So to Speak podcast transcript: Sarah Palin v. New York Times

March 7, 2022

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak: The Free Speech Podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am your host as always, Nico Perrino. And I’m joined today by two guests who you all should be very well familiar with at this point, we’re joined by Bob Corn-Revere, he is a partner at the law firm of Davis Wright Tremaine and the author of the recently released and recently covered on this podcast, The Mind of the Censor and the Eye of the Beholder. Bob, welcome back.

Bob Corn-Revere: Thanks, Nico, it’s good to be back.

Nico: And then, we have David Hudson who is an assistant professor of law at Belmont University and a Justice Robert H. Jackson Legal Fellow for FIRE, he was most recently on the podcast to discuss true threats. David, welcome back.

David Hudson: Thanks for having me.

Nico: So, I wanted to get you two on the podcast quickly. Just this week, we learned that the judge had dismissed the case in Palin v. New York Times, as the case that has really rankled the First Amendment community because we thought that there was an opportunity here where some attacks on New York Times v. Sullivan, or overturning of The New York Times v. Sullivan precedent, as it relates to defamation might happen.

The judge ended up dismissing the case because he felt that it didn’t reach the standard of actual malice, which was set in New York Times v. Sullivan. And he did this, curiously, while the jury was still deliberating on the case. The jury ended up not ruling for, or coming down on the side of Sarah Palin. There’s also been some reporting that they heard about the judge’s ruling while they were deliberating. That’s an interesting question, maybe we can discuss that here. But a little bit of background about this case.

So, in 2017, many of our listeners will remember that there was the shooting during the baseball practice for the Republican congressional team. Every year, Republicans play the Democrats in a baseball game. And leading up to that baseball game, the two sides practice. In this case, the Republicans were practicing at a park in Alexandria, Virginia and a gunman came to the park, ended up shooting at the Congress men and women. And injuring, most famously, Steve Scalise. I believe a couple of other people were shot. Afterwards, the New York Times ran an editorial about heated political rhetoric.

And the editorial erroneously linked a map that Sarah Palin’s congressional committee 2010 had put out, that targeted 20 different congressional districts with some stylized crosshairs. They linked that map to the shooting in 2011, that ended up killing six people and injuring Congresswoman Gabrielle Giffords. Her district was one of the districts that had the stylized crosshairs on it. This became a talking point after that shooting, you heard it alleged all around that these crosshairs somehow incited the shooter to go after Gabrielle Giffords. That ended up being debunked, the shooter had a fascination with Gabrielle Giffords that went back to 2007, there was some mental illness concerns.

But it was a talking point, particularly on the political left, that was almost quickly debunked. I remember hearing about it after it happened. Fast forward to 2017, I believe it was June when the shooting happened. The New York Times runs their editorial, the original draft of the editorial, it turns out, did not draw that link between Sarah Palin’s congressional map and the shooting of Gabrielle Giffords. But James Bennet, who was the editorial page editor at the time, you might recall he resigned in 2020 after publishing an op-ed from a senator, I forget who the senator was –

Bob: Tom Cotton.

Nico: Tom Cotton, who said that we need to bring the military in to stop the civil unrest that was happening in the summer of 2020. Anyway, James Bennet, during the editing process, insert a line that said, “The link to political incitement was clear,” with regard to the Palin super PAC map. So, there was immediate pushback against James Bennet inserting that line, there was a correction issue the next morning. But Sarah Palin sued shortly thereafter, I believe it was 2017. Fast forward five years later, the case ends up in district court where, as I mentioned before, Judge Jed S. Rakoff dismissed the case on the grounds that Palin didn’t prove actual malice.

And the crazy part about this is he did it while the jury, because this was a jury trial, was deliberating on the facts of the case. And Sarah Palin, obviously not happy about this, said to a reporter afterwards, “This is a jury trial and we always thank jurors, we always appreciate the system. So, whatever happened in there kind of usurps the system, that I believe we are so used to and respect and work.” So, let’s kinda start there. How odd is it that a judge is gonna come in and issue a ruling like this while a jury is deliberating during a jury trial?

