Sarah Palin's case against The New York Times is a landmine for the First Amendment: expert

For more than half a century, conservatives have wanted to eradicate New York Times v. Sullivan, the 1964 Supreme Court decision that is the nation's most important First Amendment case. A trial scheduled for February 1 may give them that opportunity. If the Supreme Court invalidates NYT, federal judges—including the 230 appointed by President Trump—will preside over more libel suits against journalists he calls "the enemy of the people." Those judges can carry out Trump's promise to "open up…libel laws…[and] have people sue you like you've never got sued before."

Anyone who makes factual errors when criticizing government or accusing a person of misconduct could be dragged into court and left destitute by a jury's verdict or legal bills. Public officials with government jobs and public figures—those who are well-known or have entered a public controversy—can win lawsuits that previously would have been unsuccessful.

The NYT ruling is essential to our democracy because it protects discussion of political issues and the fitness of those seeking public office. Justice William Brennan's famous passage in the case exemplifies its significance: "Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

The case arose when civil rights leaders, clergy, and celebrities purchased a full-page ad in the New York Times in 1960 to protest the treatment of Dr. Martin Luther King, Jr. and other civil rights activists by southern authorities and to seek financial support. The ad, with the heading "Heed Their Rising Voices," contained several errors related to the actions of Alabama officials.

L.B. Sullivan was an elected city commissioner in Montgomery who supervised the police department. Although he was not named in the ad, Sullivan claimed that the criticism of the police harmed his reputation, and an Alabama jury awarded $500,000—the full amount Sullivan sought. The jury wanted to send a message to northern media organizations to stay out of the South during the civil rights movement. Similar suits were pending in other southern courts.

The Supreme Court unanimously reversed the jury award in NYT and required that a public official prove 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." The "actual-malice" standard focuses on what defendants believed and not what they did. Because almost no one will admit they were unsure about the accuracy of their statements before publishing or speaking, it makes uncovering such evidence extraordinarily difficult. Nevertheless, state and federal courts have upheld numerous jury verdicts in such cases.

Even though NYT serves a vital interest, it is no match for "textualism"—the judicial philosophy that its supporters believe is the only legitimate method of constitutional interpretation. The late Justice Antonin Scalia was the intellectual leader of the textualist movement. His judicial opinions and speeches have been widely influential. Textualism is now so central to conservative jurisprudence that allegiance to it was required of anyone the Trump White House considered for appointment to the federal bench.

Textualists believe that courts must be guided by what the words in the Constitution meant at the time they were written by the founders or when an amendment was proposed and ratified. The Constitution is thus frozen in the 18th century, and judges cannot use the nation's 230 years of experience to support a more enlightened interpretation of constitutional text.

Conservatives ridicule the view that the Constitution can be adapted to changing conditions and values. Justice Scalia said in a speech that the Constitution is "not a living document…it's dead, dead, dead." Textualists believe that if rights—such as those guaranteed by the First Amendment—were not established at the end of the 18th century or when the Constitution was amended, they are not protected today.

The danger is that many of the rights in the original Constitution and later amendments had only symbolic value until judges deciding cases gave them meaning. The First Amendment—which did not protect even mild criticism of government or public officials during the founding era—is an example of how fundamental rights needed time to develop.

Trump-appointed judges

Many judges appointed by Trump were selected because of political connections, not because they were qualified for a prestigious job with lifetime tenure. Judges chosen for their political views and not their knowledge of the law wouldn't be expected to have a deep understanding and appreciation of the First Amendment and other constitutional rights. Their focus will be on implementing conservative policies that legislatures are unable to adopt while pretending to respect the lessons of the founders.

Some Trump nominees had no relevant experience, never litigated a case, could not answer simple legal questions that any competent lawyer would know, and failed to disclose disturbing information on the forms they completed after nomination. Several had strange personal histories that included hunting for ghosts, praising the KKK, claiming that transgender children are "proof that Satan's plan" is working, and supporting the birther controversy about President Obama. Even the most peculiar nominees were approved by the judiciary committee—with no Democratic votes—and if not for embarrassing news reports about their bizarre backgrounds, they would have been confirmed by Republicans in the full Senate.

Senator Lindsey Graham (R-SC), the chair of the judiciary committee, told reporter Bob Woodward for his book Rage that "Some [of Trump's judicial appointees] are a little wacky. Most of them are really good. But a few [are] outliers." Graham recognized that with the removal of the filibuster rule on judicial appointments, the federal courts would be highly partisan: "The problem is when you only need a simple majority [to confirm judges], you don't need to go outside your own party…If you've got to reach across the aisle and pick up 10 [Democratic] votes [in the Senate], you're going to have a different judge than if you don't…the judiciary is going to get far more ideological."

