`
`No. 21-______
`
`================================================================================================================
`
`In The
`Supreme Court of the United States
`
`--------------------------------- ♦ ---------------------------------
`
`CORAL RIDGE MINISTRIES MEDIA, INC., d/b/a
`D. JAMES KENNEDY MINISTRIES,
`
`Petitioner,
`
`v.
`
`SOUTHERN POVERTY LAW CENTER,
`
`Respondent.
`
`--------------------------------- ♦ ---------------------------------
`
`On Petition For A Writ Of Certiorari
`To The United States Court Of Appeals
`For The Eleventh Circuit
`
`--------------------------------- ♦ ---------------------------------
`
`PETITION FOR A WRIT OF CERTIORARI
`
`--------------------------------- ♦ ---------------------------------
`
`JEREMY D. BAILIE
`WEBER, CRABB & WEIN, P.A.
`5453 Central Avenue
`St. Petersburg, Florida 33710
`(727) 828-9919
`Jeremy.Bailie@webercrabb.com
`
`DAVID C. GIBBS, III
`Counsel of Record
`THE NATIONAL CENTER
` FOR LIFE & LIBERTY, INC.
`2648 F. M. 407, Suite 240
`Bartonville, Texas 76226
`(727) 362-3700
`dgibbs@gibbsfirm.com
`
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`QUESTION PRESENTED
`
`
`In New York Times v. Sullivan, this Court upended
`
`common law defamation jurisprudence creating a
`more-often-than-not insurmountable bar for a public
`figure to plead and prove a defamation claim—the
`“actual-malice” standard. The term “public figure” was
`later expanded to explicitly include non-elected public
`officials in Curtis Publishing Co. v. Butts. Since the “ac-
`tual malice” standard, particularly as applied to non-
`elected public officials, conflicts with the correct, origi-
`nal understanding of the First Amendment, this Court
`should untangle defamation claims from the clutches
`of the First Amendment and ensure a public figure’s
`right to assert a common law defamation claim for re-
`dress for reputational harm remains protected.
`
`1. Whether this Court should reconsider Sullivan’s
`“actual-malice” standard or, at a minimum, cabin
`Sullivan’s “actual malice” standard to speech con-
`cerning public officials and be eliminated alto-
`gether for private public figures.
`
`
`
`ii
`
`PARTIES TO THE PROCEEDING
`
`
`Petitioner is Coral Ridge Ministries Media, Inc.,
`
`d/b/a D. James Kennedy Ministries. Petitioner was
`plaintiff in the district court and plaintiff-appellant in
`the court of appeals. Petitioner has no parent corpora-
`tion and no publicly held company owns 10% or more
`of Petitioner’s stock.
`
`Respondent is Southern Poverty Law Center
`
`(“SPLC”). Respondent was defendant in the district
`court and defendant-appellee in the court of appeals.
`
`
`
`iii
`
`RELATED PROCEEDINGS
`
`
`This case arises from the following lower court
`
`proceedings:
`
`• Coral Ridge Ministries Media, Inc., d/b/a D. James
`Kennedy Ministries v. Amazon.com, Inc., et al.,
`No. 19-14125 (11th Cir.) (opinion affirming judg-
`ment of district court, issued July 28, 2021) (re-
`ported at 6 F.4th 1247);
`
`• Coral Ridge Ministries Media, Inc., d/b/a D. James
`Kennedy Ministries v. Amazon.com, Inc., et al.,
`No. 2:17-cv-566-MHT (N.D. Ala.) (order adopting
`report and recommendation and granting the mo-
`tions to dismiss, filed September 19, 2019 (re-
`ported at 406 F.Supp.3d 1258); and
`
`• Coral Ridge Ministries Media, Inc., d/b/a D. James
`Kennedy Ministries v. Amazon.com, Inc., et al.,
`No. 2:17-cv-566-MHT (N.D. Ala.) (report and rec-
`ommendation recommending the district court
`grant the motions to dismiss, filed February 21,
`2018) (unreported, available at 2018 WL 4697073).
`
`There are no other proceedings in state or federal
`
`trial or appellate courts, or in this Court, directly re-
`lated to this case within the meaning of this Court’s
`Rule 14.1(b)(iii).
