Slate–the online magazine, not the trendy New York Manhattan dry-cleaning company started by a former student–ran an article by Dahlia Lithwick about Justice Scalia’s statement that he would vote to reverse New York Times v Sullivan if given the chance. This 1964 Supreme Court decision imposed the requirement that public officials who sue for defamation must prove, in addition to the the standard prima facie case, that the defendant acted with actual malice when making the allegedly defamatory statement. The Sullivan decision, which defined actual malice to comprise either knowing the statement was false or acting with reckless disregard of the truth, makes it very difficult for public officials to prevail in defamation lawsuits. To the extent the decision enables investigative journalism and limits the ability of public personalities to threaten publishers meaningfully with defamation suits, this is a good thing.
The problem is that the scope of those who must satisfy the actual malice standard has morphed over time to apply to public officials and public figures. In our celebrity-drenched culture the amount of reporting on public figures dwarfs that on public officials. The First Amendment principles served by the Sullivan decision do not apply with the same force to stories about Lindsay Lohan’s rehab. Sullivan’s rationale echos a quotation from a 1908 Kansas case, Coleman v MacLennan:
It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged.
Courts have extended NYT v Sullivan’s reportorial privilege to public figures–those who thrust themselves into the public eye–because public figures can, arguably, command the resources to refute untrue and defamatory accusations. But should the public have the same right to know about the private lives of sports, entertainment, and other public figures as they do about public officials, candidates for public office, those who wield government power? Scaling back the actual malice requirement in defamation cases brought by public figures could restore grains of dignity and privacy to news media without undermining New York Times v Sullivan’s original rationale. But who gets to decide what information we receive? If fear of liability causes news media (including bloggers) to refrain from posting information about Lindsay Lohan, won’t the chill spread?
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