Target PracticeJustice Scalia sets his sights on New York Times Co. v. Sullivan.

Remarks from the Fray Editor:

Pinning a lawyer to a position can be like wrestling the proverbial greased pig. That's why I'm enamored with this suggestion from Occasional Observer for restructuring Senate interviews of judicial nominees. Senators would hold up flash cards containing the names of landmark cases. Nominees would be compelled to describe their opinions of the case with one of four single-word answers: uphold, overturn, expand, or limit. I haven't reproduced it below, but this post from slasher_14 is also highly worth reading. —G.A.

Remarks from the Fray:

Implicit in Lithwick's piece is the notion that NY Times v. Sullivan is a liberal decision that liberals should circle the wagons around, lest the new conservative majority seek its reversal. I don't know if liberals should be too defensive about that case.

Even if one agrees with its basic premise in principle, I think the practical affect of Sullivan has been to encourage the likes of Rush Limbaugh and generally turn the media into a hysterical pack of gossipy wolves.

If conservatives succeed in reversing Sullivan, the result may be more civility in the media, which would probably help the ideology that is most robust when confronted with calm, intelligent argument. In my opinion, conservatism would be the loser in that new media world.

--zbird

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Today, as we read and write this, some reporter and editor are reviewing a political advertisement the ad department has been asked to run by a local citizens group. This paid ad contains an important story. It's a story that could have immediate implications for readers. It's a story that includes serious accusations that a government official is acting in a way that could prove to be very damaging to citizens. Based on everything they've ever been told by anyone, the reporter and editor firmly believe every element of the story. There is nothing in what they have collected that raises any questions about the story. In an abundance of caution, they ask the legal department to review the ad. The legal department, giving a perfect application of New York Times vs. Sullivan, gives them the green light to publish.

The government official who is implicated in the ad brings suit. At trial, he raises the outlandish argument that New York Times vs. Sullivan should not control. Instead, he argues, the newspaper should be liable for negligence. They should not be protected by the rule that only punishes them for publishing what they actually don't believe about a public official. They should have to pay if reasonable journalistic efforts would have uncovered a contrary story.

This argument comes as quite a surprise to everyone else in the courtroom, not least to the reporter and editor, who were told, back when this thing was happening in the real world, that NYT/Sullivan protected them.

The trial judge and all the intermediate appellate courts scoff at the argument, and rule in favor of the newspaper.

The Supreme Court of the United States, however, in a landmark opinion by Justice Scalia, overrules NYT/Sullivan and sends the case back for a new trial.

At the new trial, the aggrieved public official gets a paid journalism professor from Local U to take the stand. He's got a tweed jacket and gray hair and half-moon glasses and a list of credentials as long as your arm, but he hasn't actually worked as a journalist in 3 decades. He testifies that a reasonable journalist would not have accepted this ad without waiting two weeks for blood tests or some such thing to come back. Every real journalist in the room laughs all night long at that whopper, but the jury eats it up, and renders a $1 million verdict against the newspaper.

That's what you're talking about when you talk about overruling NYT vs. Sullivan. That's what you're talking about when you propose overruling any long-settled precedent.

--RonB52

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You have to be pretty naive to think that Supreme Court Justices have been studiously deciding cases only on a case-by-case basis, ignoring any future implications of their decisions, for the past 200+ years. Hello, Marbury v. Madison, anyone? In fact, I would think that any Justice that did not consider future implications of a decision would be pretty much negligent in his or her duties.

Is it really earth-shattering to learn that some Justices have cultivated a defined jurisprudence that guides how they approach cases? From Chief Justice John Marshall, the noted Federalist who stood athwart the plans of Thomas Jefferson and the Anti-Federalists, to Justices Holmes, Black, Brandeis, Brennan...the list is long. Typically, the more notable Justices were the ones who did have an ideology that stood out as compelling.

The only difference, it seems, is that Justice Scalia is willing to put his mouth where his quill is. The only thing this shatters is the silly notion that Supreme Court Justices -- the people who sit at the very highest chair in the federal judiciary -- simply don't think much about the law outside of whatever happens to land on their desk. If there was ever a position from where it would be most apt for someone to contemplate the whole of the law, the U.S. Supreme Court would be it. And I would hope that every Justice has had such thoughts during their tenure, if they weren't having them already. It's no secret that the Justices have pre-conceived notions about things, just like every other lawyer out there. Why should we pretend they are sphinxes?

--Sycamancy

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