`
`
`
`iv
`
`TABLE OF CONTENTS
`
`Page
`QUESTION PRESENTED...................................
`i
`PARTIES TO THE PROCEEDING ......................
`ii
`RELATED PROCEEDINGS ................................
`iii
`TABLE OF CONTENTS ......................................
`iv
`TABLE OF AUTHORITIES ................................. vi
`PETITION FOR REVIEW ...................................
`1
`OPINIONS BELOW .............................................
`1
`JURISDICTION ...................................................
`1
`CONSTITUTIONAL PROVISIONS INVOLVED ....
`2
`STATEMENT OF THE CASE..............................
`2
` A. Factual Background ..................................
`3
` B. Procedural History ....................................
`5
`REASONS FOR GRANTING THE PETITION .....
`7
`
`I. SULLIVAN HAS BEEN RIGHTLY CRIT-
`ICIZED FOR ITS UNINTENDED CON-
`SEQUENCES AND
`ITS
`SHAKY
`CONSTITUTIONAL UNDERPINNINGS .... 10
`A. Sullivan’s Disastrous Practical Effects
`Should be Enough for This Court to
`Reconsider its Decision ....................... 11
`B. Sullivan’s Actual-Malice Test Finds
`No Support in Either the Text or His-
`torical Understanding of the Constitu-
`tion ....................................................... 21
`
`
`
`v
`
`TABLE OF CONTENTS—Continued
`
`Page
`in the
`C. The Ministry’s Experience
`Courts Below is the Perfect Example
`of Sullivan’s Dark Side ....................... 25
` II. THIS CASE IS AN EXCELLENT VEHICLE
`FOR RECONSIDERING SULLIVAN .......... 26
`CONCLUSION ..................................................... 28
`
`APPENDIX
`United States Court of Appeals for the Eleventh
`Circuit, Opinion, Filed Jul. 28, 2021 ............... App. 1
`United States District Court for the Middle
`District of Alabama, Opinion, Filed Sep. 19,
`2019 ................................................................ App. 16
`United States District Court for the Middle
`District of Alabama, Judgment, Filed Sep. 19,
`2019 .............................................................. App. 110
`United States District Court for the Middle
`District of Alabama, Report and Recommen-
`dation, Filed Feb. 21, 2018 ........................... App. 112
`
`
`
`
`
`vi
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Beauharnais v. People of State of Ill., 343 U.S.
`250, 72 S. Ct. 725, 96 L. Ed. 919 (1952) .................. 23
`Berisha v. Lawson, 141 S. Ct. 2424 (2021) ... 3, 20, 22, 27
`Blevins v. W.F. Barnes Corp., 768 So. 2d 386 (Ala.
`Civ. App. 1999) ......................................................... 25
`Chaplinsky v. State of New Hampshire, 315 U.S.
`568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942) ................ 23
`Coughlin v. Westinghouse Broad. & Cable, Inc.,
`476 U.S. 1187, 106 S. Ct. 2927, 91 L. Ed. 2d
`554 (1986) ................................................................ 13
`Coughlin v. Westinghouse Broad. & Cable, Inc.,
`780 F.2d 340 (3d Cir. 1985) ..................................... 14
`Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S. Ct.
`1975, 18 L. Ed. 2d 1094 (1967) ............................... 12
`Dun & Bradstreet, Inc. v. Greenmoss Builders,
`Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d
`593 (1985) .......................................................... 12, 13
`Fed. Election Comm’n v. Wisconsin Right To
`Life, Inc., 551 U.S. 449, 127 S. Ct. 2652, 168
`L. Ed. 2d 329 (2007) .................................................. 8
`Gaither v. Advertiser Co., 102 Ala. 458 (Ala.
`1893) ........................................................................ 25
`Garrison v. State of La., 379 U.S. 64, 85 S. Ct.
`209, 13 L. Ed. 2d 125 (1964) ................................... 12
`
`
`
`vii
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Janus v. Am. Fed’n of State, Cty., & Mun. Emps.,
`Council 31, 138 S. Ct. 2448, 201 L. Ed. 2d 924
`(2018) ......................................................................... 8
`McKee v. Cosby, 139 S. Ct. 675, 203 L. Ed. 2d 247
`(2019) ............................................................. 3, 19, 27
`Near v. State of Minnesota ex rel. Olson, 283 U.S.
