How Reversing a 60-Year-Old Precedent Could Silence Journalists

Is Free Speech Under Fire?

For sixty years, the crucial decision in New York Times Co v Sullivan has protected First Amendment rights by preventing public officials from filing baseless defamation lawsuits against media organizations. Nevertheless, a growing number of figures, such as Supreme Court Justices Clarence Thomas and Neil Gorsuch, have openly debated the relevance of this ruling in today’s complex political and media environment. This skepticism is further compounded by continued disputes and notable political criticisms casting doubt on the enduring significance of the Sullivan decision.

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The Sullivan Precedent: A Primer

Decided in 1964, New York Times Co. v. Sullivan arose from a lawsuit brought by L.B. Sullivan, a public official in Montgomery, Alabama, who claimed he had been defamed by a newspaper advertisement that criticized the city’s treatment of civil rights protesters. While the ad contained minor factual inaccuracies, it did not name Sullivan directly. Nevertheless, he was awarded $500,000 in damages in an Alabama court.

The Supreme Court unanimously overturned that verdict, creating what is now known as the “actual malice” standard. Winning a defamation case requires public figures to prove that a statement was false and made with “knowledge of its falsity or reckless disregard for the truth.” This standard was designed to protect open and robust debate, even at the risk of allowing occasional errors, particularly when scrutinizing government officials

Justice William Brennan, writing for the Court, famously argued that public officials must expect “vehement, caustic, and sometimes unpleasantly sharp attacks” as part of a functioning democracy. Since then, the decision has been widely accepted as a shield for journalists and free expression.

Conservative Challenges to Sullivan

Fast-forward to the 21st century, and the Sullivan decision is increasingly under attack. Justice Clarence Thomas leads the charge and has repeatedly criticized the ruling in dissents and public statements.

In a 2021 dissent, Thomas argued that Sullivan’s “actual malice” standard allows media organizations to publish defamatory content with little accountability. He called for the Court to revisit the decision, claiming it lacks historical grounding and undermines public trust in media institutions. Thomas wrote:

“Public figure or not lies about people can ruin lives. We should not continue to insulate those who perpetuate such lies from the traditional remedies for defamation.”

Justice Neil Gorsuch echoed similar concerns in a 2021 opinion, questioning whether the media landscape of 2024—dominated by digital platforms and viral misinformation—still justifies the same protections. Gorsuch noted that social media has amplified falsehoods to unprecedented levels, potentially rendering Sullivan outdated.

High-Profile Legal Challenges

The Sullivan precedent has faced renewed scrutiny through high-profile legal battles, particularly involving conservative figures.

In 2022, former coal executive and political candidate Don Blankenship sought to overturn Sullivan after losing a defamation case against several major news outlets. Blankenship argued that the media had mischaracterized him as a “felon” during his Senate campaign. The Supreme Court declined to hear his case. Still, Justice Thomas issued a statement reiterating his desire to revisit the standard.

Similarly, Sarah Palin’s defamation lawsuit against The New York Times has tested the boundaries of Sullivan. Palin accused the paper of publishing false information linking her to a mass shooting. While the case initially failed, a federal appeals court in 2024 revived the lawsuit, setting the stage for another showdown that could challenge the precedent.

Trump and the Weaponization of Defamation

Donald Trump has been among the most vocal critics of Sullivan, repeatedly calling for changes to libel laws throughout his political career. During his presidency, Trump argued that the standard made it “impossible” for public figures like him to hold media outlets accountable for “fake news.”

“We’re going to open up the libel laws,” Trump told supporters in 2016. “When they write purposely negative and horrible and false articles, we can sue them and win lots of money.”

Legal experts warn that dismantling Sullivan could usher in a new era of weaponized defamation lawsuits, particularly from political figures seeking to intimidate journalists. Media watchdogs have described such efforts as a direct attack on press freedoms to silence dissent and critical reporting.

The Future of Sullivan: A Question of Fairness

Critics warn that overturning Sullivan could pave the way for selective enforcement of defamation laws, particularly in courts with conservative leanings. The pressing issue may not be whether the Sullivan standard collapses, but whether its fall is applied equitably. Would conservative media outlets be held to the same standards of liability as their liberal counterparts?

In today’s polarized political climate, many fear that dismantling Sullivan could result in a legal double standard—one where left-leaning media outlets are subjected to relentless lawsuits, while conservative platforms benefit from judicial leniency.

Media, Press Freedoms, and the Stakes

For mainstream and independent media alike, overturning Sullivan would represent an existential threat. Without the “actual malice” protection, journalists could face crippling lawsuits for reporting on influential figures, even when working in good faith. This chilling effect would discourage investigative reporting and limit accountability.

Public trust in journalism, already strained, could further erode as newsrooms self-censor to avoid litigation. As Columbia Journalism School professor Emily Bell explains:

“press freedom is now potentially under threat in America, which is not something that we ever thought would be the case.”

Where Do Press Freedoms Go From Here?

As New York Times Co. v. Sullivan teeters on the brink, its fall could usher in an era where truth becomes a liability, not a defense. In dismantling protections for the press, the courts risk turning journalism into a luxury only the wealthy or fearless can afford—leaving the public blind to unchecked power and corruption.

Should Sullivan fall, the consequences could be profound: a flood of defamation lawsuits, weakened press freedoms, and a chilling effect on reporting that holds the powerful to account. For now, the precedent stands—but its survival is far from guaranteed.