1 376 US. 254 (1964).Google Scholar

2 Lewis notes that soon after the Times's general counsel requested Herbert Wechsler to draft a petition for certiorari, Times editors summoned Wechsler to a meeting to defend the decision to seek review of the verdict. Wechsler told Lewis: “I was being asked to show cause why I should file a petition for certiorari. I found myself defending the legal position 1 was advancing in defense of the Times—that the First Amendment applied to libel cases…. People were asking why it wasn't enough for the Times to ‘stick to our established position that we never settle libel cases, we publish the truth, if there's an occasional error we lose and that's one of the vicissitudes of life’—that at a time when I was told the paper was barely making a profit and these judgments were mounting up” (at 107). The anecdote reveals how greatly the attitudes and expectations of the American press have changed since Sullivan— perhaps due to Sullivan itself. See infra at pt. ILA. pp. 711–12.Google Scholar

3 Justice Black's concurring opinion in Sullivan wryly noted that the “record lends support to an inference that instead of being damaged Commissioner Sullivan's political, social, and financial prestige has likely been enhanced by the Times' publication.” 376 U.S. at 294.Google Scholar

4 Under the actual malice rule, a libel plaintiff must show that the defendant published the challenged statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”Id at 280. A defendant acts with “reckless disregard” when he “in fact entertain[s] serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Under traditional common law rules of libel, the plaintiff need make no such showing: the plaintiff must establish only that the defendant has published a false defamatory statement “of and concerning” the plaintiff.Google Scholar

5 Justice Brennan wrote no fewer than eight drafts of his majority opinion, most of which were circulated to the other members of the Court (at 164).Google Scholar

6 The alternative, of course, was to leave to the state courts the task of applying the new standard to the evidence in the case.Google Scholar

7 See Epstein, Richard, “Was New York Times v. Sullivan Wrong 53 U. Chi. L Rev. 782, 792–93 (1986).CrossRefGoogle Scholar

8 Abrams v. United States, 250 U.S. 616 (1919).Google Scholar

9 Gitlow v. New York, 268 U.S. 652 (1925).Google Scholar

10 Whitney v. California, 274 US. 357 (1927).Google Scholar

11 Viewed in this light, the only real question is why Justice Brennan stopped short of adopting the position that absolute immunity is appropriate in cases like Sullivan. Lewis aptly notes that much of Justice Brennan's opinion points toward a rule of absolute immunity; only at the last moment did he lurch toward adoption of the actual malice standard (at 146–47). Perhaps this was the moment at which Justice Brennan recognized that even libel actions brought by public officials posit false statements of fact injurious to reputation and therefore are distinguishable—in theory if not necessarily in practice—from more general governmental efforts to suppress hostile comment and criticism.Google Scholar

12 In Make No Law, Lewis urges the Court not merely to retain the actual malice standard in all cases in which it currently applies but also to limit damages in such cases to out-of-pocket losses (at 226).Google Scholar

13 Lewis devotes much attention to whether the actual malice rule actually encourages speech, but his discussion backtracks on itself. On the one hand, Lewis insists that the Sullivan rule was responsible for press coverage of some of the most important national stories of the past decades, including Watergate and the Vietnam War (at 158). The part of this claim relating to Vietnam seems wildly overdrawn. If, as Lewis writes, journalists during the Vietnam War began to show less deference to official accounts and judgments than in the earlier years of the Cold War, surely this newfound independence had more to do with changed attitudes toward government players and policies than with changed rules of libel law. Lewis seems on more solid ground when he contends that libel rules affected coverage of the Watergate scandal. Still greater plausibility would attach to a claim that the actual malice rule freed smaller media outlets, whose very existence could be threatened by a libel judgment, to confront powerful local politicians. But Lewis makes a number of observations that place even this scaled-down claim in doubt. He notes that several earlier periods of American history saw savage attacks on political leaders by the press (at 206–7); and he concludes that the “notion that the press was harder on public servants after 1964 is contradicted by history” (at 206). Even more important, Lewis several times asserts (in making the claim for augmented libel protection) what has become a commonplace in press circles: that in practice the actual malice rule has raised the costs and stakes of libel litigation and thereby may have increased press inhibitions (at 200–202, 244). In the absence of any empirical data, choosing between such rival assertions becomes a matter of crude intuition.Google Scholar