`697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931) ................ 16
`New York Times Co. v. Sullivan, 376 U.S. 254, 84
`S. Ct. 710, 11 L. Ed. 2d 686 (1964) ................. passim
`Ripps v. Herrington, 241 Ala. 209 (Ala. 1941) ............ 25
`Roth v. United States, 354 U.S. 476, 77 S. Ct.
`1304, 1 L. Ed. 2d 1498 (1957) ................................. 23
`Shelby Cty., Ala. v. Holder, 570 U.S. 529, 133
`S. Ct. 2612, 186 L. Ed. 2d 651 (2013) ....................... 9
`St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct.
`1323, 20 L. Ed. 2d 262 (1968) ................................. 12
`Tah v. Global Witness Publishing, Inc., 991 F.3d
`231 (D.C. Cir. 2021) ........................................... 20, 27
`Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17
`L. Ed. 2d 456 (1967) ................................................ 12
`Whitney v. California, 274 U.S. 357, 47 S. Ct.
`641, 71 L. Ed. 1095 (1927) ...................................... 21
`
`
`CONSTITUTIONAL PROVISIONS
`U.S. Const. amend. I ........................................... passim
`
`
`
`
`
`viii
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`STATUTES
`28 U.S.C. § 1254(1) ........................................................ 1
`28 U.S.C. § 1367 ............................................................ 7
`
`OTHER AUTHORITIES
`Attorney General Sessions, Attorney General
`Jeff Sessions Delivers Remarks at the Alliance
`Defending Freedom’s Summit on Religious
`Liberty (Aug. 8, 2018) (transcript available at
`https://www.justice.gov/opa/speech/attorney-
`general-jeff-sessions-delivers-remarks-alliance-
`defending-freedoms-summit) (last visited No-
`vember 22, 2021) ....................................................... 5
`Charlie Rose, Antonin Scalia Interview (Nov. 27,
`2012), https://charlierose.com/videos/17653 (last
`visited October 29, 2021) ........................................ 19
`Kagan, Elena A., A Libel Story: Sullivan Then
`and Now (reviewing Anthony Lewis, Make No
`Law: The Sullivan Case and the First Amend-
`ment (1991)), 18 Law and Social Inquiry 197
`(1993) ............................................... 10, 11, 15, 17, 18
`Langworth, Richard M., Galloping Lies, Body-
`guards of Lies, and Lies for the Sake of Your
`Country, September 30, 2020, available at
`(https://richardlangworth.com/galloping-lies)
`(last accessed November 19, 2021) ........................... 9
`
`
`
`
`
`
`ix
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Lewis & Ottley, John Bruce Lewis & Bruce L.
`Ottley, New York Times v. Sullivan at 50: De-
`spite Criticism, the Actual Malice Standard
`Still Provides “Breathing Space” for Commu-
`nications in the Public Interest, 64 DePaul L.
`Rev. 1 (2014) ............................................................ 19
`Richard A. Epstein, Was New York Times v. Sul-
`livan Wrong?, 53 U. Chi. L. Rev. 782 (1986)...... 14, 15
`Ronald Reagan Presidential Library and Mu-
`seum, John G. Roberts Collection, Box 66,
`Libel Laws (available at https://www.reagan
`library.gov/public/digitallibrary/smof/counsel/
`roberts/box-066/40_485_6909456_066_004_
`2017.pdf ) (last visited November 21, 2021) ......... 14
`
`
`
`1
`
`PETITION FOR REVIEW
`
`Petitioner, Coral Ridge Ministries Media, Inc.,
`
`d/b/a D. James Kennedy Ministries (the “Ministry”),
`respectfully petitions for a writ of certiorari to review
`the judgment of the Eleventh Circuit in this case.
`--------------------------------- ♦ ---------------------------------
`
`OPINIONS BELOW
`
`The judgment of the court of appeals is reported at
`
`6 F.4th 1247. (App. at 1). The opinion of the district
`court is reported at 406 F.Supp.3d 1258. (App. at 16).