Bob: Well, it’s highly unusual. And typically, if the judge is going to overrule a jury’s decision, that comes after the jury actually decides. Here, he sort of preempted that and announced his own decision. And announced it to the parties, not to the jury, to basically, as you said, as a matter of fairness to both sides, saying that the plaintiff had not made a crime official case. The jurors did not intentionally become aware of it; a few of the jurors had pushed notifications for news on their phones. And that’s how they discovered that this happened.

Judge Rakoff had his clerk talk to the jurors to see if learning of his decision made any difference to their deliberations, they uniformly told him it did not. And the jury unanimously came back basically throwing out the case. But I have to say, this is a case that has everything. Think about it, you have polarizing political figures, you have the newspaper of record, which is the source of the leading precedent on defamation and the First Amendment, New York Times v. Sullivan, back decades later to defend that standard. You have unusual procedures, both of the district courts before it went to Court of Appeals. And then, later with this latest decision.

You have twists and turns, unexpected outcomes, and ultimately, a ruling that The Times did not defame Sarah Palin. So, it’s notable for all of that. And all of that is happening against a backdrop, in which at least certain justices are suggesting it’s time to reconsider the precedent in New York Times v. Sullivan. So, this is a case that has everything.

Nico: Yeah. And I wanna work on that background for our listeners because they might not be familiar with what defamation law requires, in order for a public figure to prove it. Or the facts of the New York Times v. Sullivan. But Bob, before I turn that over to David to kind of go over that background, why would the judge do this in the middle of jury deliberations? Is there a reason?

Bob: Well, he said that the reason was so that both sides would be aware of it. That he understood there was a likelihood of appeal, they wanted to give him the benefit of his thinking. And of course, he was doing it just with the parties, informing them and not informing the jurors. And you can say it’s a judgment call, but it is highly unusual. You don’t really see this.

Nico: David, what’s required of Sarah Palin to win a case such as this? Going back, calling on the New York Times v. Sullivan case, which I guess isn’t actually leading precedent, Eugene said, it’s the…what is it? Cyprus Publishers or something? Anyway.

David: Well, Sarah Palin is a classic public figure. So, defamation law distinguishes between public officials and public figures on the one hand, and so called private persons. And in New York Times Company v. Sullivan, which was decided by the Supreme Court in 1964, the US Supreme Court created the so called actual malice standard.

Which, essentially, established that when a public official is suing for libel, for statements that they have to prove by clear and convincing evidence that the alleged defamer spoke, knowing the statements were false, or acting in reckless disregard as to the truth or falsity of those statements. And it’s that actual malice standard that has protected the press fairly well, I think, for several decades. That the US Supreme Court has extended the actual malice standard in Butts and Walker, I think in 1968, to apply not just to public officials, but also public figures.

Nico: And that’s what I was getting at. So, it’s Curtis Publishing v. Butts, which extended it to public figures, not [inaudible – crosstalk] publishing.

David: Yeah. And then, it also applies to even limited purpose public figures. I think that’s where there is some controversy. What exactly is a limited purpose public figure? There’s some that argue that that line is rather hazy and a bit nebulous, and that some of these people who are not like Sarah Palin – But I guess an example would be the McKee v. Cosby case, was McKee a limited purpose public figure? I think that was one of the reasons why Justice Thomas wrote his separate opinion and criticizing Times v. Sullivan.

But there is a fundamental difference between, on the one hand, a public official and a private person, that public/private distinction. In other words, the status of the plaintiff is a very important factor in defamation cases. And in fact, what will sometimes happen is there’ll be a motion for partial summary judgment, seeking the court to declare that a plaintiff is a public figure of some sort. And then, later, there’ll be a full motion for summary judgment, saying that it doesn’t meet the actual malice standard.

Nico: So, there’s no question here that Sarah Palin is a public figure. Right?

Bob: Well, that’s right.

David: No question.

Nico: And then, the question just becomes the facts of the case, can she or should she have won? Did she have a colorable argument here, Bob, what do you think?

