DePaul Law Review DePaul Law Review
Volume 73
Issue 4
Spring 2024
Article 3
New York Times v. Sullivan at 60: Where Does Defamation Law Go New York Times v. Sullivan at 60: Where Does Defamation Law Go
Now? Now?
John Bruce Lewis
Bruce L. Ottley
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New York Times v. Sullivan at 60: Where Does Defamation Law Go Now?
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73 DePaul L. Rev. 995 (2024)
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995
NEW YORK TIMES V. SULLIVAN AT 60:
WHERE DOES DEFAMATION LAW GO NOW?
John Bruce Lewis* & Bruce L. Ottley**
Table of Contents
Introduction ................................ 996
I. The Actual Malice Standard:
The Intersection of Law, Politics,
and the Media ......................... 1001
A. Sarah Palin v. New York Times............... 1002
1. The Case Background................... 1002
2. The Times’s Motion To Dismiss........... 1004
3. The Trial .............................. 1005
4. Ruling on Sarah Palin’s Post-Trial Motion ...1007
5. Appeal to the U.S. Court of Appeals for
the Second Circuit . . . . . . . . . . . . . . . . . . . . . . 1008
6. Palin’s Background as a Public Figure . . . . . 1010
B. The Two E. Jean Carroll v. Donald J. Trump
Lawsuits.................................. 1013
1. Trump’s Responses to the June 2019
Statements by Carroll ................... 1014
2. The Second Carroll Action ............... 1015
3. The Motions in the Carroll Litigation
Continue .............................. 1016
4. Motions Regarding the Preclusive Effect
of Carroll II Verdict On 2019 Statements ... 1018
C. Dominion Voting Systems v. Fox News
Network...................................1022
1. The Background to the 2020 Election
Defamation Cases . . . . . . . . . . . . . . . . . . . . . . .1022
2. U.S. Dominion, Inc. v. Fox News Network,
LLC...................................1028
a. The Dominion Complaint .............1028
b. Fox News’s Motion to Dismiss ..........1030
c. Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . .1033
d. Settlement and Aftermath ..............1035
996 DEPAUL LAW REVIEW [Vol. 73:995
II.
NEW YORK TIMES V. SULLIVAN
: Political,
Legislative, and Judicial Challenges ......1040
A. Political and Legislative Challenges ............1041
1. Donald Trump: Open Up Libel Laws! . . . . . .1041
2. Governor Ron DeSantis and
“Media Defamation”.....................1047
3. Florida Legislature: A New Approach
to Defamation ..........................1048
B. Judicial Challenges ..........................1052
1. Early Critics of Sullivan . . . . . . . . . . . . . . . . . .1052
2. Justice Clarence Thomas and Originalism ...1054
3. Justice Neil Gorsuch and the Shifting Media
Landscape .............................1061
4. Shrinking Local Newspapers and the
Continuing Impact of the
“Actual Malice” Standard .................1062
III. Can Defamation Proceedings Be Improved
Without Doing Away With the Actual
Malice Standard? ......................1066
A. The New York Anti-SLAPP Law ..............1067
Conclusion .................................1072
Introduction
In March 1964 the Supreme Court decided New York Times v. Sullivan,
1
a decision arising from the emerging civil rights movement of the late
1950s and early 1960s. The lawsuit led in Montgomery, Alabama, in
April 1960, by the three city commissioners, including Commissioner
of Public Affairs, Lester B. Sullivan, against the New York Times was
part of a broader strategy by some white Southerners to frighten the
Northern press and blunt reporting on and criticism of their often-
violent reaction to the demands of Blacks for equal rights.
2
That legal
assault on the civil rights movement resulted in the Supreme Court’s
unanimous decision to abandon long-standing common law principles
* © Lewis & Ottley 2024. Adjunct Instructor, Case Western Reserve University Law School,
Foreign LL.M. Program, B.A., J.D., University of Missouri; LL.M., Columbia University.
** Professor, DePaul University College of Law. B.A., University of Missouri-Kansas City;
M.A., J.D., University of Iowa; LL.M., Columbia University.
1. 376 U.S. 254 (1964). For an analysis of the background of the case and the opinion, see gener-
ally Samantha Barbas, Actual Malice: Civil Rights and Freedom of the Press in New York
Times v. Sullivan (2023). See also Lee Levine & Stephen Wermiel, The Progeny: Justice William
J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan 1–31 (2014); see gen-
erally Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (1992).