`The report and recommendation of the magistrate
`judge is unreported but is available at 2018 WL
`4697073. (App. at 112).
`--------------------------------- ♦ ---------------------------------
`
`JURISDICTION
`
`The Eleventh Circuit entered judgment on July
`
`28, 2021. (App. at 1). This Court previously extended
`the deadline for Petitioner to file this Petition for Writ
`of Certiorari. The jurisdiction of this Court is invoked
`under 28 U.S.C. § 1254(1).
`--------------------------------- ♦ ---------------------------------
`
`
`
`
`
`
`2
`
`CONSTITUTIONAL PROVISIONS INVOLVED
`
`The First Amendment to the Constitution of the
`
`United States provides:
`
`Congress shall make no law respecting an es-
`tablishment of religion, or prohibiting the free
`exercise thereof; or abridging the freedom of
`speech, or of the press, or the right of the peo-
`ple peaceably to assemble, and to petition the
`Government for a redress of grievances.
`--------------------------------- ♦ ---------------------------------
`
`STATEMENT OF THE CASE
`
`This petition presents an important question this
`
`Court has struggled with for the better part of fifty
`years: Is it time to reconsider Sullivan and the actual
`malice standard it imposes on every public figure and,
`sometimes, non-public figures that happen to be thrust
`into the limelight? The answer to that question is re-
`soundingly “yes.” Constrained by this Court’s opinion
`in Sullivan and its progeny, the Magistrate Judge, Dis-
`trict Court, and Eleventh Circuit below absolved Re-
`spondent of any liability for its intentional impugning
`the Ministry’s name and reputation in the public square.
`
`This Court’s “actual-malice” standard, invented for
`
`a particular time and a particular purpose, has become
`obsolete and does not serve any of the interests it was
`designed to protect by limiting private individuals
`from bringing defamation claims against other private
`companies or individuals. Sullivan’s near-absolute-
`prohibition on public officials bringing libel claims
`
`
`
`3
`
`cannot trace its roots to the Founding, and its exten-
`sion to every public figure is fundamentally untethered
`from the original understanding of the First Amend-
`ment. Today, Sullivan no longer acts as a bulwark to
`protect civil rights. Instead of the shield it was de-
`signed to be, it is now a sword used to bludgeon public
`figures with impunity while hiding behind this Court’s
`mistaken view of the First Amendment.
`
`Since 1964, nearly a dozen members of this Court
`
`have questioned various aspect of Sullivan and its vi-
`ability. Most recently, Justice Thomas pointedly criti-
`cized its “policy-driven decision[ ] masquerading as
`constitutional law.” McKee v. Cosby, 139 S. Ct. 675, 203
`L. Ed. 2d 247 (2019) (Thomas, J., dissenting). And Jus-
`tice Gorsuch “add[ed] [his] voice” to the now-choir of
`voices calling on the Court to “return[ ] its attention . . .
`to a field so vital to the ‘safe deposit’ of our liberties.”
`Berisha v. Lawson, 141 S. Ct. 2424, 2430 (2021) (Gor-
`such, J., dissenting). This case presents this Court that
`opportunity.
`
`
`
`A. Factual Background
`
`This case was resolved by the District Court and
`
`the Eleventh Circuit at the motion to dismiss stage
`limiting the facts of this case to the Ministry’s well-
`pleaded factual allegations. Relevant to this Court’s
`consideration, the facts are straightforward.
`
`The Ministry is a not-for-profit Christian minis-
`
`try that primarily exists to broadcast Truths That
`Transform, a television program that airs the
`
`
`
`4
`
`previously-recorded messages of its (now-deceased)
`founder, Dr. D. James Kennedy. (App. at 19–20). In fact,
`since much of the Ministry’s work consists of rebroad-
`casting programs recorded before Dr. Kennedy’s death,
`the message cannot have changed since his death.
`These messages are faith based and are based in Dr.
`Kennedy’s beliefs and the Bible’s teachings. (App. at
`20).
`
`SPLC declared to the world the Ministry is to be
`
`considered a “hate group” because of these religious
`teachings by Dr. Kennedy. (App. at 21). SPLC made
`this determination and published its “hate group” des-
`ignation of the Ministry on its “Hate Map.”1 (App. at
`20–21). In addition to its website, SPLC also widely
`distributed this “hate group” designation to third par-
`ties in fundraising materials, direct mail solicitations,
`publications, and training programs. (App. at 20–21).
