Free Speech

How States and Congress Can Prepare for a Looming Threat to Freedom of Speech

By Jeff Kosseff, Matthew Schafer
Tuesday, July 5, 2022, 9:27 AM

After months of deliberation, last week the Supreme Court declined the most recent chance to revisit New York Times v. Sullivan, the landmark 1964 case that requires public officials to meet a high bar to succeed in a defamation lawsuit.

Yet the certiorari denial in Coral Ridge Ministries Media v. Southern Poverty Law Center is most safely seen as a temporary reprieve for First Amendment advocates, and not a guarantee that Sullivan is forever written in stone. First Amendment defamation protections are in greater jeopardy today than they have been in decades. State legislatures, state courts, and Congress, however, can codify and supplement these safeguards and others to mitigate the harm of any future reversals of these important precedents.

Why Sullivan Still Matters

Sullivan is the building block for other vital defamation protections. Overturning the precedent could lead to a flood of abusive threats from powerful figures seeking to suppress criticism and investigative journalism. We’ve been here before. Sullivan was a libel case brought by a segregationist Alabama public official who alleged that an advertisement that ran in the Times defamed him. In a trial presided over by a judge who promoted white supremacy, an all-white Alabama jury found against the Times, awarding Sullivan $500,000. (Around $5 million today.) Several other public officials had also sued the Times, and the litigation over the ad became a bet-the-company proposition.

Reversing the jury’s verdict, Justice William Brennan, writing on behalf of the Court, adopted a new constitutional standard called actual malice. According to the high court, the First Amendment required public-official defamation plaintiffs to plead and ultimately prove that a defendant published a false statement either knowing that it was false or entertaining serious doubts as to whether it was false or not.

The case is as famous for that rule—which has turned out to be a strong shield against libel lawsuits brought by powerful people to discourage criticism—as it is for declaring the “central meaning” of the First Amendment. That meaning, Brennan said, was to protect “debate on public issues” such that it would “be uninhibited, robust and wide-open.”

As a result, history has recognized that Sullivan is not just a libel case, but a foundational case about the meaning of the First Amendment. As legal journalist Anthony Lewis wrote, “A landmark such as Sullivan becomes a set of symbols. What brought it to life originally dims in our perception.”

But with recent attacks on Sullivan, that context is vitally important. The Court decided Sullivan in the throes of the civil rights movement, where segregationists had refashioned libel laws as a weapon to quelch dissent and progress. As Justice Hugo Black, an Alabamian, wrote in his concurring opinion in Sullivan, “This hostility has sometimes extended itself to persons who favor desegregation, particularly to so-called ‘outside agitators,’ a term which can be made to fit papers like the Times, which is published in New York.”

But it wasn’t just the news media that these officials targeted with libel lawsuits. Four Black ministers’ names appeared on the advertisement without their permission, but they too were sued. In partial satisfaction of the judgment, Alabama officials confiscated their cars, their homes, and their bank accounts. The Southern Christian Leadership Conference, the civil rights organization to which the ministers belonged, abandoned the “‘toughest parts of the South’” in the face of “financial persecution.”

Although the methods of communication and news media have evolved remarkably since 1964, the core values of Sullivan remain vital to freedoms of speech and the press. Sullivan provides breathing space for journalism, criticism, and dissent from media organizations, social media critics, and anyone else who wants to speak truth to power without being silenced by a well-funded threat of devastating litigation. As First Amendment defense lawyers from Ballard Spahr and Davis Wright Tremaine wrote this year, Sullivan:

continues to guarantee the rights of responsible journalists and citizens to engage in political speech, legitimately scrutinize the conduct of public officials, and engage in open debate about the conduct of individuals who wield power or influence in our society.

Recent Threats to Sullivan and Its Progeny

Coral Ridge, which arose from the Southern Poverty Law Center’s characterization of a Christian ministry and media corporation as a hate group, was not a particularly good vehicle for overturning Sullivan. The path to the Supreme Court was a winding one. The district court dismissed the defamation claim not only on actual malice grounds, but also because the term “hate group” is not provably false (as required to state a defamation claim). And the Eleventh Circuit affirmed the dismissal only on actual malice grounds but did not address the district court’s alternative reasoning.

Still, the cert denial was not unanimous. As he has done with two other such cert denials since 2019, Justice Clarence Thomas dissented and used the opportunity to call on the Court to revisit the actual malice requirement. “This case is one of many showing how [Sullivan] and its progeny have allowed media organizations and interest groups to cast false aspersions on public figures with near impunity,” Thomas wrote. 

