsuits over images of the sculpture, though its copyright will expire in 2029, as Lisa Abend reports in The Times. Eriksen’s heirs recently sued a Danish newspaper after it published a cartoon of a zombified mermaid and a photograph of the sculpture wearing a mask. A court fined the newspaper for about $45,000.

This time, the estate is seeking $6,000 in compensation. “If ours was bronze, with the same height and face: OK. But they are quite different. Besides, it’s clear she’s local,” Klitgaard said with a wink. “She looks just like an Asaa girl.”

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