`SPLC intended for its readers to rely on this infor-
`mation as a statement of fact. And SPLC publicly
`stated its aim is to “completely destroy” the groups it
`has listed on its Hate Map. See n.1, supra.
`
`For some of the groups listed, there is good reason
`
`to wish their end. To put this designation in context,
`SPLC associated the Ministry with real hate groups
`like the Ku Klux Klan, white nationalists, and the
`neo-Nazi movement—groups that have been associ-
`ated with and have well-documented histories of hor-
`rific violence and true acts of hate. There are no facts
`
`
`1 SPLC’s “Hate Map” is located on its website. https://www
`
`.splcenter.org/hate-map. (App. at 44).
`
`
`
`5
`
`(nor does SPLC include any on its “hate map”) that could
`ever bring the Ministry within the “hate group” defini-
`tion. Indeed, SPLC’s broad brush wrongfully paints the
`Ministry in a horrible light leaving the “hate map”
`readers with the impression the Ministry participates
`in acts of hate like the KKK and neo-Nazis. Nothing
`could be further from the truth. Declaring a Christian
`ministry, that exists to serve its community and share
`the love of Jesus with the world, to be a hate group
`constitutes libel per se under Alabama law. (App. at 19).2
`
`
`
`B. Procedural History
`
`The Ministry filed its Complaint in the Northern
`
`District of Alabama against SPLC. Not relevant here,
`the Ministry brought additional claims against Guide-
`Star USA, Amazon.com, Inc. and the AmazonSmile
`Foundation (the “Amazon Defendants”). (App. at 117).
`Thereafter, the Ministry filed its First Amended Com-
`plaint alleging its common law defamation claims
`against SPLC and related claims against the Amazon
`Defendants for its acts against the Ministry in reli-
`ance on SPLC’s hate group designation. (App. at 117).
`
`
`
`2 In 2018, Attorney General Sessions ordered the Depart-
`
`ment of Justice to review (and potentially cease) its partnerships
`with Respondent due to its “hate group” designations that “un-
`fairly defame Americans for standing up for the Constitution or
`their faith.” Attorney General Sessions, Attorney General Jeff
`Sessions Delivers Remarks at the Alliance Defending Freedom’s
`Summit on Religious Liberty (Aug. 8, 2018) (transcript available
`at https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-
`delivers-remarks-alliance-defending-freedoms-summit) (last vis-
`ited November 22, 2021).
`
`
`
`6
`
`Both SPLC and the Amazon Defendants filed motions
`to dismiss the First Amended Complaint. (App. at 113).
`The District Court referred the motions to Magistrate
`Judge David A. Baker, who issued a Report and Rec-
`ommendation recommending both motions be granted
`and the case by dismissed with prejudice. (App. at 113–
`14). The Ministry timely objected to the Magistrate’s
`Report and Recommendation, and the District Court
`heard argument of counsel on the motions to dismiss
`on May 29, 2018. Thereafter, the District Court entered
`its Order granting the motions to dismiss and entering
`judgment for SPLC and the Amazon Defendants. (App.
`at 17).
`
`Relevant here, the Magistrate Judge’s and District
`
`Court’s analyses of the Ministry’s defamation claim
`against SPLC began and ended with Sullivan. (App. at
`23, 121). Specifically, the District Court began by ex-
`plaining the near-insurmountable hurdle the Ministry
`must clear: the Ministry must “plausibly allege” the de-
`famatory statement was: (1) provable as false; (2) actu-
`ally false; and (3) made with actual-malice. (App. at 23)
`(quoting New York Times Co. v. Sullivan, 376 U.S. 254,
`280, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)). Ultimately,
`the District Court concluded the Ministry did not com-
`plete the herculean effort. (App. at 44–45). The District
`Court rejected some of the Ministry’s allegations as
`“conclusory” and determined the complaint lacked
`“plausible” allegations of SPLC’s internal, subjective
`knowledge that its “hate group” designation of the
`Ministry was false. (App. at 44).