Thomas is not alone in his criticism of Sullivan. Justice Neil Gorsuch, who did not dissent from the denial, called for the Court to revisit Sullivan last year. Gorsuch wrote:

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 has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable. 

Judges on other courts, including the D.C. Circuit, the Florida Court of Appeals, and the Michigan Court of Appeals, have also recently called for the Supreme Court to revisit Sullivan.

Thomas’s dissent in Coral Ridge was striking not only because he again asked his colleagues to reconsider the actual malice rule, but because Coral Ridge involved what is a statement of opinion: an assessment that an organization is a hate group. Liability could call into question another foundational First Amendment defamation case: Milkovich v. Lorain Journal. Milkovich is a 1990 opinion in which the Supreme Court ruled that “a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.”

Because Sullivan is the foundation of First Amendment defamation law, overturning the precedent threatens to undercut other protections that are vital to journalists and other speakers. Among them are Curtis Publishing Co. v. Butts, which extends the actual malice requirement to public figure plaintiffs; Gertz v. Robert Welch, which requires private-figure defamation plaintiffs to establish fault; and Philadelphia Newspapers v. Hepps, which places the burden of proving falsity on private figure plaintiffs in defamation suits arising from the media’s reporting on matters of public concern.

The continued threats to these First Amendment protections and others—such as Bose Corp. v. Consumers Union, which recognizes the importance of independent appellate review in First Amendment cases—should be a wake-up call for anyone who cares about limiting the chilling effect of defamation lawsuits and threats. Speakers may not always be able to rely on the First Amendment to continue to provide these safeguards; therefore, free speech advocates should look now at how state legislatures, state supreme courts, and federal legislators could codify speech protections. 

A Role for State Legislatures

In Sullivan, the Court began its federalization of the law of defamation, which displaced much of each state’s libel law. Traditionally, the states set the bar to recovery in a defamation lawsuit exceedingly low. All a plaintiff had to prove to recover was the publication of a false statement that subjected him to hatred, ridicule, or contempt. Damages were presumed—even if the plaintiff produced no evidence of actual harm to his reputation—as was the defendant’s fault. This scheme was so friendly to plaintiffs that the Court once called the whole of defamation law an “oddity of tort law.” 

But just as states had set the bar to recovery low before Sullivan, they also have the power to raise that bar should there be an “after Sullivan.” Defamation is first a product of state law. Therefore, state legislatures and state courts can devise new protections to contain the fallout from overruling Sullivan and the cannon of speech-protective doctrine that it spawned. While creative solutions to this problem abound, there are a few protections that states could adopt to prevent future issues such as the type of chaos currently unfolding in the wake of the Court’s overruling Roe v. Wade.

State legislatures should move quickly to adopt anti-SLAPP laws. First popularized in the early 1990s, these laws were originally aimed at stemming the rising tide of “strategic lawsuits against public participation” or “SLAPPs.” These SLAPP suits—often brought in the context of environmental and real estate disputes—were particularly problematic because they called on courts “to sanction presumptively constitutionally protected activity by targets.” This kind of retaliatory litigation began in earnest in the 1970s and coincided with an increase in the number of cases filed in federal court. Around the same time, permissible discovery in federal courts was expanding rapidly, meaning that SLAPP suits were less about the merits and more about “trench warfare.” As Ronald Gilson wrote in 1994, this led to litigation that sought “not to vindicate a substantive legal right” but, rather, “to secure a business advantage by imposing costs on the opposing party.”

While the rise in SLAPPs revealed the gravity of the issue, it was far from a new phenomenon. With the advent of modern journalism in the late 19th and early 20th centuries came the advent of modern libel lawsuits. As Samantha Barbas recounted in her article “The Press and Libel Before New York Times v. Sullivan,” for some newspapers libel lawsuits were an “almost daily occurrence” by the 1980s. In one instance, the Chicago Times found itself “defending twenty-four libel suits, including six by different members of the Chicago City Council.” Similarly, an editor at the New York Times said the company had from “four to sixteen libel suits on hand” at any given time. While many of these lawsuits were brought by ordinary people, “editors and publishers claimed that most libel suits were initiated by public officials ‘in malice and to “get even” with the paper which has exposed them.’”

