Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan DAVID A. LOGAN “I think it is time for a modern War against Error. A deliberately heightened battle against cultivated ignorance, enforced silence, and metastasizing lies.” – Toni Morrison, The War on Error (2019) TABLE OF CONTENTS I. INTRODUCTION ............................................................................ 760 II. THE MAKING OF A SEMINAL DECISION ........................................ 763 A. Defending White Supremacy by Attacking the Messenger ............................................................................. 763 B. Forging a New Understanding of the First Amendment ............................................................................ 767 III. WHAT NEW YORK TIMES DID (AND WHAT IT COULD HAVE DONE) ................................................................................ 774 A. Changes to the Substantive Law of Defamation ................... 774 1. The Flawed “Actual Malice” Standard .......................... 776 2. The Excessive Sweep of the “Actual Malice” Requirement .................................................................... 784 B. Changes to the Remedies for Defamation ............................. 786 C. Changes to Procedural Defamation Law ............................. 789 IV. THE CHANGED PUBLIC SQUARE ................................................... 793 V. CURRENT DATA ON LIBEL LITIGATION ........................................ 807 VI. RECONSIDERING NEW YORK TIMES ............................................... 810 VII. CONCLUSION ................................................................................ 813 Professor of Law, Roger Williams University, serves as Adviser to the Restatement of Torts (Third): Defamation and Privacy project. Many thanks to David Anderson, Susan Gilles, Justin Kishbaugh, Wayne Logan, C.J. Ryan, and Jeanne Wine for helpful comments on earlier drafts and to Cayman Calabro, Phillip Gasbarro, Katelyn Kalmbach, and Amanda Wuoti for their research assistance, as well as to David Anderson for his thoughtful response to my work, found at David A. Anderson, Second Thoughts: A Response to David A. Logan’s Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan, OHIO ST. L.J. ONLINE (forthcoming 2020). This piece is dedicated to Professors Lillian BeVier and John Jeffries, who sparked my interest in New York Times v. Sullivan and, more importantly, urged me to question conventional wisdom. 760 OHIO STATE LAW JOURNAL [Vol. 81:5 I. INTRODUCTION Our democracy is in trouble, awash in an unprecedented number of lies— some spewed by foreign enemies targeting our electoral processes,1 others promoted by our leaders,2 and millions upon millions spread by shadowy sources on the internet and, especially, via social media.3 Chief Justice John Roberts recently warned that “[i]n our age . social media can instantly spread rumor and false information on a grand scale,” causing harm to our democracy.4 The internet has become our “public square,”5 something beyond the 1 See Ellen Nakashima, Senate Committee Unanimously Endorses Spy Agencies’ Finding that Russia Interfered in 2016 Presidential Race in Bid to Help Trump, WASH. POST (Apr. 21, 2020), https://www.washingtonpost.com/national-security/senate-committee- unanimously-endorses-spy-agencies-finding-that-russia-interfered-in-2016-presidential- race-in-bid-to-help-trump/2020/04/21/975ca51a-83d2-11ea-ae26-989cfce1c7c7_story.html [https://perma.cc/AYX4-ECHG]. The threat continues for the 2020 elections. The U.S. intelligence community’s top election security official recently acknowledged that “Russia is using a range of measures to primarily denigrate former Vice President Biden,” and that “some Kremlin-linked actors are also seeking to boost President Trump’s candidacy on social media and Russian television.” Max Boot, A Damning New Article Reveals How Trump Enables Russian Election Interference, WASH. POST (Aug. 8, 2020), https://www.washingtonpost.com/opinions/2020/08/08/russia-is-interfering-our-elections- again-trump-wont-let-intelligence-community-say-so/ [https://perma.cc/794R-7MLW]. 2 In his first 1,226 days in office President Trump made 19,127 false or misleading claims, an average of over 15 per day. Glenn Kessler, Salvador Rizzo & Meg Kelly, President Trump Made 19,127 False or Misleading Claims in 1,226 Days, WASH. POST (June 1, 2020), https://www.washingtonpost.com/politics/2020/06/01/president-trump- made-19127-false-or-misleading-claims-1226-days/ [https://perma.cc/8EG5-VU52]. He managed to include four in a single sentence. Daniel Dale, Fact Check: Trump Makes Four False Claims in One Sentence, CNN (Sept. 14, 2020), https://www.cnn.com/2020/09/14/ politics/fact-check-trump-mccabe-clinton-mcauliffe/index.html [https://perma.cc/6CDC- 6KJR]. Tracking the President’s falsehoods has become a bit of a parlor game. See, e.g., Tom Toles, Time to Stop Counting Trump’s Lies. We’ve Hit the Total for ‘Compulsive Liar.’, WASH. POST (Sept. 13, 2018), https://www.washingtonpost.com/news/opinions/wp/2018/ 09/13/time-to-stop-counting-trumps-lies-weve-hit-the-total-for-compulsive-liar/ [https://per ma.cc/BK5C-QXWG]. 