`
`
`
`7
`
`Also applying Sullivan, the Eleventh Circuit con-
`
`cluded the courthouse doors were slammed shut on
`the Ministry. (App. at 6). The Eleventh Circuit, with
`the assistance of oral argument, affirmed the district
`court’s opinion on July 28, 2021. (App. at 1). This
`Court’s “actual-malice” standard had another victim.
`The Eleventh Circuit summed up its conclusion as to
`the claims against SPLC: “Because we agree that Coral
`Ridge failed to adequately plead actual malice, we af-
`firm the dismissal of Coral Ridge’s defamation claim.”
`(App. at 6). Such was the sole basis for its affirming
`the District Court’s dismissal—this Court’s “actual-
`malice” standard that is presented for review in this
`Petition.
`
`The District Court exercised jurisdiction in this
`
`matter under 28 U.S.C. § 1367 as the state law claims
`(common law defamation) were supplemental to the
`Ministry’s federal law claims under Title II and the
`Lanham Act. (App. at 17). The District Court also had
`jurisdiction over the common law defamation claims
`under § 1332 as the parties are completely diverse and
`the amount in controversy exceeds $75,000. (App. at
`17).
`
`--------------------------------- ♦ ---------------------------------
`
`REASONS FOR GRANTING THE PETITION
`
`Sullivan and its warts are no surprise to the mem-
`
`bers of this Court. The flaws in its reasoning and its
`primary criticisms are discussed below explaining why
`this Court should reconsider (or, at a minimum, cabin)
`
`
`
`8
`
`its holding. More importantly, Sullivan was a results-
`oriented decision and made out of whole cloth a stand-
`ard for public official and public figure defamation that
`was not in place at the time of the Founding nor would
`have it been understood by those of the Founding-era
`as implicit in the protections of the First Amendment.
`This Petition presents a clean opportunity for this
`Court to reconsider Sullivan and it should take that
`opportunity.
`
`“‘This Court has not hesitated to overrule deci-
`
`sions offensive to the First Amendment (a fixed star in
`our constitutional constellation, if there is one).’” Janus
`v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31,
`138 S. Ct. 2448, 2478, 201 L. Ed. 2d 924 (2018) (quot-
`ing Fed. Election Comm’n v. Wisconsin Right To Life,
`Inc., 551 U.S. 449, 500, 127 S. Ct. 2652, 168 L. Ed. 2d
`329 (2007) (Scalia, J., concurring in part and concur-
`ring in judgment)). Often, when asked to reconsider
`one of this Court’s precedents that has had an outsized
`impact in a particular field for fifty years, stare decisis
`cautions against taking that opportunity. And for good
`reason. Decisions of this Court should be long-lasting
`and because that is the case this Court brings stability
`and predictability to the law.
`
`But those concerns are not present here. Despite
`
`its age, Sullivan has not stood the test of time and is
`not to be celebrated as landmark constitutional guide-
`posts like Marbury v. Madison, Gideon v. Wainwright,
`and those like it. The principles of stare decisis are not
`in opposition to reconsidering Sullivan. For instance,
`setting aside for the moment whether it was correctly
`
`
`
`9
`
`decided, unlike many instances where this Court is
`asked to reconsider its prior jurisprudence and must
`account for significant reliance interest, such is not
`present here. Any reliance interest would only be those
`who, by definition, had published false, defamatory
`statements. A consideration this Court can easily dis-
`pense with leaving this Court with the real question:
`Is now the time to reconsider Sullivan?
`
`Our county is experiencing an era of unrivaled
`
`lows in the quality of public discourse coupled with the
`fact a lie “will gallop halfway round the world before
`the truth has time to pull its breeches on.”3 Not to men-
`tion the fact anyone with a cell phone and an internet
`connection can become a publisher and broadcast any
`message to the world—whether true or not. It is diffi-
`cult to imagine a better time for this Court to read-
`dress the limits of Sullivan.