Trump appointed—in addition to three Supreme Court justices—a third of the 850 Article III judges, many of whom are young enough to serve for decades. Only a few presidents have appointed more judges. The White House and Senate Majority Leader Mitch McConnell (R-Ky) made judicial appointments such a high priority that there are no circuit court vacancies for the first time in more than 40 years.

The Trump White House, instead of submitting names to the American Bar Association for a nonpartisan evaluation of potential nominees—which presidents had done since Eisenhower—only considered those vetted and approved by the Federalist Society, a conservative and influential organization of former and current public officials, practicing attorneys, law professors, and law students. The Society would have investigated the nominee's background and record to confirm they support textualism and would uphold Republican orthodoxy.

Textualism and the law

Textualists maintain that when the Constitution is treated as an evolving document, the rulings based on that interpretation are illegitimate. Therefore, conservatives are not only justified in reversing such precedents—like NYT—they have an obligation to do so. If someone wants constitutional protection that did not exist in the founding era or when an amendment was ratified, they can change the Constitution. Textualists don't mention that the Constitution is almost impossible to amend in this political climate. It has been modified only twice in the last half century, and one of those amendments was from the founding era.

Almost no precedent is safe. Several Trump-appointed judges refused to say during their confirmation hearings that Brown v. Board of Education (1954) was correctly decided. When the 14th amendment was ratified in 1868, its equal-protection clause was not intended to integrate society or desegregate public schools. Textualists can argue that if Congress wanted African-American and white school children to attend the same schools, the 14th amendment would have said so. To be true to their faith, textualists must conclude that the Warren Court in Brown was creating law beyond what the Constitution required or permitted, and such decisions are to be made by legislatures, not courts.

It isn't just constitutional law that is at stake. Federal judges decide more cases that primarily require statutory interpretation than those involving the Constitution. Inspired by Justice Scalia, textualists hold that congressional "intent"—as expressed in committee reports and in debates on the House and Senate floor—should be ignored; only the text of the statute should govern the way laws are interpreted. If a legislative body does not include every contingency in the statute—even those that could not be anticipated—textualist judges will strike down or so narrowly construe the law as to render it meaningless even when such a ruling ignores its obvious purpose.

Trump's first appointee to the Supreme Court, Justice Neil Gorsuch, showed his commitment to statutory textualism when he was a judge on the U.S. Court of Appeals for the Tenth Circuit. He criticized the decision by the Department of Labor to reinstate a trucker who was fired for choosing not to freeze to death in subzero weather on the side of a highway. The brakes froze on the trailer Alphonse Maddin was hauling, making it impossible for his truck to move while the trailer was attached. His employer ordered him to stay with the truck and trailer until help arrived. He waited hours in the truck with a broken heater and began to lose consciousness. Fearing for his life, he disconnected the trailer and drove to safety.

Federal law prohibited an employer from firing an employee who "refuses to operate a vehicle because…the employee has a reasonable apprehension of serious injury to the employee or the public." Judge Gorsuch argued that Congress did not specifically include the possibility that a trailer's brakes could freeze and immobilize a truck. In Gorsuch's view, since the truck could be driven, Maddin was not entitled to protection under the statute. Two of Judge Gorsuch's colleagues on the court agreed with the department's decision to give Maddin his job back, which was consistent with the long-established principle of deferring to an administrative agency's expertise if a statute does not directly address the circumstances of a case. But Gorsuch was more concerned with textualist purity than Maddin's life or employment. He ruled, in effect, that by not staying with the truck as ordered by his employer, Maddin fired himself. Gorsuch said it was not his job to help Congress write laws more carefully.

After being sworn in as a justice, Gorsuch joked about the case in a speech to the Federalist Society: "Everyone…who's not a lawyer is going to think I just hate truckers…but so be it…In our legal system, judges wear robes, not capes."

The Supreme Court used such an approach to protect employers from gender discrimination lawsuits in Lilly Ledbetter v. Goodyear Tire & Rubber Co. (2007). The conservative majority created the excuse that Congress did not explicitly say in the law that each paycheck starts the statute-of-limitations clock again. The majority knew that Congress intended to outlaw such discrimination and did not want to set a time limit for bringing a lawsuit that would expire before women could discover the pay disparity. But the majority didn't care about that because they don't think employers should be held accountable for paying women less than men for the same work. Congress was inspired by Justice Ruth Bader Ginsburg's passionate dissent in Ledbetter and admonished the Court's conservatives by passing the "Lilly Ledbetter Pay Equity Act," the first bill signed by President Obama in 2009.

