Over time tort law has become reluctant to provide compensation for harms to reputation caused by what people say or print.1 In New Jersey the statute of limitation for a defamation action is just one year from the date of publication. If the alleged defamatory matter is true, well that’s an absolute defense (although it has not always been). And only statements of fact, as opposed to opinion, are actionable.
Since the 1964 case of New York Times Co. v. Sullivan,2 the First Amendment has been interpreted to protect the news media from liability for defamatory falsehoods against public figures unless the statement was made with “actual malice,” either knowledge that the statement was false or reckless disregard as to whether it was true or false. The commercial media understandably view this decision as an important one.
It is not, however, without its critics, one of whom is Supreme Court Justice Clarence Thomas, who has been known to question the correctness of many prior decisions. In McKee v. Cosby, 586 U. S. ___ (2019), Thomas concurred in the denial of certiorari but called for the re-examination of Sullivan. He did the same thing last Tuesday in Blankenship v. NBCUniversal, 601 U. S. __ (2023).
Media reaction has been a bit more subdued than I might have expected. Yes, BNN Breaking, a news website of which I was previously unaware, called the denial of certiorari a “landmark decision” with “far-reaching implications, carving the path for future defamation cases and highlighting the crucial balance between freedom of the press and individual reputation.”3 But much of the other coverage, from, for example, CNN, The Volokh Conspiracy, and even the New York Times itself, has been sober, factual, and accurate.
Jay Bohn
October 16, 2023