`
`As the Court explained in Shelby County, an un-
`
`common exercise of this Court’s substantial judicial
`power that alters the state-federal balance may be jus-
`tified by “exceptional conditions” but that exercise of
`power must also change with the times and cannot
`simply justify its continued existence on the way
`things were in the past. Shelby Cty., Ala. v. Holder, 570
`U.S. 529, 549, 553, 133 S. Ct. 2612, 186 L. Ed. 2d 651
`(2013) (tracing the history of the Voting Rights Act and
`limiting its expansive congressional oversight of a
`
`3 Langworth, Richard M., Galloping Lies, Bodyguards of
`
`Lies, and Lies for the Sake of Your Country, September 30, 2020,
`available at (https://richardlangworth.com/galloping-lies) (last
`accessed November 19, 2021).
`
`
`
`10
`
`traditionally state function—elections). While Sulli-
`van may have been appropriate for a season. Seasons
`change. And the time for Sullivan to fade into the
`annals of history has come.
`
`
`I. SULLIVAN HAS BEEN RIGHTLY CRITICIZED
`FOR ITS UNINTENDED CONSEQUENCES
`AND ITS SHAKY CONSTITUTIONAL UN-
`DERPINNINGS
`
`At the time it was decided, Sullivan was warmly
`
`received since many saw the Court’s decision as an im-
`portant tool in protecting Civil Rights in the South.4 In
`fact, some saw the Court’s opinion as the last line of
`defense against an onslaught of enormous verdicts
`(and pending libel actions) against Northern newspa-
`pers and media companies aimed to shut out those that
`had the courage to speak about the atrocities being
`committed against Southern African-Americans. Ka-
`gan, Elena A., A Libel Story: Sullivan Then and Now
`(reviewing Anthony Lewis, Make No Law: The Sullivan
`
`4 As then-Professor Kagan explained, the verdict in New
`
`York Times carried a particular stench of injustice because of the
`circumstances surrounding the verdict. A Libel Story, at p. 202.
`Sullivan’s trial judge, Judge Walter Burgwyn Jones (a confeder-
`ate sympathizer and believer in “white man’s justice”) presided
`over the trial, seated an all-white jury in a racially segregated
`courtroom, and found for Sullivan on every significant ruling. Id.
`Even worse, Sullivan was just the tip of the iceberg. Id. There was
`a coordinated campaign in the South to devastate the Northern
`press’ ability to shed light on the atrocities being committed in
`the South seeking a combined $300 million in libel damages. Id.
`And if Sullivan had gone the other way, the coordinated effort
`likely would have succeeded. Id. at 200-01.
`
`
`
`11
`
`Case and the First Amendment (1991)), 18 Law and So-
`cial Inquiry 197, 202–03 (1993) (hereinafter referred to
`as “A Libel Story”).
`
`Beginning with lofty goals (protecting Civil Rights
`
`and the freedom of the press and individuals to speak
`out against elected officials’ wrongdoing), the Warren
`Court’s purposivist leanings were on full display in
`Sullivan. The Court worked its way backwards to its
`ultimate decision: effectively eliminating a cause of ac-
`tion for libel against a public official. Sullivan’s prog-
`eny expanded that well-meaning goal far beyond its
`roots and ultimately federalized much of the common
`law tort of defamation.
`
`The whispers of opposition to Sullivan after its
`
`inception have now grown into a deafening roar. Its
`criticism has generally fallen into two camps: (1) con-
`cerns over its practical implications and the virtual
`immunity it gives media companies and the impact
`that license has had on society and public discourse;
`and (2) Sullivan’s doctrinal shortcomings and the
`Court’s failure to ground its analysis in either the text
`or the original understanding of the First Amend-
`ment.
`
`
`
`A. Sullivan’s Disastrous Practical Effects
`Should be Enough for This Court to Re-
`consider its Decision
`
` With the passage from the Warren Court to the
`Burger Court, a shift in Sullivan’s support began to
`make its way through the Court. Since Sullivan’s
`
`
`
`12
`
`inception, nearly a dozen justices of this Court have
`expressed concern with its onerous standard and its
`slamming shut the courthouse doors on legitimate
`claims of reputational harm. And leading constitu-
`tional scholars have joined in the criticism.