Bob: I don’t think so. And I think to understand that, I think an even more basic sort of a discussion of this area of the law might be useful. Defamation law is a version of tort law, which is just like traffic accidents, like if you bump into somebody with your car and you can get sued for having caused an accident. The question is whether or not you were at fault in causing that accident, in causing someone to be injured. And the same is true if words are used in a way that damages somebody. And it’s always been a function of state law since the beginning of our legal system.

The issue in New York Times v. Sullivan is whether or not there are First Amendment limits on how you apply these state rules of liability. And the court established, in that case, that when you’re talking about protecting the press, particularly when the plaintiff is a public official, and then later on, we had public figures added to that, but in those cases, that the First Amendment erects a high bar and makes the plaintiff prove a really significant burden before liability can attach.

And that’s the actual malice standard. The actual malice standard is that the plaintiff has to prove that the defendant published facts of and concerning that plaintiff in reckless disregard. Meaning, knowing it was false or in reckless disregard, whether or not it was true or false. And here, that was the burden that Sarah Palin faced in this case, that that highest level of proof was her burden. And in this case, basically, it was a very, very sort of shoddy and circumstantial set of allegations, that The Times intentionally set out to defame her.

There was even a further threshold question. Although, both the district court and the Court of Appeals decided that if Palin had met this test, of whether or not The Times editorial even published a false fact about her, or whether or not it was an opinion. And they were talking about whether or not inflammatory political rhetoric was political incitement, whatever that means. As opposed to actually inciting someone to cause a crime, which is really a separate thing.

Both the district court and the Court of Appeals felt that it met that threshold, that there was a direct political incitement was enough to meet that threshold. But then went on to find that the actual malice test had not been met. And here are the allegations that Palin made, were that James Bennet was a political liberal who had written about topics like that, both when he was editor at The Atlantic. And that his brother is a senator from Colorado, who Palin had endorsed his opponent.

And also, suggesting that while he was editor at The Atlantic, that Bennet had edited articles that debunked the link between her political action committee mailing and the actual act of violence. So, those were the allegations. And that was, like I say, shoddy at best. And in this case, the judge looked at that even after the plaintiff had put on her evidence, and said, “This isn’t a plausible allegation of actual malice.”

Nico: Yeah. My thinking here, and this isn’t a legal thing, it’s just kind of playing devil’s advocacy is like, okay, is the argument that he is biased in some way, which may or may not be true. But many of us are bias and we overlook truth and falsity when it’s supportive of our side. That doesn’t necessarily mean he did it maliciously, it’s just human biases creeping into the process.

And you hope you have various stages in the process to help check those biases. But that last point you made, Bob, about having edited articles that debunked this, might be a more colorable claim of reckless disregard for the truth if he should have known. Because there’s actual facts in the record that suggest he did know at some point, or maybe he forgot, I don’t know.

Bob: Well, right. And that was the argument that was being made, that he would know. Although, there was no indication that he had been involved with those actual articles. He happened to be editor at the time they were published by the Atlantic. And Bennet testified that he had no recollection of having seen those articles. And ultimately, what it came down to is whether or not this was an honest mistake. Maybe you can call it shoddy, the way it was done, when you’re on deadline and you’re rushing to get an editorial out.

As I recall, he was editing it within like 40 minutes of the print deadline. That another editorial writer at The Times had written the initial draft; it was then sent to Bennet to make final edits, and he added the line that led to the lawsuit. And the question is whether or not that was done with actual malice, or whether or not this was something done under the pressure of trying to meet a deadline when you have a big story, like this shooting of the Republican baseball team at their practice.

And mitigating factors too are that The Times instantly issued a correction, changed the actual text of the editorial to say that no link has ever been established. And I think they sort of almost backhanded allegation of fact, saying that this was a shown link to political incitement. I think all of those factors together indicated there wasn’t a plausible case here.

Nico: David?

David: Yeah, Nico, Bob was absolutely right about introducing the concept of tort law. And I think when we look at tort law, there are really three theories of liability. There’s torts of negligence, or the concept of negligence. There’s intentional torts, and there’s a concept of strict liability. And I think what this case shows is there’s a fundamental difference between somebody being possibly negligent, and them rising to the level of recklessness or intentional conduct, right.

