‘Actual malice’ and internet speech

Update: In an order issued on Nov. 1, 2021, the U.S. Supreme Court declined to hear Pace v. Baker-White and Tah v. Global Witness Publishing, Inc.

The U.S. Supreme Court considered whether to hear appeals in two libel cases at its latest conference last week. In both, the petitioner is asking the Court to walk back the landmark First Amendment precedent, New York Times v. Sullivan.

In 1964, the Supreme Court in Sullivan established the “actual malice” standard in public figure defamation actions: a public figure plaintiff must prove that the publisher published the statement with knowledge of its falsity or with reckless disregard for the truth of the statement. It is a high bar for a defamation plaintiff. As the Court in Sullivan stated, this “breathing space” is necessary “if the freedoms of expression [are] … to survive.”

In a case that should be of particular interest to readers of this newsletter, the parties expressly asked whether the rise of “internet speech” should change the breathing space calculus articulated in Sullivan. The case, Pace v. Baker-White, concerns an online database compiling Facebook posts and comments of past and current police officers that the database organizers argued could “undermine public trust and confidence in our police” by revealing biases and prejudices. The petitioner, a Philadelphia police officer whose Facebook comments were included in the database, argued that internet speech has caused a “dramatic change in the ‘public square,’” such that the Supreme Court should weaken the actual malice standard and make recovery easier for public figure plaintiffs in defamation suits.

In the second case, Tah v. Global Witness Publishing, Inc., the court below considered whether a public figure plaintiff must show direct evidence of actual malice or whether it can be plausibly inferred through “detailed factual allegations.” The case concerns a group of former Liberian public officials suing a nonprofit organization for reporting on their role in a multinational oil rights transaction.

The Reporters Committee and 26 media organizations submitted a friend-of-the-court brief focused on the application of the District of Columbia’s anti-SLAPP law in federal court. While the U.S. Court of Appeals for the District of Columbia Circuit ultimately found there to be insufficient evidence that the nonprofit acted with actual malice, Judge Laurence Silberman dissented in part, and called for the overturning of Sullivan.

While it is far from certain that the Court will even decide to hear these cases, let alone walk back Sullivan, in recent opinions, two justices signaled they believe Sullivan warrants another look. Justice Clarence Thomas reiterated his 2019 opinion that Sullivan deserves reconsideration in a July 2021 dissent, arguing the actual malice standard for public figures “bears ‘no relation to the text, history, or structure of the Constitution.’” Justice Neil M. Gorsuch joined Thomas in his own critique of Sullivan, arguing the shift in our media landscape calls for a rethinking of the actual malice standard.

If the Supreme Court does decide, however, to take one or both of these cases, it will be, as First Amendment lawyer Floyd Abrams wrote in a recent New York Times guest essay, “an occasion for us all to hold our breath.”

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.