`
`Justice White, who joined the Court’s opinion in
`
`Sullivan, and some of its progeny,5 came to appreciate
`its disservice to the First Amendment. Dun & Brad-
`street, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,
`767, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985) (White, J.,
`concurring in judgment). Justice White explained his
`conversion. This Court “struck an improvident bal-
`ance” between protecting the public’s right to speak
`(and hear speech) about public officials and “the com-
`peting interest of those who have been defamed in vin-
`dicating their reputation.” Id. Even in its short history,
`Sullivan had already begun to wreak havoc. Justice
`White explained the problem:
`
`[I]n New York Times cases, the public official’s
`complaint will be dismissed unless he alleges
`and makes out a jury case of a knowing or
`reckless falsehood. Absent such proof, there
`
`
`5 Justice White joined Sullivan and also joined (or wrote)
`
`some of its progeny, including, Curtis Pub. Co. v. Butts, 388 U.S.
`130, 155, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967) (expanding ap-
`plication of Sullivan’s actual malice rule to public figures that are
`not public officials); Time, Inc. v. Hill, 385 U.S. 374, 398, 87 S. Ct.
`534, 17 L. Ed. 2d 456 (1967) (expanding application to claims
`against publisher for invasion of right of privacy); Garrison v.
`State of La., 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964)
`(striking down Louisiana criminal libel statute); St. Amant v.
`Thompson, 390 U.S. 727, 728, 88 S. Ct. 1323, 20 L. Ed. 2d 262
`(1968); among others.
`
`
`
`13
`
`will be no jury verdict or judgment of any kind
`in his favor, even if the challenged publication
`is admittedly false. The lie will stand, and the
`public continue to be misinformed about pub-
`lic matters. This will recurringly happen be-
`cause the putative plaintiff ’s burden is so
`exceedingly difficult to satisfy and can be dis-
`charged only by expensive litigation. Even if
`the plaintiff sues, he frequently loses on sum-
`mary judgment or never gets to the jury be-
`cause of insufficient proof of malice. If he wins
`before the jury, verdicts are often overturned
`by appellate courts for failure to prove malice.
`Furthermore, when the plaintiff loses, the
`jury will likely return a general verdict and
`there will be no judgment that the publication
`was false, even though it was without founda-
`tion in reality. The public is left to conclude
`that the challenged statement was true after
`all. Their only chance of being accurately in-
`formed is measured by the public official’s
`ability himself to counter the lie, unaided by
`the courts.
`
`Id. at 768.
`
`Although Chief Justice Burger expressed his
`
`agreement with Justice White’s concurrence in Dun &
`Bradstreet, Inc.,6 his full-throated demand for Sulli-
`van to be reconsidered came the following term in
`Coughlin v. Westinghouse Broad. & Cable, Inc., 476 U.S.
`1187, 1188, 106 S. Ct. 2927, 91 L. Ed. 2d 554 (1986)
`
`6 Dun & Bradstreet, Inc., 472 U.S. at 764 (Burger, C.J, con-
`
`curring) (recognizing Gertz should be overturned and agreeing
`with Justice White’s criticism of NYT v. Sullivan).
`
`
`
`14
`
`(Burger, C.J., dissenting from denial of certiorari).
`Chief Justice Burger and then-Associate Justice
`Rehnquist observed Sullivan, in practice, “constitu-
`tionally barr[s]” an individual from clearing her or his
`name in a court of law when it has been sullied in the
`court of public opinion by a false accusation of miscon-
`duct. Id. And Sullivan’s standard protects even “egre-
`gious conduct on the part of the media.” Id. (quoting
`Coughlin v. Westinghouse Broad. & Cable, Inc., 780
`F.2d 340 (3d Cir. 1985) (Becker, J.)).
`
`At this same time, members of the Court were not
`
`the only legal minds wrestling with this issue. Across
`the street, members of Congress were concerned with
`the impact a reversal of Sullivan would have on media
`defendants and the White House was asked to wade
`into the “raging debate.”7 President Reagan’s counselors,
`in response to correspondence from then-Representative
`Charles Schumer, advised caution from entering into
`the “raging debate” regarding the “near-impossibility
`of prevailing under the New York Times” actual malice
`standard. Id.
`
`Professor Richard Epstein did not hesitate to jump
`
`into that raging debate.8 Anywhere but 1960s deep-
`South Alabama, Sullivan’s claims would have faced a
`
`
`7 Ronald Reagan Presidential Library and Museum, John G.
`
`
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