And so, here, I think at best, Palin’s lawyers might be able to show that Bennet was negligent. But they could not show that he could rise to a level of actual malice, right, which is much higher than negligence. And in 1974, in Gertz v. Robert Welch, the US Supreme Court said that a private person plaintiff, essentially most of the time under state law, has to merely show that the publisher was at fault or negligent. And there’s just a massive difference in the law between negligence and actual malice.

Bob: Yeah, it all comes down to the standard, which is why journalists are so nervous about whether or not the Supreme Court would revisit the precedent in New York Times v. Sullivan.

Nico: Yeah. The standard is very high to meet if you try and sue a newspaper for factually incorrect reporting, right? Especially if it’s reporting on a public figure or public official. But people still do it. Are they ever successful? What does a successful claim look like in one of these cases?

Bob: It is possible to prevail. David, you might have more ready examples of public officials or even public figures who have prevailed. The recent verdict in the Cardi B case is one example, where a YouTuber basically just making stuff up about Cardi B, obviously a public figure.

Nico: Cardi B, the rapper?

Bob: Yeah.

Nico: Right, yeah.

David: Yeah. So, the essence of defamation is a false statement of fact that harms someone’s reputation. If someone makes a statement that is clearly false, and is clearly a factual statement that has defamatory meaning, then that very well may rise to the level of a cognizable defamation claim. Keep in mind, there’s a litany of defenses that are available, right?

Truth is a defense. Not just truth, but the substantial truth doctrine essentially means that if the gist of the statement is correct, that there’s a defense. There’s what I sometimes refer to as the Donald Trump defense, rhetorical hyperbole, right. Sometimes speakers can engage in incredibly overblown language, and therefore, they can escape liability. Look at Clifford v. Trump –

Bob: Right. And the context in which the statement is made, always is a factor that you look at. And here, the fact that it was in an editorial is a factor that sets this case out a bit from others. The fact that you call it an opinion doesn’t necessarily shield it. If a statement of opinion appears to be based on a statement of fact that is false, then it can still lead to liability. But the fact that it is done in the opinion format is something that you look at, whether or not this is indeed a statement of fact.

Nico: So, where does the case go from here then? The assumption I believe is that Sarah Palin will appeal? Or does it go into the Second Circuit?

Bob: Well, yeah, and it’s already been to the Second Circuit as I said. This is a case that has had a lot of twists and turns. Originally, Judge Rakoff had dismissed the case. But he did so, again, with an unusual procedural twist, in that before ruling on The Times motion to dismiss, he had conducted an evidentiary hearing where he had the editor, James Bennet, testify. And then, at the conclusion of that rule that dismissed the case, ruled that Sarah Palin had not plausibly alleged actual malice.

That then went to the Second Circuit, which reversed that decision, saying that you can either rule on the pleadings in a motion to dismiss, or if you’re going to look at outside information, additional evidence like the testimony of James Bennet, then you have to convert it to a motion for summary judgment. You can do one or the other, but not elements of both. And so, sent it back on that procedural ground, but at the same time, made clear that it wasn’t assessing the merits of the claim or how plausible the allegations were.

So, now that it’s gone back and there’s been a trial and the ruling, both by the judge, and then sort of confirmed by the jury, the question is whether or not Sarah Palin will appeal. I’ve seen opinions on both sides, saying that she may well because of these unusual procedures that would be grounds for appeal. Although, frankly, with the jury coming back and confirming the judge’s assessment of the law, it makes it a very steep climb.

Nico: The status and fate of New York Times v. Sullivan, there’s been much made of this in recent years, especially since Donald Trump started making hay of it, starting in 2015/2016. You’ve heard from justices on the high court eagerness to revisit the standard, Clarence Thomas has promised most famously, but Judge Gorsuch as well.

Eugene Volokh wrote for The Volokh Conspiracy that he doesn’t think this case is the case that the court would revisit the
standard. He said that there was a new recent New York state statute that adopts the actual malice standard test as a matter of state law. So, whether or not it applies as a matter of First Amendment law is immaterial to this case, because you would rule on the state law.