14 The question is discussed in most expansive form in Lee Bollinger, Images of a Free Press 26–39 (Chicago: University of Chicago Press, 1991).Google Scholar

15 See, e.g., id at 2627, 35–36.Google Scholar

16 In Images of a Free Press, Lee Bollinger posits that the image of the press portrayed in Sullivan and similar cases may entice the press to conform to norms of quality journalism. See id. at 40–61. I agree with Bollinger that the Sullivan Court articulated a certain image of the press and that the press largely has absorbed that image. We disagree as to the consequences of this process. Whereas Bollinger believes that the absorption of the Sullivan image often uplifts the press, I believe the absorption of that image more often succeeds only in blinding the press to its own shortcomings as well as its capacity to inflict unjust harm.Google Scholar

17 Harry Kalven, Jr., “The New York Times Case: A Note on ‘The Central Meaning of the First Amendment,’” 1964 S. Ct. Rev. 191, 221.CrossRefGoogle Scholar

18 Id.Google Scholar

19 Kalven believed that in offering constitutional protection from libel suits, the Court should and would move “from public official to government policy to public policy to matters in the public domain.”Id.Google Scholar

20 Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).Google Scholar

21 The Supreme Court has ruled on several occasions that libel plaintiffs were not public figures. See Wolston v. Reader's Digest, 443 US. 157 (1979); Hutchinson v. Proxmire, 443 U.S. 111 (1979); Time, Inc. v. Firestone, 424 U.S. 448 (1976); Gertz v. Robert Welch, Inc., 418 US. 323 (1974). For a review of lower court decisions to the opposite effect, see David Anderson, “Is Libel Law Worth Reforming?” 140 U. Pa. L Rev. 487, 500–501 (1991).Google Scholar

22 Gertz v. Robert Welch, Inc., 418 US. at 351.Google Scholar

23 See Anderson, 140 U. Pa. L Rev. at 501. Some cases demonstrating the range of the public figure category are: Trotter v. Jack Anderson Enterprises, 818 F.2d 431 (5th Cir. 1987) (president of Guatemalan soft-drink bottling company); McBride v. Merrell Dow & Pharmaceuticals, 800 F.2d 1208 (D.C. Cir. 1986) (expert witness); Dameron v. Washington Magazine, 779 F.2d 736 (D.C. Cir. 1985) (air traffic controller); Brewer v. Memphis Publishing Co., 626 F.2d 1238 (5th Cir. 1980) (former girlfriend of Elvis Presley), cert. denied, 452 U.S. 962 (1981); James v. Gannett Co., 353 N.E.2d 834 (N.Y. 1976) (belly dancer).Google Scholar

24 Gertz v. Robert Welch, Inc., 418 US. at 347–49.Google Scholar

25 See Anderson, 140 U. Pa. L Rev. at 502.Google Scholar

26 See Dun & Bradstreet v. Greenmoss Builders, 472 US. 749, 759–61 (1985), in which the Court held that in a private figure/private concern case, a showing of actual malice was unnecessary even to obtain presumed and/or punitive damages. The Court left open the question whether any heightened constitutional standards (relating, for example, to burdens of proof) apply in such cases.Google Scholar

27 One study of appellate cases involving media defendants found 75 cases in which the actual malice standard controlled and only 24 in which any lesser standard controlled. See Franklin, Marc, “Suing Media for Libel: A Litigation Study,” 1981 A.B.F. Res. J. 795, 824.Google Scholar

28 “Pervasive fame or notoriety” makes a person a public figure for purposes of any statement made about him, regardless of the subject matter. See Gertz v. Robert Welch, Inc., 418 U.S. at 351. Newton, like all “celebrities,” thus qualifies as a public figure in any libel suit. Indeed, the district court handling Newton's case imposed sanctions of $55,000 on him for contesting the public-figure issue at all. See Newton v. National Broadcasting Co., 930 F.2d 662, 668 n.6 (9th Cir. 1990).Google Scholar

