Probably the most important case in American press law is New York Times Co. v. Sullivan (1964), in which the Supreme Court, in a unanimous decision, made it just about impossible for a “public figure” to win a lawsuit against a news organization. Justice William Brennan, in the majority opinion, wrote, "The constitutional guarantees require, we think, a Federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." This standard, built on in succeeding cases, made this the country with the most pro-free expression, and specifically pro-press, laws in the developed world; post-Sullivan protections extend from publications to individuals, and from libel to invasion of privacy. “Libel tourism” means looking for a pretext to sue an American publication in England or some other friendlier venue, especially if you’re a celebrity. Conversely, the purveyors of recent monster revelations, like Wikileaks, have taken pains to find American publishing partners, because the right to publish is far more substantial here than elsewhere.
The Sullivan case was about an advertisement in the Times, not a news story—a 1960 appeal for contributions to the defense of Martin Luther King in one of his legal tussles with segregationist authorities in the South. There were a couple of minor errors in the text of the ad, which was why the Court was able to rule that just getting the facts wrong about a public figure (Sullivan was the public-safety commissioner in Montgomery, Alabama) didn’t make you a loser in a libel suit. The Court made life especially difficult for future plaintiffs against the press by saying that they would henceforth have to prove “actual malice” as the cause of a mistake—a state of mind that is almost insuperably difficult to establish.
The Sullivan doctrine parses logically, but it’s hard to believe that the Times’ case wasn’t helped by its association with the moral grandeur of King’s struggle, especially in a Court that had seen its decisions flouted by Southern white officials for a decade. The marquee press-law case of the moment, Hulk Hogan’s invasion-of-privacy suit against Gawker, successful so far, for publishing a sex tape starring him, raises similar legal questions about specific facts that are at the opposite end of the attractiveness scale. The press is now in the uncomfortable position of making a stand in defense of the Sullivan standard on behalf of a gossip Web site rather than a prestige publication, and a pornographic snippet of no public importance rather than an appeal to help an American hero in a historic crusade for justice.
At the moment, what seems most important about the Hulk Hogan case is last week’s revelation that Hogan’s legal costs were borne by Peter Thiel, the Silicon Valley billionaire on whom Gawker has been inflicting pain for years. The story has been that Thiel is out for revenge against Gawker and its founder, Nick Denton, and may well get it, in the form of a forced sale or even Gawker’s going out of business. The stakes may actually be bigger than that. Remember that Thiel is a graduate of Stanford Law School who clerked for a year on the Eleventh Circuit, and that, in his world, “scale” and “disruption” are the hoped-for ends of every investment. He is surely aware of this case’s potential to begin a reëxamination of the fundamental questions in American press law, far beyond the fate of Gawker.
Before the middle decades of the twentieth century, the Supreme Court didn’t find that the First Amendment gave the press extraordinary protection to publish private material about public figures, or secret government documents. As the press moved from its raffish Front Page period into at least trying to behave like a profession, the Court gave it steadily more protection. But today the American press has a profoundly different structure than it did in the Sullivan era. Established, professionalized news organizations make up a far smaller portion of the whole, and most are under economic stress. The roguish part of the press is proliferating. People like Nick Denton love to mock the mainstream media for being preachy and self-regarding, while taking full advantage of the protections that arrived during its brief period of general public esteem. Now the public likes the press less and less, and that invites a sustained reconsideration of the protections.
The Republican candidate for President, for whom Thiel plans to serve as a California delegate, has said, “I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money”—meaning, he’ll do what he can to overturn the Sullivan standard. The Gawker case may be only the first in a string of lawsuits that unleash a generation’s worth of resentment against the uniquely legally privileged position of the American press, at a moment when the press is far more vulnerable, economically and culturally, than it used to be. Journalists and their lawyers ought to be arming themselves for a protracted war.
