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Abstract

Despite calls to reverse New York Times v. Sullivan--calls offered by two Supreme Court Justices, several legal scholars, and some members of the popular press--this Article demonstrates that Sullivan's protections have never been more relevant or more necessary, particularly in light of an epidemic of malicious, often strategic falsities, as well as overt assaults on the institutional press by powerful actors. Further, for Sullivan to do its work effectively, it must be reinforced by two other legal protections: robust Anti-SLAPP statutes and revival of the neutral reportage privilege. Critics' claims that Sullivan gutted defamation law, leaving those whose reputations are damaged by defamatory falsehoods with no remedy, wildly overstate the case. Sullivan's reckless disregard standard applies only to public figures involved in matters of public interest. Private plaintiffs are not subject to its high threshold. While the Court did find that the Constitution places modest requirements on private plaintiffs' defamation suits, it did so with a light touch. The Court eliminated several common law presumptions--unique to defamation law--holding that private plaintiffs must prove each element of defamation by a preponderance of the evidence, *226 and that they must prove at least negligence to prevail--the burden required of other tort plaintiffs. As for the requirement that public figures prove that the defendant acted with knowledge of falsity, or reckless disregard for the truth, the Court did set a high bar, but found that such protection was essential to ensure the robust debate that forms the bedrock of a democratic society. Public figures do face a significant hurdle in bringing defamation actions, and some public figures with legitimate claims may not be able to clear that hurdle. But they are not left remediless. As the Court explained in Gertz, public figures have far greater access to a defamation plaintiff's first and best remedy--self-help--by virtue of their access to many channels of communication. Anthony Lewis put a point on it, noting that, a public figure's “recourse is not litigation but rebuttal.”4 And, even with Sullivan's high bar, a good number of public figures prevail in defamation suits. The “reckless disregard” standard does much to limit meritless litigation. And it is the threat of litigation--specifically meritless suits--that poses the most serious risk, especially now. High-profile figures declare war on the institutional press, using the threat of baseless defamation suits as a potent weapon in that war. Former President Trump boasted that he “couldn't win the suit, but brought it anyway to make a point,” bragging that it cost his target a great deal of money. This echoes exactly what was going on when Sullivan was decided. At the time, the civil rights movement had spread throughout the South, and was being met with violent backlash. The national press took the lead in telling the story, drawing the ire of segregationists. This ire spawned a strategy of filing libel suits against the national news outlets, seeking staggering sums in damages. Celebrating the state court verdict in the Sullivan case (overturned by the Supreme Court), one Alabama editorial boasted that the verdict would cause the “Northern press” to rethink publishing “‘any thing detrimental to the South.”’ Former President Trump's boast echoes this strategy. The reckless disregard standard pushes back against such strategic deployment of defamation suits. But the Sullivan standard can't do the work alone. Rather, it must be combined with robust Anti-SLAPP statutes that allow for early dismissal of meritless cases and provide the prompt and reliable award of attorney's fees for the successful movant to neutralize the strategy of bringing meritless suits. In addition, we need broad adaptation of the neutral reportage doctrine which protects one who republishes a defamatory statement (for the very purpose of calling out the falsity) from the impact of the repeater rule that would subject the re-publisher to tort liability. Together, the Sullivan standard, strong Anti-SLAPP statutes, and the neutral reportage doctrine can provide potent weapons protecting speakers who call out those in power, especially for the spread of malicious falsity.

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