3 See Graham Daseler, The Internet’s Web of Lies, AM. CONSERVATIVE (Aug. 1, 2019), https://www.theamericanconservative.com/articles/the-internets-web-of-lies/ [https://perma.cc/ 4SMC-QK6U] (“Facebook has 200 million monthly users in the United States . In a single minute, the site receives 500,000 new comments, 293,000 new statuses, and 450,000 new photos. In the same amount of time, 400 hours of video are uploaded to YouTube, and 300,000 tweets are posted to Twitter.”); see also Soroush Vosoughi, Deb Roy & Sinan Aral, The Spread of True and False News Online, SCI. (Mar. 9, 2018), https://science.science mag.org/content/359/6380/1146 [https://perma.cc/6LAV-XQZE] (analysis of Twitter postings from 2006–17 showed that false news reached many more people than the truth and also diffused faster than the truth). 4 See JOHN G. ROBERTS, JR., 2019 YEAR-END REPORT ON THE FEDERAL JUDICIARY 1, 2 (Dec. 2019), https://www.supremecourt.gov/publicinfo/year-end/2019year-endreport.pdf [https://perma.cc/D55R-AZXJ]. 5 Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). 2020] RETHINKING NEW YORK TIMES CO. V. SULLIVAN 761 imagination of the Supreme Court when it issued its groundbreaking 1964 decision in New York Times Co. v. Sullivan.6 New York Times involved defamation, a narrow pocket of state tort law,7 but the decision has come to be regarded as a signature accomplishment of the Warren Court8 and essential to the modern understanding of the First Amendment.9 The case is routinely described as “seminal”10 and “iconic”11 and is cited with favor by Justices across the ideological spectrum.12 Most importantly, New York Times defanged defamation law, recognizing that our democracy needs to protect even speech that is false.13 But with more than half a century of perspective, it is now clear that the Court’s constraints on defamation law have facilitated a miasma of misinformation that harms democracy by making it more difficult for citizens to become informed voters.14 The time has come to ask a once heretical question: “What if New York Times got it wrong?” This Article assesses New York Times in light of a public square radically different than that familiar to the justices a half century ago. The internet and especially social media have deeply eroded the influence of traditional media.15 6 See generally N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). 7 Dean William Prosser regarded New York Times as “unquestionably the greatest victory won by . defendants in the modern history of the law of torts.” WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS 819 (4th ed. 1971); see R. Perry Sentelle, Jr., Torts in Verse: The Foundational Cases, 39 GA. L. REV. 1197, 1202, 1397 (2005) (stating that New York Times is one of “the truly foundational cases ordinarily studied in first year Torts”). 8 See, e.g., Lillian R. BeVier, Intersection and Divergence: Some Reflections on the Warren Court, Civil Rights, and the First Amendment, 59 WASH. & LEE L. REV. 1075, 1075 (2002) (opining that New York Times is “the Warren Court’s most notable First Amendment case”); Erwin Chemerinsky, False Speech and the First Amendment, 71 OKLA. L. REV. 1, 6 (2018) (opining that New York Times was “one of the most important free speech decisions of all time”). 9 See, e.g., LEE C. BOLLINGER, UNINHIBITED, ROBUST, AND WIDE-OPEN: A FREE PRESS FOR A NEW CENTURY 14 (2010) (calling New York Times “[o]ne of the most important First Amendment decisions in the twentieth century, and perhaps of all time”); Floyd Abrams, In Memoriam: William J. Brennan, Jr., 111 HARV. L. REV. 18, 21 (1997) (noting that New York Times “is the quintessential First Amendment ruling in our history”). 10 Jud Campbell, The Invention of First Amendment Federalism, 97 TEX. L. REV. 517, 567 (2019); Wendy Gerwick Couture, The Collision Between the First Amendment and Securities Fraud, 65 ALA. L. REV. 903, 910 (2014). 11 AKHIL REED AMAR, AMERICA’S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY 153 (2012); KERMIT L. HALL & MELVIN I. UROFSKY, NEW YORK TIMES V. SULLIVAN: CIVIL RIGHTS, LIBEL LAW, AND THE FREE PRESS 201 (2011). 12 Scott L. Nelson, Commentary, Dun & Bradstreet Revisited—A Comment on Levine and Wermiel, 88 WASH. L. REV. 103, 122 (2013). 13 The link between free speech protections and democracy is discussed in detail in this Article. See infra notes 60–101 and accompanying