Textualism vs. Originalism

Textualism and "original intent"—often referred to as "originalism"—are not the same, although some jurists accept both approaches to statutory and constitutional interpretation. Justice Gorsuch, in a speech to the Federalist Society after his confirmation said, "Tonight I can report, a person can be both a committed originalist and textualist and be confirmed to the Supreme Court." And he added, "Originalism has regained its place and textualism has triumphed and neither is going anywhere on my watch."

Originalism appears to be less harmful to the Constitution because it is utterly impractical. Originalists argue that the "intent" of the framers is what matters when deciding constitutional cases. But whose intent counts: The state legislators who chose the delegates to the Philadelphia Constitutional Convention of 1787? The convention delegates such as Madison, Hamilton, Wilson, Morris, Mason, Sherman, and others who wrote and debated the Constitution? The authors of The Federalist—Madison, Hamilton, and Jay? The voters who elected the delegates to the ratifying conventions? The delegates at the ratifying conventions?

And what about the Bill of Rights: The members of the House and Senate who proposed what became the first ten amendments to the Constitution? The voters who elected the state legislators who ratified the amendments? The legislators themselves?

Textualists could argue their method of statutory and constitutional interpretation is more reliable than originalism because it is easier to identify and apply. They only have to discover what the words meant at the time and not the views of the many people involved, directly or indirectly, in the writing of the documents. But textualism is not so pure; it shares some of the most troublesome deficiencies of originalism.

When textualists contend that constitutional interpretation must be limited to what the words meant when they were written, the natural question is: How do you know what the writers thought they meant? To determine what they thought requires knowing what they intended them to mean. A speech at a ratifying convention or on the House or Senate floor; a pamphlet or broadside distributed to the public; a letter written by the one of the founders; a newspaper commentary; TheFederalist which was published to win the support of New York voters who were about to elect delegates to the ratifying convention—why do any of those documents conclusively demonstrate how the founders and the public interpreted the text of the Constitution and its amendments? Just because one of the founders made a statement in a letter, even if published, doesn't mean that view was widely shared by other founders or the public.

And what about the Constitution's many general phrases: "due process of law," the "necessary and proper" clause giving Congress powers beyond those listed in the Constitution; the "equal protection" clause? How can originalists—and by implication, textualists—find consensus as to the meaning of those phrases?

Even if we could identify the intent of the people involved in creating our founding documents, why would we want to return to an era when slavery flourished, women had almost no rights, the Bill of Rights provided limited, if any, protection to disfavored groups and individuals, and having property and wealth was often a requirement for public office?

The First Amendment pending crisis

Ironically, the newspaper that had to defend the First Amendment in 1964 is fighting a lawsuit—Palin v. New York Times—that could terminate the actual-malice standard. Former vice-presidential nominee Sarah Palin sued the newspaper in June 2017 over an editorial published after the shooting of Congressman Steve Scalise at a Republican baseball practice. It asked, "Was this attack evidence of how vicious American politics has become? Probably." The editorial then stated that before the shooting of Congresswoman Gabrielle Giffords and the killing of six others at a Tucson shopping center parking lot in 2011, "Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs."

The Times quickly issued a correction, explaining that the link between "political rhetoric and the 2011 shooting of Representative Gabby Giffords" wasn't "established," and the graphic showed electoral districts and not people.

James Bennet, author of the essay and editor of the Times editorial page, testified that he included the connection between the PAC ad and the Tucson attack "to make a rhetorical point about the present atmosphere of political anger." Bennet said that he had not read previously published articles in the Times that showed there was no link between the ad and the shooting, nor did he see a similar article that was published in The Atlantic when he was its editor.

The jury and appellate courts will have to decide whether Bennet and the Times either knew what they wrote about Palin was false or recklessly disregarded whether it was false or not—as required by the actual-malice standard. Even if Bennet did not "entertain serious doubts as to the truth" of the editorial—a phrase used by the Supreme Court in St. Amant v. Thompson in 1968—the courts may find that he intentionally ignored available information that would have undermined the defamatory statements, which can be considered actual malice. In 1989, the Supreme Court ruled in Harte-Hanks v. Connaughton that "Although failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in a different category."

