Dan Greenberg
“Reputational harm is real harm,” Elena Kagan said during her Supreme Court confirmation hearing. “And the legal system should not pretend that it is not.”
Kagan was responding to a series of questions from Senator Amy Klobuchar, who had asked her to elaborate on her views about New York Times v. Sullivan, the 1964 Supreme Court opinion that famously shaped modern defamation law by requiring proof of malice for liability. Sullivan is controversial, largely because of the new balance it struck between protecting the First Amendment rights of speakers and protecting the reputations of those who are spoken about.
The Court’s Gertz v. Welch opinion, issued a decade after Sullivan, elaborated on the compromise Sullivan reached. As that opinion explained: “Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury.” The Sullivan Court attempted to resolve this tension when it “extended a measure of strategic protection to defamatory falsehood.” But Sullivan “exacts a correspondingly high price from the victims of defamatory falsehood. Plainly, many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test.”
In short, according to Gertz, Sullivan’s “accommodation” was a political compromise that yanked the rug out from under a significant number of damaged and under- or uncompensated plaintiffs with legitimate claims. Political compromises regularly face legitimate criticism, because those compromises imply the resolution of disagreement in a way that is unlikely to be universally satisfactory. In contrast, David Enrich’s new book, Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful, appears to reject Gertz’s account of Sullivan as a compromise: Instead, his book argues that critics of Sullivan are driven by mistaken or malign motives.
Murder the Truth charges that Sullivan’s critics are engaged in a conspiracy to deprive journalists of their rights and deprive the public of the benefits of fair comment. The book describes a shadowy “crusade” by anti-Sullivan forces, whose “true mission” is “to neutralize the media and anyone else who might expose the wrongdoing and secrets of those with the resources to wage legal war.”
In short, Murder the Truth is essentially a narrative about good versus evil; the book appears devoid of any understanding that critics of Sullivan might be pursuing any valuable outcomes at all.
The book is structured as a series of chapters, each of which describes a new challenge to the compromise that Sullivan engineered between the expressive rights of speakers and the reputational rights of those spoken about. That compromise was realized in the constitutionalization of Sullivan’s malice rule—a rule that regularly insulates journalists who get the facts wrong from liability to suit. Of course, in a sense, most legal rules reflect some kind of balance—one might say the law creates a balance between the interests of the canned-food manufacturer and the interests of the public not to eat spoiled foods, or a balance between the interests of the gravel truck driving down the highway and the interests of the automotive commuter to avoid a chipped windshield. Nonetheless, there is something faintly puzzling about the idea of balancing rights against each other, because in the American legal tradition, rights are generally understood as absolute: they’re supposed to settle legal questions, not function like weights on a scale.
Of course, the downside to Sullivan’s constitutionalization is that it blocks the law from further development. In a world without Sullivan, different states can experiment and learn from the experiences and the mistakes of their neighbors; different legislatures and courts can put forward their own balance between the protection of expression and the protection of reputation. Unless you think that Sullivan got the balance right, constitutionalization is dangerous. And I admit to some bias here. Earlier this year, I finished producing a documentary, American Libel, that (among other things) argues that Sullivan’s balance is lopsided. My own view is that Sullivan’s balance errs because it is too tolerant of falsehood that can harm reputations and human lives. I think that the inscription of this kind of lopsidedness into the law of the entire country is not just morally mistaken: It is socially and politically dangerous.
I therefore found Murder the Truth revealing in a way that its author presumably did not intend, because the book demonstrates the dangers of forgetting what Sullivan is intended to accomplish: namely, the Supreme Court’s opinion is intended to balance multiple important values. Indeed, Murder the Truth’s style of argument almost seems designed to divert the reader’s attention from the compromise that is at the heart of the Sullivan decision and the law that it has spawned. Whatever you think of Sullivan, it is unambiguously an attempt to manage independent, competing social values and social policies that are in some tension with one another. But respect for one side of the balance that Sullivan seeks (namely, protection from the harm of falsehoods) is absent from Murder the Truth’s narrative. It is almost as if the author has a blind spot that makes him overlook the fact that criticisms of Sullivan have any force at all.