But, David, you were talking before we started recording, there’s another case coming up through the pipeline involving the, what is it, the Southern Poverty Law Center that Gina thinks might be a better applicant if the court wants to revisit the standard? Yeah, some of you have mentioned this case. It’s Coral Ridge ministries media v. Southern Poverty Law Center, that Eugene thinks it might be a better applicant, if the court wants to revisit the standard.

David: Yeah, some have mentioned this case, it’s Coral Ridge Ministries Media v. Southern Poverty Law Center. I think it’s docket No. 21-802. And it involves –

Nico: Of course you know that.

David: Well, I looked it up today. See, the thing about it is Times v. Sullivan was decided – it’s a civil rights decision, it’s not just a First Amendment decision. It was decided at the height of the civil rights movement, when various southern officials were suing media entities for defamation because they were reporting about various human rights and civil rights abuses that were taking place, particularly in the south. And the actual proceedings in the Alabama State courts were a joke, in a sense, racist trial judge, you had statements of clear public concern, the most important issues.

And you also had the media facing a staggering amount of liable lawsuits all across the country. And that’s why Anthony Lewis, in his famous book, Make No Law, says that Times v. Sullivan didn’t just constitutionalize libel law, it also saved the civil rights movement. Well, they are now some that look back on that and say, “Well, maybe the court realized the complete unfairness that occurred in the Alabama State court, with a all-white jury, imposes on a $500,000 state libel law judgement against the New York Times.

And so, the court came in and created a standard to try to correct things. And critics say, well, maybe they overcorrected it, particularly as Times v. Sullivan is progeny developed. And so, what the petition does in the Coral Ridge case, which involves a religious group that makes statements, biblical statements against homosexuality, essentially, citing Leviticus and such. And so, the SPLC label them as a hate group. Now, query, is there an alternative basis to deciding this underlying case is that a provably false statement of fact under Milkovich v. Lorain Journal, which is a 1990 US Supreme Court decision, or is it more opinion?

So, there may be an alternative basis to decide it, as the SPLC says in their opposition brief. But what the Coral Ridge brief does do is it does identify several justices, who through the years have criticized Times v. Sullivan. Justice White criticized it in his concurring opinion in, I think, was it done in Broadstreet? Chief Justice Burger criticized it. Justice Scalia, in an interview with Charlie Rose, said he abhors Sullivan. And then, Justice Kagan wrote some things about Times v. Sullivan in a 1993 law review article.
But then, you have two justices who were on the Supreme Court. You had Justice Clarence Thomas writing a separate dissent from a denial of cert in McKee v. Cosby, and also Berisha v. Lawson. And then, Justice Gorsuch wrote a separate dissent from a denial of cert in Berisha v. Lawson. And since 1924, the US Supreme Court has operated under the Rule of Four, at least that we know of, it may have been operated under that previously, but that’s when it was first made public. So, it only takes four justices to review a decision. And you’ve got Thomas and Gorsuch who are clearly on record saying, when the right case comes along, we need to revisit Times v. Sullivan.

It only takes two more. Some have speculated maybe Justice Kagan might have some interest, given the 1993 law review article, I don’t know. But that’s why the time may be right for the court to look at it again.

Nico: What would a different standard look like for public officials and public figures? Would it just be negligence? What would you argue at a lower standard, at least in this Palin case, that he should’ve known or had that lie and fact checked, or?

Bob: Well, it’s a much more complicated question today. And I think that was the focus of Justice Gorsuch’s separate opinion. And by the way, I should make clear that both of these recent opinions by Justice Gorsuch and by Justice Thomas, came in sort of just two of gratuitous statements made in the course of descending from a denial of cert. And in one case, not even a dissent, in the Cosby case, Thomas just said, “I agree that we shouldn’t take this case, but let me tell you what I think.” And then, went on to say that New York Times v. Sullivan should be overruled.

So, these aren’t really opinions of the court, or even dissents from opinions in denial of cert. But they tell you where those justices stand. With Thomas, I think not a huge surprise. His position is that New York Times v. Sullivan does not comport with his originalist understanding of the Constitution, that it was adopted as a policy matter by the court in 1964. Justice Gorsuch gives what I think is a much more thoughtful analysis. Although, I don’t agree with it, but still says that he doesn’t see an originalist argument for New York Times v. Sullivan, and even suggests that the notion that the First Amendment is designed only to prevent prior restraint may have been what the framers wanted.

