Fears that Trump’s Judicial Appointments Will Overturn New York Times v. Sullivan Unlikely to Be Realized
With Donald J. Trump sworn in as the 47th President, the media is full of think pieces predicting that his second term will have far reaching negative effects on the future of reporting. Foremost of those fears is that President Trump will appoint U.S. Supreme Court Justices that will overturn New York Times v. Sullivan. As the conservative Claremont Institute has described, President Trump has “call[ed] out the [Sullivan] standard for permitting an often-partisan media to pollute the public discourse with lies.”
Sullivan is a landmark decision holding that the First Amendment restricts the ability of public officials to sue for defamation. The decision held that if a plaintiff in a defamation lawsuit is a public official, then not only must they prove the standard elements of defamation – publication of a false defamatory statement to a third party – but they must also prove that the statement was made with “actual malice.” Proving actual malice requires showing the defendant either knew the statement was false or recklessly disregarded whether it was true or false. Sullivan was later applied not only to public officials but also to public figures.
As Professor Genevieve Lakier wrote in the Washington Post, “[R]eturning to the pre-Sullivan standard would create problems of its own. Most important, it would leave journalists and other public speakers vulnerable to the kind of politically motivated litigation that the Times faced in 1964, when, after the newspaper published an advertisement containing minor factual inaccuracies about the civil rights movement in Alabama, a phalanx of segregationist forces tried to use libel suits to run the paper out of business—and almost succeeded. No one who cares about an independent press in the United States should view the return of this state of affairs as a positive development.”
The Conservative Movement to Overturn Sullivan
Calls to overturn Sullivan came into the public consciousness with Justice Clarence Thomas’ concurrence denying certiorari in McKee v. Cosby. In that case, one of Bill Cosby’s accusers sued Cosby’s attorney for defamation. The lower court held that by accusing a famous person of rape, McKee made herself a public figure. As such, Sullivan’s actual malice standard applied to statements regarding McKee’s accusation. Justice Thomas wrote that the Supreme Court had overstepped by “constitutionalizing” the law of libel and suggested that no such protections were applied at common law when the First Amendment was adopted. Thomas’ position was not only supported by conservative legal commentators; Harvard law professor, and later a Biden Administration appointee, Cass Sunstein commented: “It is hardly obvious that the First Amendment forbids rape victims from seeking some kind of redress from people who defame them.”
Later cases saw Justice Neil Gorsuch joining Justice Thomas in calling for a reconsideration of Sullivan. Justices Thomas and Gorsuch both dissented from the denial of certiorari in Berisha v. Lawson, arguing the Supreme Court should reconsider Sullivan. Calls for rethinking Sullivan are also gaining traction in academia. As early as 2021, the Federalist Society was hosting debates regarding whether Sullivan should be overturned. That same year, D.C. Circuit Judge Laurence Silberman dissented from a decision, calling for Sullivan to be overturned.
A series of defamation cases in the wake of the 2020 presidential election helped this issue jump from the judiciary and academia to the public at large. Florida Governor Ron DeSantis has publicly called for Sullivan to be overturned. Florida State Representative Alex Andrade introduced two bills, which if passed, would have attempted to roll back the protections provided by Sullivan. Popular conservative figure and former Mississippi Governor Phil Bryant has tweeted, “Overturn Sullivan.” Former Alaska Governor Sarah Palin’s legal team has long viewed her case against the New York Times as a potential vehicle for overturning Sullivan.
However, even conservative scholars like Eugene Volokh, who are open to re-thinking Sullivan, have repeatedly stated that overturning Sullivan would require a new standard that still protected open debate in the current media environment.
Many Conservatives Support Sullivan
Despite the many conservative voices calling for Sullivan to be overturned, such a position is not conservative orthodoxy. In December 2024, David Elder published an opinion piece on the conservative blog Law & Liberty calling for Sullivan to be overturned. That piece followed an earlier call on Law & Liberty to overturn Sullivan. But on the same day that it published David Elder’s piece, Law & Liberty published an argument from Lee Levine and Matthew Schafer that Sullivan was important for upholding democracy. In 2024, Law & Liberty also published several pieces criticizing calls for Sullivan to be overturned and seeking to limit any refutation of Sullivan.
Likewise, conservative group the Foundation for Individual Rights (FIRE) put out a statement that Sullivan matters now more than ever. That is consistent with FIRE’s long-term stance. Conservative groups like the National Right to Life and the Club for Growth have routinely relied on Sullivan to ensure their voices can be heard in the political sphere. The Alliance Defending Freedom often supports conservative efforts to protect free speech, including seeking to uphold or even expand free speech protections. Many conservative academics, like Professor Jacob Mchangama, also support Sullivan.
Most importantly, two of the three Justices appointed by President Trump during his first term have shown no interest in overturning Sullivan. In fact, the Supreme Court has been presented with vehicles for overturning Sullivan and has not had even the four votes necessary to take those cases.
That is not likely to change. As conservative commentator David Lat has written, “It’s unlikely that Trump in his second term will have anywhere near the same impact on the court—because it’s already so conservative, and none of the three liberal justices would willingly give Trump a vacancy.”
This means that Sullivan is likely safe for now. However, the long-term future of Sullivan is uncertain. For now, those that support this decision have the opportunity to make the case for Sullivan remaining the law of the land.
Phelps will continue to monitor defamation cases throughout the country. If you have questions regarding defamation or the future of Sullivan, please contact Andrew Coffman or any member of the Phelps Media and First Amendment Law team.
