For well over 50 years, the Supreme Court’s New York Times v. Sullivan decision has governed the principles applied by the courts when assessing any claim of defamation. That standard requires that, to find a statement about a public figure to be defamatory, not only does the statement need to be false, but it also needs to have been conveyed with “actual malice.” The Sullivan decision generally defines actual malice as writing or publishing an incorrect harmful statement knowing that the statement was false, or with reckless disregard as to whether the statement was true or not. See our articles here and here, on this standard. Because of this standard, the vast majority of defamation cases against public figures cannot be sustained, as it can rarely be proven that a defendant knew or should have known that a statement about a public figure was untrue.
In the recent past, there have been calls for this standard to be revisited. Former President Trump was a big critic of the policy, thinking that he should have a greater ability to successfully sue media outlets over his claims of “fake news.” Earlier this year, a prominent US Court of Appeals judge suggested that the doctrine should be abolished, using his dissenting opinion (at the end of this decision) to rail against big media companies and what he perceived to be their liberal bias. This past week, two Supreme Court justices, Thomas and Gorsuch, issued dissenting opinions arguing that the Sullivan standard should change, in a case in which the Court decided not to review a lower court’s finding that a defamation case was precluded by the application of the Sullivan standards. Justice Thomas has made this argument before (prior case here, new dissent here), but the dissenting opinion of Justice Gorsuch was the first time that he officially went on record calling for a modification of the standard.
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