Murder the Truth goes into immense journalistic detail about a series of defamation actions that are essentially driven by (or foreclosed by) Sullivan’s framework. Curiously, the book’s discussion of defamation law itself is lacking in detail; Murder the Truth misfires both when it describes the law itself and in the arguments it regularly suggests and sometimes expressly makes about what the law should be. Below, I explain three areas in which Murder the Truth requires correction: the law before Sullivan, the law of Sullivan, and the law after Sullivan.
Murder the Truth gets the law before Sullivan wrong.
Murder the Truth’s description of libel law before Sullivan is brief and unserious. According to Murder the Truth, before Sullivan, “it was relatively easy for plaintiffs, regardless of their public stature, to prevail in such cases. Unlike in a criminal trial, where the defendant is presumed innocent, the starting point in libel cases … tended to be that what the defendant had written was false. It was up to him to prove otherwise.”
A book-length account of what Sullivan produced deserves more than three highly misleading sentences about what predated it, and the reader who wants to understand the landscape of libel law before Sullivan deserves a more careful and accurate description than Murder the Truth provides.
As legal historian Samantha Barbas has written, although libel law did impose some burdens on journalism for much of the 20th century before Sullivan’s emergence, “many sectors of the press enjoyed broad latitude to report the news and to comment on politics and public issues.” Before Sullivan, the libel plaintiff (the injured party) still had to prove his or her case. And although it is true that the general rule in libel actions was that malice was presumed, there was an important exception to that rule: the fair comment privilege, which every state had adopted by the end of the 19th century. In this context, the exception of the fair comment privilege swallowed the rule of presumption of falsity. The fair comment privilege created a green light for the publication of defamatory statements of opinion about public officials or about matters of public interest—so long as the facts at issue were true and the propositions at issue were motivated by an honest purpose.
Indeed, libel law continued to develop in a media-sympathetic manner for roughly the first half of the 20th century. Some courts made the truth defense considerably easier (that is, less exacting) for defendants to use; a quarter of the states adopted what was known as the “Kansas rule,” which allowed defendants to be free of liability for false statements of fact about official conduct, as long as there was probable cause to believe in their truth. Libel insurance was first offered in the 1930s, but it was not an especially popular product; there were relatively few purchasers of it, because many journalistic enterprises had developed internal review and verification mechanisms that they thought made the risk of defamation lawsuits negligible. As Professor Barbas has explained, at mid-century the American media had reached a kind of equilibrium in which the number of libel lawsuits filed, the damages paid, and the settlements paid were minimal.
In fairness, at the beginning of the second half of the 20th century, that equilibrium began to shift. Around 1950, the rise of aggressive litigants, coupled with the greater frequency of punitive damages (and perhaps coupled with lower social status for the press generally), began to result in more frequent and more punishing verdicts. The fact that New York Times v. Sullivan created more breathing room for the media was not incidental—but Murder the Truth skips over the fact that it didn’t have to be that way.
The Court could have found that the newspaper ad that triggered the Sullivan litigation—which, famously, never named the plaintiff—wasn’t really about L.B. Sullivan at all and therefore that it didn’t damage him. It is hard to avoid the conclusion that, in Sullivan, the Court made new law to address a new social problem.
The larger point here is that, before Sullivan, the status quo of libel law fluctuated tremendously across time and across states. The evidence shows that, for many decades, federalism worked. Courts and legislatures experimented with a variety of protections for writers and for the people being written about; state-level policymakers learned from their own experience and from their neighbors’.
The sledgehammer of Sullivan is best understood as a response to what Barbas calls an “equilibrium upset.” The larger question that this historical account invites is: Did the nation ever have a free press before Sullivan? It is difficult to settle such questions conclusively, but what is clear is that many people (indeed, many journalists) certainly once thought we did. No doubt, the nature of federalism and evolutionary, common-law-style policy development meant that speech protection before Sullivan was frothy and protean; what is strange is that Murder the Truth’s narrative suggests that free speech protections for American journalism began with the issuance of Sullivan in 1964.
Murder the Truth gets Sullivan wrong.
