License to Hunt

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“Judging Reputation: Realism and Common Law in Justice White’s Defamation Jurisprudence” by John C.P. Goldberg, in University of Colorado Law Review (Fall 2003), 290 Fleming Law Bldg., 401 UCB, Boulder, Colo. 80309–0401.

After the First Amendment, there’s no more sacred text in journalism than the Supreme Court’s unanimous 1964 decision in New York Times v. Sullivan. By requiring plaintiffs in certain cases to prove that a defamatory statement had been made with “actual malice”—that is, with knowledge or reckless disregard of its falsity—the Court freed news organizations from having to worry much about libel or slander suits by the public officials they cover.

As Goldberg, a law professor at Vander­bilt University, explains, the Court’s seemingly unstoppable expansion of that privilege in later years led one of Sullivan’s authors, Justice Byron White, to conclude that the ruling ought to be scrapped. White, who served on the Court from 1962 to 1993, joined the Sullivan majority and was one of a bare majority of five justices that three years later extended the Sullivan principle from public officials to “public figures” more generally. That made it harder for movie actors, professional athletes, and other celebrities to sue successfully for libel or slander. But White argued against a further expansion of Sullivan in a 1971 case, and he angrily dissented in a 1974 case in which the Court ruled 5–4 that even private figures had to prove negligence to collect any damages, and actual malice to be eligible for punitive damages. Press freedom, he said, “does not carry with it an unrestricted hunting license to prey on the ordinary citizen.”

White saw Sullivan as granting a limited privilege to foster democratic debate, and he objected to reading into the ruling any broad “free speech” principles, as some justices, leading constitutional scholars, and the press were all inclined to do. Before Sullivan, defamation law had been almost entirely left to state courts and legislatures. White didn’t want the federal government to completely displace state tort law.

He was unimpressed by arguments from Justice Hugo Black and others that freedom of the press required complete immunity from liability for defamation. News reporting, in White’s view, was not so different from other skilled occupations, and ought not be privileged just because it dealt with public issues. Just like bus drivers and judges, reporters should be held to the standard of their craft—and suffer the consequences when they fall short. But White’s views remained distinctly in the minority. When he disavowed the Sullivan principle altogether in a 1984 case, only Chief Justice Warren Burger seemed ready to line up behind him.

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