Justice Scalia's Thoughts, And A Few Of My Own, on New York Times v. Sullivan

Justice Antonin Scalia recently gave an off-the-record interview before an A-List group of members of the media elite at the corporate headquarters of Time Warner in New York City. The one-on-one interview, which was part of a series called Conversations on the Circle, was conducted by Time's departing editor-in-chief, Norman Pearlstein.

Though the event was supposed to be off the record, the journalists and gossip columnists who attended could not resist covering the dustup that occurred between comedian and radio talk show host Al Franken and Justice Scalia. It seems Scalia got the better of the exchange.

Buried in the reports of the Franken-Scalia clash, was the fact that Justice Scalia had shared his thinking on First Amendment law - and that among his thoughts were some the communications industry audience could not have been pleased to hear.

Still, Scalia's statement was good news for public officials and public figures - and, as I see it, he is right on the merits of the First Amendment question he addressed. I would not, however, view this as a question of "originalism," as he does.

Scalia's Suggests New York Times v. Sullivan Was Wrongly Decided

Scalia revealed that he felt the landmark1964 ruling in New York Times v. Sullivan was wrong. That decision held that when a plaintiff in a defamation lawsuit is a public figure, such as a government official, the plaintiff can only prevail if he or she can show the statement was made with "actual malice" - a problematic phrase.

"I don't think that's what the founding fathers intended," Scalia said, according to one report. Certainly, that's an understandable position for an originalist: "Actual malice," in this context, is a term that would have puzzled the Framers of the Constitution.

According to another report -which was reported in hypotheticals, but plainly was addressing New York Times v. Sullivan-- Scalia said, "The press is the only business that is not held responsible for its negligence." Scalia also noted that he had great difficulty believing that public people should have such problems protecting their reputations.

Justice Scalia Is Right to Criticize New York Times v. Sullivan

In the more than forty years since the Court decided Sullivan, an entire body of jurisprudence has developed, through the rulings that are Sullivan's progeny, defining what "actual malice" means. Actual malice, in fact, has nothing to do with the words "actual" or "malice." It is, accordingly, a very confusing term for anyone not steeped in this body of law.

The requirement of "actual malice" means that the person publishing the defamatory statement must have done so with one of two states of mind: Either he knew the statement was false, or he published it with reckless disregard to whether it was true or false.

Simple negligence, then, is not enough under New York Times v. Sullivan: "Reckless disregard" requires that there had to have been a compelling reason to prompt taking some care before making the statement.

In practice, the "actual malice" standard means that the plaintiff usually loses. It's virtually impossible to prove with clear and convincing evidence (as is also required when the standard applies) that the publisher of the false statement either knew it was false, or published it despite good reason to more fully investigate the matter, thus recklessly.

Defamation defendants will always claim that they believed in the truth of the statement at issue. Based on an affidavit to this effect, courts often grant summary judgment in favor of the defendant, and dismiss the case.

There is at least one limit on the application of this permissive standard: As noted above, the "actual malice" standard does not apply when a private figure brings a defamation suit; in that event, the standard is negligence. "Actual malice" applies when the plaintiff is a "public figure."

Unfortunately, however, case after case shows that the term "public figure" has been defined broadly - too broadly, in my view. A public figure need not be a high government official, or a person who is a "household name"; far from it. Indeed, an obscure person can still be deemed a "limited purpose" public figure.

This is particularly troubling because the higher "actual malice" standard for public figure plaintiffs is premised on the myth that they have media access that allows them to correct any falsities circulated about them. Even for some genuine public figures, dispelling falsities is not easy. And many of the plaintiffs deemed public figures by the courts simply do not have anything like the kind of media access upon which the "public figure" designation is premised.

As an example, I literally selected a "public figure" defamation case at random to illustrate the point. It turned out to be Lohrenz v. Donnelly; it led to an appellate decision that the Supreme Court refused to review. It nicely makes the point that too many private persons are being deemed "public figures" for purposes of defamation law.

Lohrenz v. Donnelly: An Example of the Too-Broad Public Figure Definition

In 1993, Lt. Carey Lohrenz was one of the first women to become a Navy combat pilot. In October 1994, after Lohrenz had entered the F-14 program, and received her commission on the USS Abraham Lincoln in the Pacific Fleet, another woman who had joined her in this military assignment, Lt. Kara Hultgreen, was killed during a "combat readiness" training flight, because - and through no fault of hers - her engine failed as she was landing.

As it happens, Carey Lohrenz's record shows she was a skilled pilot. She had received "first place honors" in her primary flight training. Her superior performance as a student entitled her the preference she wished, and she selected jets. Upon completion of her jet training, however, she was told there was no place for female jet pilots at that time, so she could serve as a flight instructor or leave the Navy. Then the Navy changed its policy, and she chose combat jets, for which she was qualified.