Murder the Truth summarizes Sullivan as follows: “The court concluded that journalists and others shouldn’t be held liable when they accidentally got facts wrong about people in the public eye. (If someone was deliberately or recklessly spreading falsehoods, that was a different matter; nobody thought defamatory lies deserved protection.)” This is wrong. In fact, a third of the Supreme Court thought defamatory lies deserved protection when they were aimed at public officials. In a pair of drive-by Sullivan concurrences, Justice Black explained that the Constitution provided “absolute immunity” to the press when it criticized public officials; similarly, Justice Goldberg detected “an absolute, unconditional privilege to criticize official conduct.” Justice Douglas joined both concurrences.
My spotlighting of Murder the Truth’s inaccuracy here is not intended to be niggling or technical. Rather, this error underscores how Murder the Truth consistently plays down the radical implications of Sullivan and the respects in which it was out of step with the historical understanding of the role of the First Amendment. The central consequence of Sullivan, of course, is its constitutionalization of the malice rule—that rule is: without malice, libel cannot occur. The malice rule upends the basic structure of defamation law because it pushes the courts’ inquiry away from the accuracy of what’s published onto the mental state of the publisher. It is a doctrinal change with radical implications, because it removes the determination of liability away from what happened in the outside world (e.g., was the defendant’s behavior negligent during research and fact-gathering?) and substitutes for it an analysis of what was happening in the defendant’s mind (e.g., what was the defendant thinking when he or she produced an allegedly defamatory text?). This doctrinal change creates a new set of incentives for journalists and citizens, and this new set of incentives is in large part a function of the extraordinary difficulty of proving, by means of clear and convincing evidence, the presence of malice in the defendant’s mind.
Of course, it is a common-sense proposition that changes in rules regularly encourage changes in behavior. As I explain below, however, when this proposition is applied to Sullivan, Murder the Truth finds it controversial or even mystifying.
Murder the Truth gets the consequences of Sullivan wrong.
The author of Murder the Truth does not appear to understand why any civic-minded person might in good faith want to see Sullivan overturned: it is as if the author cannot see why that opinion has any downside. At several points, the author simply seems incapable of understanding the case against Sullivan—namely, that the current law inadequately deters falsehood. For instance, Murder the Truth paraphrases Judge Silberman’s notorious dissent in Tah v. Global Witness, in which Silberman argues that the liability protections Sullivan created for journalists are fundamentally ahistorical and incompatible with the development of the rest of constitutional law. As Enrich writes, Silberman explains that
“the ruling had imbued the media with enormous power, allowing it ‘to cast false aspersions on public figures with near impunity.’ This was an increasingly common argument, one that lawyers like Libby Locke and Charles Harder had been making for years, conveniently ignoring the victories they’d won in and out of court. Now Silberman stamped their questionable premise with the official imprimatur of a judicial opinion.”
The odd thing about this particular criticism in Murder the Truth is that Silberman’s thesis is unambiguously correct. It is simply a matter of fact that, after Sullivan, journalists regularly can and do print falsehoods with zero liability. The reason people make this “increasingly common argument” about Sullivan is because it is on target; it conveniently ignores nothing; it is as much a “questionable premise” as two and two making four.
Murder the Truth exhibits similar ideological blinders in its criticism of a momentarily famous law review article by Professor David Logan that speculates about the consequences of Sullivan’s malice rules. (This article’s brief fame derived from its prominence in a Gorsuch dissent from the Court’s decision to decline to hear an appeal.) Gorsuch’s dissent had adopted Logan’s theory about Sullivan’s creation of counterproductive incentives:
“This puts publishers to a hard choice: publishing without verification is the safest legal route, as an attempt to verify that turns up contrary information before publication can constitute reckless disregard for the truth and support liability. As a result, publishers are incentivized to do little or no fact-checking, confident that the more slipshod their investigation, the less likely they are to be guilty of ‘actual malice’. In short, under an ‘actual malice’ regime, ignorance is bliss.”
