Ashley Messenger, ‘The Problem with New York Times, Inc v Sullivan

The Court’s decision in New York Times, Inc. v. Sullivan was hailed as a breakthrough for First Amendment rights because it acknowledged that there should be constitutional protection for false statements in some circumstances and that the value of expression may outweigh the value of avoiding potential harm to reputation. But the Court’s opinion was based on what we might call a “falsity model” of First Amendment theory – the notion that false speech is problematic precisely because it is false. This same rationale was the basis for the Stolen Valor Act and other laws that seek to curtail or punish speech that is false on its face.

There are legitimate concerns about false speech, particularly where it rises to the level of being fraudulent. Nevertheless, I would argue that Sullivan is based on a faulty premise; namely, that all knowingly false factual assertions are devoid of constitutional value – a notion further reinforced by Gertz v. Robert Welch, Inc. Cases have since demonstrated that there are problems with this premise, and, in libel cases, the courts have wrestled with ways to protect valuable yet false statements, or, in a few cases, they have regrettably imposed liability on publishers who repeat the highly newsworthy statements, resulting in the “Sullivan gap” – an absence of an effective defense in cases where there should be a recognition of “constitutional value” that is protected. These typically involve cases where a report that is likely to be false or known to be false is nevertheless highly expressive or newsworthy and should be reported, not to demonstrate the truth of the assertion, but to show the mindset or conduct of the speaker or the existence of a controversy.

Courts have attempted to protect expressive speech by applying or expanding other libel defenses. An examination of those defenses shows they have a common trait: the statements at issue are not offered to prove the truth of the matter asserted. Thus, a “speech act” model should be adopted in lieu of Sullivan’s falsity model to determine when constitutional protection should be afforded to allegedly libelous speech. A libel claim should be permitted only where the statement constitutes a credible “telling.”

Messenger, Ashley, The Problem with New York Times, Inc. v. Sullivan (July 17, 2012). First Amendment Law Review, Forthcoming.

First posted 2012-07-18 20:59:38

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