Civil Liberties

mahatmakanejeeves

(61,437 posts) Wed Sep 5, 2018, 09:31 AM Sep 2018

When Kavanaugh joins the court, there will be a solid 4 votes to overturn Times v. Sullivan.

New York Times Co. v. Sullivan

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a landmark United States Supreme Court case that established the actual malice standard, which has to be met before press reports about public officials can be considered to be libel; and hence allowed free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press. The actual malice standard requires that the plaintiff in a defamation case, if that person is a public official or public figure, prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty of proving the defendant's knowledge and intentions, such claims by public figures rarely prevail.

Before this decision, there were nearly US $300,000,000 in libel actions from the Southern states outstanding against news organizations, as part of a focused effort by Southern officials to use defamation lawsuits as a means of preventing critical coverage of civil rights issues in out-of-state publications. The Supreme Court's decision, and its adoption of the actual malice standard, reduced the financial hazard from potential defamation claims, and thus countered the efforts by public officials to use these claims to suppress political criticism.

LiterallySlanderHat Retweeted:

Since we're on the topic, my guess is that when Kavanaugh joins the court, there will be a solid 4 votes to overturn Times v. Sullivan, which brought the First Amendment into consideration in libel cases involving public officials

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Scalia famously hated the decision, and I have little doubt Thomas and Alito would've joined him in an opinion striking it down.

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We're still waiting for the first time for Gorsuch to vote against the Trump view of the law. And I'm skeptical that Kavanaugh would buck him, Thomas & Alito. Though @popehat is more optimistic about his commitment to classic free speech principles:

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You'll Hate This Post On Brett Kavanaugh And Free Speech
JULY 10, 2018 BY KEN WHITE

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On Kavanaugh, a lot depends on whether you see him more as a GOP political operative or an "umpire," as he calls himself. I'm skeptical that a guy who worked for Ken Starr and the Bush White House can shake the GOP bent. And they despise Times v. Sullivan, dating back to Nixon.

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The dilemma can be seen in two cases in which Kavanaugh applied Times v. Sullivan as precedent while on the D.C. Circuit. See this article from @SCOTUSblog:

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Timothy Zick

Posted Tue, August 7th, 2018 3:49 pm

Judge Kavanaugh and freedom of expression
Timothy Zick is the Mills E. Godwin, Jr., Professor of Law at William & Mary Law School.

{long -- snip -- I will get to this later}

Recommended Citation: Timothy Zick, Judge Kavanaugh and freedom of expression, SCOTUSblog (Aug. 7, 2018, 3:49 PM), http://www.scotusblog.com/2018/08/judge-kavanaugh-and-freedom-of-expression/

Both times, Kavanaugh dismissed defamation cases because plaintiffs failed to meet Sullivan burdens (statement of fact, actual malice). But the plaintiffs weren't the kinds who receive GOP sympathy either; one a prisoner suing the government, the other Mahmoud Abbas' son.

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The good thing is, worst case scenario, Kavanaugh walks away from the free speech principles he espoused on the DC Circuit when it's a plaintiff he sympathizes with, there's still only 4 votes. But that's more than there would've been with Kennedy on the bench.