Notably, Gorsuch’s (and Logan’s) argument here is about what behavior one might predictably see, given some particular incentive structure. (To put this in plainer terms, one could similarly argue that if laws against speeding are no longer enforced, we are likely to see more speeding; such arguments are often plausible even when they are not immediately accompanied by empirical evidence.) After Enrich provides this snippet from Gorsuch’s dissent, he then describes the interview he conducted with Professor Logan. Enrich quizzes Logan about the empirical evidence for his incentivization theory, and the author plainly thinks he has scored a great concession: he drily notes that Logan “provided no evidence or examples” for his incentivization theory, labels Logan’s argument an “inflammatory hypothesis,” and criticizes it by explaining that Logan was
“surprisingly ignorant about how the media works. Reporters often spend days, weeks, or even months investigating, checking facts, and trying to understand things from multiple perspectives. Their editors interrogate them. Lawyers vet articles before publication … there was a reason that Logan couldn’t muster any examples to support his hypothesis that journalists deliberately produced “slipshod” investigations to insulate themselves from lawsuits: it just wasn’t true.”
Note the nature of Murder the Truth’s argument here: Enrich demands evidence that Logan’s hypothesis isn’t true. He then dismisses Logan’s hypothesis because Logan does not provide any evidence or examples for it; instead, Logan supplies nothing but his own theory about how the world works. Enrich then provides an entirely different theory about how conscientious and careful all journalists are: Enrich writes in support of that second hypothesis, but the only evidence he provides is his own theory about the way the world works.
Enrich’s theory of universally careful and competent journalists fails for multiple and obvious reasons. First: the theory that neither deadline pressures nor financial pressures ever operate to encourage substandard work is simply not credible, whether what is under discussion is journalism or some other profession. Second: Enrich’s hypothesized universe of exacting professional norms certainly doesn’t constrain the modern citizen-journalist—that is, anyone with a Substack following or a Twitter account who opines about public life. Third: although, of course, it is possible that a journalistic enterprise might publish a mistake of fact after the kind of exhaustive scrutiny Enrich describes from journalists, editors, and lawyers, by definition that cannot constitute negligence.
In other words, if the professional norms that Erwin assumes to be true were actually part of the real world, the problem of negligent, liability-free defamation that vexed Justice Kagan could not exist.
But the first problem with Murder the Truth’s argument, briefly described above, deserves some elaboration. The argument of Murder the Truth elides the fact that empirical evidence is not the only kind of evidence that explains social phenomena: a plausible account of the way that people respond to the world’s varied incentives serves as its own kind of evidence. And the notion that everyone in journalism is always careful and competent is just not plausible. Murder the Truth appears to subscribe to what might be called the professional’s fallacy: namely, that professional norms in some occupations are so healthy and strong, and that the careless errors made in the practice of those occupations are so unimportant, that it is a waste of time and energy to worry about them. One occasionally sees the professional’s fallacy in action when speaking to medical doctors about health care policy; some doctors appear to believe that their colleagues commit so few errors in practice that any program that further discourages errors is pointless. The admiration of the quality and importance of one’s own work, and the work of one’s colleagues, is perfectly natural and understandable behavior. But a bit of humility is called for whenever such admiration seeps into one’s social views.
One indisputable fact is that, in most lines of work, those who are just negligent face liability; a second indisputable fact is that, in journalism, those who are just negligent are free of any legal penalty. A third indisputable fact is that New York Times v. Sullivan erased certain kinds of previously existing publisher liability. But the argument of Murder the Truth treats the assertion of such realities as little more than a display of rudeness and thoughtlessness.
It really shouldn’t be controversial to draw the inference that Sullivan created incentives for bad behavior, but it’s apparently quite controversial from the perspective of Murder the Truth: the book’s primary response to the incentivization argument that Logan and Gorsuch make is to insist that it is “nonsense” and to quote other journalists who use similarly empty invective such as “very out there” and “a form of extremism.” It is always reasonable to interrogate the views of others by asking what evidence there is for some given view—but when Enrich insists that the views of others require empirical evidence, while his views do not, that is less reasonable.
The mistakes Murder the Truth makes are not confined to New York Times v. Sullivan. In my next post, I will discuss some implications of the book’s primary omission. That is: in Murder the Truth, Enrich argues anecdotally (but at great length) that Sullivan’s liability carve-out advances free expression. In my next post, I will explore what Enrich does not: how Sullivan actually reduces the value of free expression, and how free expression would be protected in a world without Sullivan.