Although, the ship has long sailed on that theory. But then, he goes on to say that things are so different now because the power of gatekeepers has eroded, that everyone can speak to the world through the internet, and all of these issues, make the determination of what is factual a much more difficult issue. He raises a number of questions that are serious questions, that people are groping with today, both as a matter of policy, but also as a question of what the doctrine should be.

And so, your question about what a new standard would look like, is much more complicated in this world as opposed to the world of 1964, when you had a relative handful of gatekeepers and prominent media organizations with professional journalistic standards and all that comes with that. So, if the Court were to take up the question again, that would be sort of a real question of how they would view these issues.

David: And remember, if we go back to Times v. Sullivan, there were some justices that thought that Times v. Sullivan didn’t go far enough in its protection of the press. Justice Hugo Black, Justice William O. Douglas, they were wanted to say absolute immunity for the press when they report on public officials –

Bob: Well, certainly for reporting on public officials.

Nico: Yeah. What would the risk be, I shouldn’t say to the First Amendment, but to the culture of free expression in America be, were America to lose the New York Times v. Sullivan standard? Not just culture of free expression, but also the free press.

Bob: Well, this is the kind of thing that the term ‘chilling effect’ was coined for. A chilling effect means that you can intimidate the press or anyone else into silence if you can make a credible threat of what would happen. And I’ll give you an example. It’s well known that the protections for free speech in the United States are much more robust than they are, even in other countries that enjoy protections for freedom of expression. England, for example, and under their libel laws, it’s much more easy for a plaintiff to win a judgement, even a public official, than in the United States.

And in 2014, Cambridge University Press withdrew a book that it was planning to do on Vladimir Putin, alleging corruption and various things. And because of the threat of libel under English law, that title was withdrawn. In the United States, you don’t face that kind of chilling effect and that kind of self-censorship. But if you change the rules of liability, and have a more, say, European approach, that allows plaintiffs a lot more latitude in succeeding in a libel claim. I would expect to see more of that kind of thing.

Nico: I was recently having a conversation on this podcast with the official biographer for George Orwell. And I read the biography, obviously, before the conversation. And one of the things that was a through line through George Orwell’s life were the defamation considerations that he and his publishers needed to consider with every book he wrote. There were a lot of books or manuscripts that he submitted that just got chopped up because of the defamation considerations, some that never got published because of the defamation considerations.

His first book about his time in Southeast Asia, for example, he had to change all the names and to not only go far away from having any colorable claim that he was defaming anyone, but to go very far away. So, to lose New York Times v. Sullivan, if nothing else would be a boon to insurers can charge much higher rates. And to attorneys like yourselves, who would be much busier defending some of these claims. There’s nothing stopping someone from filing a defamation lawsuit if they wanted to, just doesn’t get very far. And you have these anti-SLAPP statutes that help even more.

Bob: Well, that’s right. And one of the questions that I often get when I talk to a prospective client is can I get sued if x happens? Well, the answer to that question is always yes because anyone can bring a lawsuit, as you say. The question is whether or not they’re likely to win, and that’s where the legal standards, the thresholds, are critical. And having strong protections and presumptions in favor of free expression are what separates the United States from other countries. And as I say, even countries that otherwise have protections for free expression, just not the same protections that we have.

Nico: Yeah. So, David, pitch it over to you, anything else to add on the question of what a standard might look like if it was less than the actual malice standard for public officials or figures? Or what the effect would be, to get to my latest question, on the culture of free expression in a free press in the United States?

David: Yeah. I would very much worry. I agree with Bob, it would create a chilling effect, maybe a freezing effect. What Justice Brennan wrote in Times v. Sullivan is the error is inevitable in free debate. And I would worry about a lesser standard, that it would not be sufficiently protective of freedom of expression. That’s why, not to be a shameless sycophant, but that’s why Bob’s book is so brilliant. Because he identifies the easy impulse of censorship and why we need robust protection.