29 See Masson v. New Yorker Magazine, 111 S. Ct. 2419 (1991). Although in one case the Supreme Court held that a widely publicized divorce proceeding was not a public controversy, see Time, Inc. v. Firestone, 424 U.S. 448 (1976), courts generally have shied away from declaring matters reported on by the press to be something other than public controversies. The more usual ground for private-figure status is that the plaintiff insufficiently involved himself in the relevant controversy. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323; Wolston v. Reader's Digest, 443 US. 157.Google Scholar

30 For an exploration of this method, focusing on its use in First Amendment cases, see Sunstein, Cass, “On Analogical Reasoning,” 106 Harv L Rev. 741 (1993).CrossRefGoogle Scholar

31 See Sunstein, Cass, “Free Speech Now,” 59 U. Chi. L Rev. 255, 311 (1992) (“The test for special protection should be whether the matter bears on democratic governance, not whether the plaintiff is famous”); Schauer, Frederick, “Public Figures,” 25 Wm & Mary L Rev. 905 (1984). Justice Brennan appeared to advocate a similar approach when he urged that the actual malice standard apply to all cases involving speech on “matters of public interest.” Rosenbloom v. Metromedia, 403 U.S. 29, 42 (1971) (Brennan, J.). But for Justice Brennan, this protection may have been meant to enhance, rather than to replace, the protection automatically accorded in public figure cases.CrossRefGoogle Scholar

32 376 U.S. at 270.Google Scholar

33 See Curtis Publishing Co. v. Butts, 388 US. 130, 163–64 (1967) (Warren, C.J., concurring).Google Scholar

34 Id. at 163.Google Scholar

35 In Masson v. New Yorker Magazine, 111 S. Ct. 2419 (1991), the plaintiff conceded public-figure status at the beginning of the case; the Supreme Court granted certiorari to consider the question whether and when deliberate misquotation could constitute evidence of actual malice. In Milkovich v. Lorain Journal Co., 110 S. Ct. 2695 (1990), the plaintiff initially was held to be a public figure; only on his second appeal to the Ohio Supreme Court, occurring almost a decade after he brought suit, was this determination reversed. The Supreme Court reviewed the case to determine whether libel defendants are constitutionally entitled to a privilege for statements of opinion.Google Scholar

36 779 F.2d 736 (D.C. Cir. 1985).Google Scholar

37 691 F.2d 666 (4th Cir. 1982).Google Scholar

38 The Court has provided two justifications for treating public figures differently from private figures, one involving the greater self-help remedies available to public figures and the other involving public figures' assumption of risk. See Gertz v. Robert Welch, Inc., 418 U.S. at 344. At least the former justification is related to the power relations concern explicated in the text. Only Chief Justice Warren, however, has discussed explicitly the question of power in libel cases. See Curtis Publishing Co. v. Butts, 388 U.S. at 163–64.Google Scholar

39 Determination of public figure status partly involves the question whether the defamation has arisen from the plaintiff's participation in a “public” controversy, a term which at least suggests an inquiry into the subject matter of the speech. See supra text at note 22. Moreover, the private-figure sphere is itself divided into two subcategories by reference to whether the speech concerns public or “purely private” matters. See supra text at notes 24–26.Google Scholar

40 Abrams v. United States, 250 U.S. 616, 624–31 (1919) (Holmes, J., dissenting); Gitlow v. New York, 268 U.S. 652, 672–73 (1925) (Holmes, J., dissenting); Whitney v. California, 274 U.S. 357, 374–77 (1927) (Brandeis, J., concurring); United States v. Schwimmer, 279 U.S. 644, 653–55 (1929) (Holmes, J., dissenting).Google Scholar

41 Near v. Minnesota, 283 U.S. 697 (1931).Google Scholar

42 Grosjean v. American Press Co., 297 U.S. 233 (1936).Google Scholar

43 Bridges v. California, 314 U.S. 252 (1941).CrossRefGoogle Scholar

44 Bond v. Floyd, 385 U.S. 116 (1966).Google Scholar

45 Brandenburg v. Ohio, 395 U.S. 444 (1968).Google Scholar

46 Cohen v. California, 403 U.S. 15 (1971).CrossRefGoogle Scholar

47 New York Times Co. v. United States, 403 U.S. 713 (1971).Google Scholar

48 Texas v. Johnson, 491 US. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).Google Scholar