The textualist undoing of actual malice

Justice Scalia said that if he had been on the Supreme Court in 1964, he would have dissented from the unanimous ruling in NYT because the actual-malice standard did not exist at the time of the nation's founding. In a speech at Wesleyan University in 2012, Justice Scalia said, "There is no doubt that at the time it [the First Amendment] was adopted in 1791, no one thought that this provision invalidated laws against libel—which existed then and have continued to exist ever since. The issue is an easy one…libel laws are constitutional."

Actual malice doesn't just safeguard discussion of politics and government; it protects any defendant sued by a public official or public figure. When women came forward in recent years to tell stories of being harassed, assaulted, and threatened with damage to their careers, some of the accused thought a libel suit might be a way to save their job, vindicate their reputation, and intimidate their accusers. Their lawyers would have told them that unless they could prove the women and the media outlets reporting their stories recklessly disregarded the truthfulness of their statements, they would not win. Without NYT, more plaintiffs would bring such a case, win a jury verdict, and have it upheld on appeal.

No one is as eager to eviscerate NYT as Justice Clarence Thomas. In McKee v. Cosby (2019), Thomas wrote a 14-page concurring opinion supporting the decision not to hear McKee's appeal in her lawsuit against actor Bill Cosby for defamatory statements he made about her. Thomas is one of many conservatives who believes that states should determine their own libel standards and that NYT illegitimately took that authority from them.

This is especially troubling because before NYT, most states allowed punishment for any inaccuracies that could potentially injure reputation. When the First Amendment was adopted, some states even permitted imprisonment and libel suits for truthful speech that criticized public officials or government on the grounds that it leads to a breach of the peace. But that doesn't matter to Thomas: "New York Times [v. Sullivan]and the Court's decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own 'federal rule[s]' by balancing the 'competing values at stake in defamation suits.'" And he added, "The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm."

The First Amendment is part of our national Constitution, and the fundamental rights it protects should not vary significantly by state. Without NYT providing nationwide standards for public officials and public figures, and with media outlets reaching across state lines, plaintiffs can file lawsuits in almost any jurisdiction hostile to media organizations.

Although all courts must currently follow the requirements of NYT in cases involving public officials and public figures, the Supreme Court allows states much greater flexibility when it comes to private-person plaintiffs. Judges, not juries, decide whether the plaintiff is a public figure or a private person, and it is often a close call. The decision is crucial because in most states, private persons need only show that the publisher or speaker did not exercise reasonable care when making the statements or that someone else would have acted more responsibly. If Trump-appointed judges share his hatred for the media, they will designate plaintiffs to be private persons if there is any basis for doing so, thus greatly increasing their chance of winning a lawsuit.

Those who want to eliminate NYT may believe that Americans will still have freedom of speech and freedom of the press, but suddenly everything said and written will be accurate because people will know they can be sued. But as Justice Brennan observed in NYT, "A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable 'self-censorship.' Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred."

To Justice Thomas and others who practice textualism and originalism, the First Amendment is stuck in 1791—the year it was ratified. Yet the amendment was appallingly ineffective in protecting unpopular speech during its infancy and for many years after. At least 26 people—mostly newspaper publishers—were prosecuted under the Sedition Act of 1798 for criticizing President Adams and the federal government. Even a congressman from Vermont was imprisoned for four months and fined $1,000 for publishing editorials disparaging the president. Justice Thomas's 18th-century First Amendment may include freedom of the press, but those words were useless until judges began to enforce such rights.

Between 1900 and 1917, hundreds of suffragettes were imprisoned for peacefully demonstrating in support of the right of women to vote. In the fall of 1917, 97 were jailed for picketing outside the White House. They were arrested, convicted, and thrown in disgusting and dangerous prisons. At least 33 were tortured with force-feeding and other physical abuse. One of the leaders, Alice Paul, served seven months behind bars. Justice Thomas's 18th-century First Amendment may include freedom of speech and the "right of the people peaceably to assemble," but its words offered no help to those women. These rights are protected today not because the First Amendment was rewritten, but because society changed and judges began to take them seriously.

If the Supreme Court ends actual malice, it may allow states to adopt it for their courts. But that would likely have to be done by legislatures which have little experience or interest in such laws. It has generally been judges, and not lawmakers, who have protected First Amendment rights. Furthermore, both state legislators and state judges must periodically be elected or retained by voters, and they may not want to bring back NYT if large numbers of their citizens believe media organizations knowingly disseminate "fake news."

It is harmful to the nation and our fundamental rights to treat the Constitution as if it "died" at the end of 18th century. Conservatives claim that judges who find aspirational values in the Constitution are judicial "activists" who disregard the instructions of the founders. Yet, it is textualism and originalism that are dangerous in the hands of judges determined to use the legal system to impose their views on the nation.