Recognizing that SLAPP suits “developed through the neglect of First Amendment values in th[e] field of tort law,” state legislatures took action to protect democratic participation in public debate. The laws they adopted sought to vindicate free speech and press values by imposing heightened procedural and substantive protections for defendants who had been targeted for exercising their First Amendment rights. One of the earliest responses to SLAPPS, in turn named an anti-SLAPP law, was passed in 1989 by the Washington legislature. Within a few years, California, Delaware, Massachusetts, Minnesota, Nebraska, Nevada, and Rhode Island passed anti-SLAPPs as well.

These early laws took several forms. California’s was one of the strongest. Citing the “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances,” the legislature broadly defined SLAPPs as any lawsuit “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” Such a lawsuit was subject to a “special motion to strike,” which allowed for a defendant to force early resolution of an action by requiring the plaintiff to make a heightened showing (a probability of success) to avoid dismissal. It also addressed the weaponization of discovery by automatically staying discovery upon a filing of a special motion to strike.

Today, a majority of the states have adopted some form of an anti-SLAPP law (although many have not, and in several states that have them, the laws are largely useless). With Sullivan under threat, one of the most obvious remedial measures state legislatures can take is to either adopt anti-SLAPP laws if they do not have one or revisit their anti-SLAPP laws to strengthen them. The Uniform Law Commission has drafted a model anti-SLAPP law that “contains a clear framework for the efficient review and dismissal of SLAPPs.” That framework provides for the filing of a motion for expedited relief. Under that procedure, the plaintiff must produce evidence demonstrating that their claim has prima facie viability—that is, that the possibility of its prevailing is self-evident—and the defendant may show that the claim is nevertheless without merit in either law or fact. If successful, courts must award defendants attorneys’ fees and costs. This year, both Kentucky and Hawaii adopted the Uniform Act—and its supporters are varied and bipartisan. Other states should follow suit.

Alternatively, states can also enact their own versions of anti-SLAPP laws much like the New York State Legislature did when it recently expanded its anti-SLAPP law first passed in 1992. New York’s law provides similar procedural protections to defendants, including a stay of discovery and a heightened pleading standard for plaintiffs. It also provides robust substantive protections. Most notably, it dramatically changed the law of libel in New York by requiring any plaintiff suing over statements made in connection with an issue of public interest to prove that the statements were made with actual malice.

In other words, the New York legislature has broadly imposed an actual malice requirement not just on certain kinds of plaintiffs like public officials and public figures, but also on a certain kind of debate—that is, debate over issues of public concern. In New York, even if Sullivan were overruled tomorrow, the actual malice standard would still be the law of land. For the same reason, despite suggestions to the contrary, Sarah Palin’s lawsuit against the Times is unlikely to be the test case for Sullivan as New York’s anti-SLAPP law—independent of the First Amendment—imposes an actual malice requirement. This approach thus insulates the state and its citizens from the vicissitudes of a conservative majority on the Supreme Court.

A Role for State Supreme Courts

In the absence of action from state legislatures (or in addition to them), state supreme courts also have a role to play in protecting democratic debate from meritless defamation lawsuits in a post-Sullivan world. They can interpret their states’ respective defamation laws against this country’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” And, indeed, many state supreme courts did just that even prior to Sullivan.

For example, writing for the Court in Sullivan, Brennan recognized an “oft-cited statement of a like rule,” that is, one similar to the actual malice rule adopted in Sullivan, that had been “adopted by a number of state courts.” While the majority of states did not recognize that rule, many of them did—precisely because they recognized the importance of wide-open debate. Thus, long before Sullivan, states had adopted common law privileges to protect precisely the kind of debate that is now at risk if Sullivan is overruled.

State courts can also breathe new life into their state constitutional protections for freedom of speech and of the press. When the Court last took a turn toward narrowly construing individual freedoms after the end of the Warren Court, Justice Brennan called on state supreme courts to fill the void. He wrote in 1977, “State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”

Take, for example, the U.S. Supreme Court’s holding in Milkovich v. Lorain Journal Co. that a defamation plaintiff cannot base her case on the defendant’s opinions because opinions are not provable as false–—prima facie element of a defamation claim. In so holding, the Court nevertheless eschewed broader protection for opinions that the Ohio Supreme Court recognized. Despite the Court’s holding, the Ohio Supreme Court soon reaffirmed that as a matter of Ohio state constitutional law, its broader protections for opinion controlled. Thus, in Ohio, speakers today have greater latitude under that court’s precedent than whatever they might be owed under the U.S. Supreme Court’s First Amendment jurisprudence.