2. See Barbas, supra note 1, at 1–3; see also Aimee Edmondson, In Sullivan’s Shadow: The
Use and Abuse of Libel Law during the Long Civil Rights Struggle 1–16 (2019).
2024] NEW YORK TIMES v. SULLIVAN AT 60 997
governing defamation and, in their place, to adopt the actual malice
standard as the requirement for recovery in defamation cases brought
by public ofcials.
3
The decision proved to be crucial to the success of
the civil rights movement by removing the threat of large libel judg-
ments against those who criticized and acted against racial segregation.
In the 1970s, the Court expanded the application of the actual malice
standard from public ofcials to include public gures.
4
To recognize the 20th anniversary of the New York Times v. Sullivan
opinion in 1984, we authored a retrospective analysis of the litigation
that culminated in the Court’s decision.
5
In that article, we examined in
detail the historical background of the case, the genesis of the lawsuits
led in state and federal courts, the litigation strategies of the parties,
the trials and appeals, and the ultimate decision of the Supreme Court.
We concluded that the treatment of media defendants in defamation
cases in the twenty years after Sullivan was decided indicated that the
decision had produced a “rare and continuing consensus on the Court
that the [F]irst [A]mendment requires that the media be given special
protection in defamation cases.”
6
For the 50th anniversary of New York Times v. Sullivan in 2014, we
wrote a second article that evaluated the continued expansion and
impact of the actual malice standard during the ve decades since it was
decided.
7
The Sullivan decision initially was the subject of high praise
for its effect on the law of libel and on First Amendment rights, and for
protecting newspapers and the civil rights movement from potentially
stiing damage awards. Over the years, however, some critics asserted
that Sullivan needlessly ignored common law standards, that it failed
to stem the tide of large verdicts in libel cases, and that the actual mal-
ice standard operated as a catalyst for the expenditure of even greater
defense costs.
8
Despite those concerns, we found that the courts and
Congress had applied the actual malice standard not only to the tradi-
tional media but had expanded its scope to protect freedom of expres-
sion in a variety of areas, including intentional iniction of emotional
3. Sullivan, 376 U.S. at 279–280.
4. Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 (1967); Gertz v. Robert Welch, Inc., 418 U.S. 323,
335–36 (1974). See Catherine Hancock, Origins of the Public Figure Doctrine in First Amendment
Defamation Law, 50 N.Y.L. Sch. L. Rev. 81, 83–85 (2005–2006); Barbas, supra note 1, at 224–26
(describing the expansion of the actual malice standard to limited purpose public gures); Levine
& Wermiel, supra note 1, at 65–81.
5. Bruce L. Ottley, John Bruce Lewis & Younghee Jin Ottley, New York Times v. Sullivan: A
Retrospective Examination, 33 DePaul L. Rev. 741, 741 (1984).
6. Id. at 779.
7. John Bruce Lewis & Bruce L. Ottley, New York Times v. Sullivan at 50: Despite Criticism, The
Actual Malice Standard Still Provides “Breathing Space” for Communications in the Public Interest,
64 DePaul L. Rev. 1, 1–2 (2014).
8. Id. at 27–36.
998 DEPAUL LAW REVIEW [Vol. 73:995
distress and labor cases, not contemplated by the Supreme Court in
1964.
9
We concluded that the events of the rst fty years of the deci-
sion revealed that the actual malice standard had proven workable in
the multifaceted areas in which it has been adopted by providing what
the Court described as “breathing space” for a wide variety of commu-
nications made in the public interest.
10
As New York Times v. Sullivan approaches its 60th anniversary,
the decision does not appear to be in immediate threat of reversal,
as evidenced by the Supreme Court’s June 2023 decision in Counter-
man v. Colorado
11
in which six Justices not only rejected a challenge
to New York Times v. Sullivan, but cited it and drew on the actual mal-
ice test to hold that the First Amendment does not protect statements
made by a defendant in a criminal case if they “consciously disregard[]
a substantial risk that his communications would be viewed as threaten-
ing violence.”
12
In October 2023, the Justices also denied the petition for
a writ of certiorari in Blankenship v. NBCUniversal,
13
where the peti-
tioner asked the Court to overrule Sullivan. Despite those decisions, the
actual malice standard, as the test in defamation cases involving public
ofcials and public gures, is being challenged more now by political
gures, judges, and scholars than at any time since Sullivan was decided.
Former President Donald Trump and Florida Governor Ron DeSantis
have called for the reversal of Sullivan.
14
Legislation to do so was intro-
duced in the Florida legislature in February 2023. Although the bills
were withdrawn in May 2023, due to what were said to be time con-
straints and the pressure to deal with more immediate issues, Florida
legislators have said they plan to reintroduce the bills.