And I’ll always remember Justice Brennan’s line in Times v. Sullivan, “A profound national commitment, a debate on public issues should be robust, uninhibited, and wide open. And often include vehement shark and caustic attacks upon public officials.” And that’s what we’ll lose, is we’ll lose some people willing to take tough stances and criticize government officials because the essence of the First Amendment is the ability of individuals to criticize the government.

Bob: Well, that’s right. And it’s not that we lack for cautionary tales when it comes to this. Going back to the years just after the founding, where you have the Adams administration, the Alien and Sedition Acts being passed to dampen criticism of the President, strangely not the vice president. And you had 8 to 12 editors who went to prison under the Alien and Sedition Acts, their newspaper shuttered. And one of the elements of the Sedition prosecutions were that they were alleging false facts.

And although that law was ultimately lapsed and no longer existed and was never subjected to a court test, Thomas Jefferson said after it lapsed that those laws were as probably unconstitutional as if Congress had ordered us to fall on our knees and worship a graven image. That is in our historical background for why we have these kinds of protections. And I think it forms the essential background for why New York Times v. Sullivan was so critical in the development of First Amendment doctrine.

But you don’t have to look that far back to see cautionary tales, as in when Donald Trump was running for president in 2016, and pledged to open up the libel law, you would see prosecutions like you’ve never seen before, you’d see suits like you’ve never seen before, all over the place. I think that’s the kind of thing that people are worried about. And it’s not just one political side or the other, the concern comes from both sides because whoever is in power or whoever feels like they have a grievance, regardless of their political position, will use a black standard to clamp down on criticism.

Nico: By way of closing here, I’m gonna ask you two to fortune tell. And I’ll start with you, David. Is the writing on the wall for a revisiting of the standard at the United States Supreme Court? And if so, where do you think this current court would come down on the issue?

David: Oh, that’s a tough one. I do think at some point they are going to revisit it. I think, as Bob said, I think that we can see sort of the thinking of two of the justices, Clarence Thomas and Neil Gorsuch. And I think it may be simply to take a case and reaffirm the vitality of it. I would not expect Times v. Sullivan to be overruled, I think the only potential danger would be that it might be cabined slightly. I do not see Times v. Sullivan being overruled.

Bob: I agree with David. I don’t see the court overruling the New York Times v. Sullivan; it is such a pivotal and landmark ruling. And although, there have been some critics of it, some sitting on the court today, you also have seen the court, in a broad sense, very protective of First Amendment values. I know some have suggested that the court has been critical of the media.

It’s made anti media comments in various of its opinions. I tend to think that’s reading the tea leaves just a bit too much. But I would also agree with David that if there is a reexamination, you may have the court looking at some of the changes in the media landscape that have occurred in the past decades and try to come up with a standard that acknowledges those changes. What that will look like is anybody’s guess.

Nico: All right, I think we’ll leave it there. Gentlemen, I appreciate you coming back on the show. Bob, David, I hope to have you both back on sometime again soon. Yeah, thank you. That was Bob Corn-Revere who is a partner at the law firm of Davis Wright Tremaine. And David Hudson, who is an assistant professor of law at Belmont University. David is also a Justice Robert H. Jackson, legal fellow for FIRE. And Bob, you got the plug from David, has a new book out. I hope you all get it. We reviewed it on this show a couple of weeks ago? Months ago at this point? I forget what it was. The book is called The Mind of the Censor and the Eye of the Beholder, and it can be found wherever fine books are sold.

Again, that is The Mind of the Censor and the Eye of the Beholder. This podcast is hosted, produced, and recorded by me, Nico Perrino, and edited by Aaron Reese. To learn more about So to Speak, you can follow us on Twitter at twitter.com/freespeechtalk, or like us on facebook@facebook.com/sotospeakpodcast. We take email and feedback if you have any, at sotospeak@thefire.org. And reviews help us attract new listeners to the show, so if you’re listening to this show on a place or an app where you can review it, please do. I will forever be grateful for you doing that. And until next time, as always, I thank you all again for listening