Other states have done the same. Recognizing its own constitutional history and its role as home to news organizations from around the world, New York’s court of last resort long ago held that the “protection afforded by the guarantees of free press and speech in the New York Constitution is often broader than the minimum required by” the U.S. constitution. Similarly, New Jersey’s highest court recognized that its state’s protection of press freedom was “more sweeping in scope than the language of the First Amendment.”

When the Court handed down Sullivan and extended it throughout the years, there was little reason for state courts to undertake an independent analysis of their constitutional law and its effects, if any, on onerous defamation lawsuits. In this way, Sullivan actually arrested much of the development of state defamation and constitutional law in this area. Much as they did before Sullivan, however, state supreme courts should consider again their own state constitutional text and history rather than merely deciding cases on First Amendment grounds.

A Role for Congress

All 50 states are unlikely to pass strong anti-SLAPP laws. And not all state supreme courts are likely to fill the void if Sullivan is overturned. Even if they were to do so, critical gaps would remain. Congress could alleviate this uncertainty in state law both by passing procedural safeguards in a federal anti-SLAPP law and by codifying Sullivan and other defamation precedents in statute.

Although state law governs defamation cases, they often are litigated in federal court under diversity jurisdiction. And the courts are split as to whether and when defendants can use state anti-SLAPP laws in federal court. As Kacie Yamamoto wrote last year, if state anti-SLAPP laws do not apply in federal court, plaintiffs will increasingly sue in federal court. This could create a trend that will “lead to exactly the type of chilling effect that anti-SLAPP laws are designed to prevent.”

Congress could fill this gap by passing a federal anti-SLAPP law, ideally modeled after a strong statute such as California’s or New York’s. As Daniel A. Horwitz wrote in 2020:

By ensuring that every defendant who is subjected to a SLAPP suit can defend against a plaintiff’s claims without fear of ruinous financial consequences the predictable—and essential—result is that fewer defendants will be sued into silence, and the public’s right to receive information and ideas will finally receive the nationwide protection it deserves.

For years, members of Congress have introduced anti-SLAPP bills, but none has become law. The most recent, the Citizen Participation Act of 2020, was introduced nearly two years ago and did not move out of committee.

While it is understandable to scoff at the possibility of a narrowly divided Congress passing something as substantive as an anti-SLAPP law, the cause has received bipartisan support. Consider the Speak Free Act, an anti-SLAPP bill that former U.S. Rep. Blake Farenthold, a Texas Republican, proposed in May 2015. Farenthold amassed 32 co-sponsors, including California Democrat Anna Eshoo, California Republican Darrell Issa, Arizona Republica Trent Franks, and Colorado Democrat Jared Polis. Protecting free speech should be—and often is—a shared bipartisan value.

Although an anti-SLAPP law would be a vital step toward combating abusive defamation lawsuits, it probably would not be enough to protect free speech in the face of a reversal of Sullivan and the other key First Amendment defamation precedent. Congress can take a page from New York’s playbook and provide substantive statutory protections from defamation cases. In addition to passing an anti-SLAPP law, Congress should codify the protections of Sullivan, Curtis Publishing, Gertz, Bose, Hepps, and Milkovich.

Enacting such statutory safeguards is trickier at the federal level, as state law governs defamation cases. The most viable avenue would be a federal statute that expressly preempts defamation cases that do not meet the standards set by Sullivan and the other landmark cases. In other words, Congress can displace state law to the extent it is inconsistent with the Supreme Court’s present limitations on fault, damages, falsity, and the concomitant procedural protections the Court has recognized.

Federal preemption of state defamation claims has precedent. Section 230 of the Communications Decency Act—a federal law that prevents websites and other interactive computer service providers from being liable for a wide swath of user-generated content—contains a provision expressly preempting state laws: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Since its enactment in 1996, Section 230 has protected interactive computer service providers and users in both federal and state courts for a wide range of claims, including many defamation lawsuits. 

Unlike Section 230, our proposal would not entirely preempt lawsuits, but would allow them only if they met the standards of Sullivan and the other key precedents. Because Congress would pass this law under its Commerce Clause authorities, there theoretically might be some defamation disputes that are entirely intrastate and beyond the reach of the federal preemption, but at the very least the federal law likely would cover any online speech and journalism.

We recognize that these solutions—particularly the federal preemption—are extraordinary. So too are the looming threats to freedom of speech. All speakers in the United States—from large media organizations to hyperlocal news sites to anonymous dissidents on Twitter—benefit from the precedent that began with Justice Brennan’s 1964 opinion in Sullivan. That precedent is more endangered now than ever before. And state and federal legislators have the best opportunity to ensure that those protections do not suddenly disappear one day in June.