Hultgreen's death brought new attention to female combat pilots. Among those interested was Elaine Donnelly, who heads an organization called the Center for Military Readiness. The Center says it is an independent, non-partisan, educational organization formed to take a leadership role in promoting sound military personnel policies in the armed forces. The organization is composed of hard-right civilians (for example, David Horowitz, Beverly LaHaye, and Phyllis Schlafly), along with a long list of retired military officers.

In fact, the Center is highly political. Elaine Donnelly's agenda is keeping gays out of the military, keeping Hillary Clinton off the Senate Armed Services Committee, ensuring gender segregation in the military, and preventing women from engaging in combat. Or as one report summarizes it, Ms. Donnelly's mission is to "monitor and measure [read: resist] the impact of new social policies that were imposed on the military to satisfy the demands of feminist and homosexual interest groups."

In early 1995, Donnelly sent a letter to Senator Strom Thurmond, then Chairman of the Senate Armed Services Committee, claiming that the Navy was promoting unqualified women in "the demanding and dangerous field of carrier aviation in the F-14 community." In her letter, Donnelly quoted at length a Lieutenant Burns who had briefly been the flight instructor of both Lohrenz and Hultgreen. He sounds like a fellow who was not happy that the ladies got into the boys' club.

In April 1995, Donnelly issued a special report from the Center for Military Readiness, publishing the letter to Thurmond - as well as Carey Lohrenz's confidential training record, thinly disguised as the record of "Pilot B," but clearly identifiable as Lohrenz, who was the only carrier-qualified female pilot in the Navy, not to mention on the USS Lincoln.

In May, 1995, Lt Carey Lohrenz lost her flight status - apparently as a result of Donnelly's work.

A year later, Donnelly gave a speech at the Army-Navy Club in Washington, DC, again claiming that Lt. Lohrenz was an incompetent combat pilot.

To read Donnelly's website, however, it is difficult to envision any woman who, in Donnelly's view, could be a competent combat pilot. In a press release, Donnelly charged the Navy with recklessly racing the Air Force to hire women pilots, in a contest "instigated by aggressive female officers, feminist advocates, and Navy public affairs officers."

Lohrenz Files A Defamation Suit, And Is Declared A Public Figure

Not surprisingly, Carey Lohrenz filed a defamation (and invasion of privacy) action against Elaine Donnelly and her Center for Military Readiness. But to no avail.

Crucially, both the U.S. District Court for the District of Columbia, and then the U.S. Court of Appeals for the District of Columbia Circuit ruled that Lt. Carey Lohrenz was a public figure. They then tossed her out of court -- notwithstanding the damage done to her career.

Arguably, the courts were simply following longstanding precedents that have grown up under the jurisprudence of New York Times v. Sullivan. For example, in Gertz v. Robert Welch, Inc., the Supreme Court had held that the standard for classifying an individual as a public figure was whether an individual has "assumed [a] role[] of especial prominence in the affairs of society … that invite[s] attention and comment."

But in this case, applying the public figure label was more than a bit of stretch.

Why was Lohrenz deemed a public figure? She held no public office, nor had she ever sought fame; she simply wanted to be a pilot - not, say, a television commentator on military issues. She hardly had the kind of media access that a true public figure has.

The Court reasoned - dubiously -- that when Lohrenz and Hultgreen went into "combat status," at a time that the issue of women in combat was very controversial, they somehow thrust themselves into the controversy in such a way as to make themselves public figures for the limited purpose of this debate.

Obviously, Lohrenz and did not have a clue she was giving up her privacy and the right to defend her reputation by this decision. Nevertheless, the courts claimed she had assumed the status of a limited purpose public figure voluntarily.

The ruling has a perverse consequence: It implies that every woman who breaks a glass ceiling, if she is a first to do so and there is any public debate on the matter, is thereby a limited purpose public figure - and thus, if she is falsely maligned by those who wish she had not succeeded, she will have virtually no legal recourse. And, more broadly, it implies that every person who enters a controversy in any way, virtually loses the right to protect his or her reputation in the very media that fueled the controversy in the first place.

Never mind that Lohrenz just wanted to do the job she was so good at: The fact that others wanted to talk about her barrier-breaking made her a "public figure" in the courts' eyes. The idea that she has voluntarily become one is laughable - but in this case, it was the law.

Defamation Law Is In Need of a Major Revision, as Justice Scalia Suggested

The constitutional law of defamation is a disaster. It is nearly incomprehensible. It is unfair. It is unjust. And it is long overdue for a correction. Sadly, I could randomly select dozens upon dozens of cases to make the same point the Lohrenz case makes.

Scalia is correct: Everybody should be able to protect their reputations. But not until New York Times v. Sullivan -- which literally changed the law of the land overnight -- is reversed, will that ideal be a reality.

Hopefully, Justice Scalia was giving us a hint of coming changes at the Court, when defamation cases are heard. At a minimum, the Court ought to make clear that only true public figures are deemed public figures for defamation law - for current law only encourages the victimization of private persons. Better yet, the Court should chose a more realistic standard than "actual malice" - one under which even public figure plaintiffs who are lied about, can get justice.