15
In addition to the challenges raised by politicians and legislatures to
Sullivan, the decision also has drawn criticism from two Supreme Court
Justices. In June 2022, the Supreme Court reversed its fty-year-old
decision in Roe v. Wade
16
in Dobbs v. Jackson Women’s Health Organiza-
tion.
17
In a concurring opinion in Dobbs, Justice Clarence Thomas took
9. Id. at 36–63.
10. Id. at 64.
11. 600 U.S. 66 (2023). See Ann E. Marimow & Robert Barnes, Supreme Court Says a Convic-
tion for Online Threats Violated 1st Amendment, Wash. Post (June 27, 2023, 10:56 AM), https://
www.washingtonpost.com/politics/2023/06/27/supreme-court-true-threat-stalking/ [https://perma.
cc/2SFK-XKCW].
12. Counterman, 600 U.S. at 69.
13. 144 S. Ct. 5 (2023). See Devan Cole, Supreme Court Declines to Revisit Landmark Libel Rul-
ing, Though Clarence Thomas Wants to Reconsider the Decision, CNN (Oct. 10, 2023, 10:26 AM),
https://www.cnn.com/2023/10/10/politics/new-york-times-sullivan-libel-defamation-law-supreme-
court-case/index.html [https://perma.cc/69C8-QEAL].
14. See discussion infra, Part II.A.
15. See infra text accompanying notes 329–33.
16. 410 U.S. 113 (1973).
17. 597 U.S. 215 (2022).
2024] NEW YORK TIMES v. SULLIVAN AT 60 999
the position that the Due Process Clause of the Fourteenth Amend-
ment protects only procedural process and not substantive rights and
expressed a willingness to reconsider other longstanding decisions that
he felt were based on substantive due process.
18
Justice Thomas has
expressed his view that New York Times v. Sullivan should be recon-
sidered, if not overruled, in ve decisions since 2019.
19
In each of those
cases, he either concurred with, or dissented from, the Court’s denial
of writs of certiorari to review cases involving Sullivan or the Court’s
use of Sullivan in reaching its decision. Justice Thomas consistently has
based his argument on originalism, the theory that the Constitution has
a xed meaning based on the understanding of the words in the article
or amendment at the time of its adoption. Justice Neil Gorsuch also
expressed his view that Sullivan should be reconsidered in a dissent
from a denial of a writ of certiorari.
20
But, unlike Justice Thomas, Justice
Gorsuch based his dissent on his view that Sullivan no longer may be
needed because the media landscape has change drastically since 1964.
Finally, over the past decade, numerous scholars have written either in
support of Sullivan or calling for its reversal on the grounds espoused
by Justices Thomas and Gorsuch.
21
The purpose of this Article is to examine where the New York Times
v. Sullivan decision and defamation law might go in the next decade.
To achieve this goal, we will address three major developments that
could affect defamation and the actual malice standard. First, because
the actual malice standard is required by Sullivan in cases involving
public ofcials and public gures, this Article begins with an examina-
tion of the use of the standard in three recent high-prole defamation
18. Id. at 330–36 (Thomas, J., concurring).
19. McKee v. Cosby, 139 S. Ct. 675, 676 (2019) (Thomas, J., concurring); Berisha v. Lawson, 141
S. Ct. 2424, 2424–25 (2021) (Thomas, J., dissenting); Coral Ridge Ministries Media, Inc. v. S. Poverty
L. Ctr., 142 S. Ct. 2453, 2454 (2022) (Thomas, J., dissenting); Counterman v. Colorado, 600 U.S.
66, 106 (2023) (Thomas, J., dissenting); Blankenship v. NBCUniversal, LLC, 144 S. Ct. 5, 5 (2023)
(Thomas J., concurring). See Adam Liptak, Clarence Thomas Renews Call for Reconsideration of
Landmark Libel Ruling, N.Y. Times (Oct. 10, 2023), https://www.nytimes.com/2023/10/10/us/clar-
ence-thomas-libel-supreme-court.html.
20. Berisha, 141 S. Ct. at 2425–30 (2021) (Gorsuch, J., dissenting).
21. For examples of the literature criticizing Sullivan, see Carson Holloway, Rethinking Libel,
Defamation, and Press Accountability 1–22 (2023); Ed Whelan, Elaborating the Case Against
New York Times v. Sullivan, Nat’l Rev. (Oct. 14, 2022), https://www.nationalreview.com/bench-
memos/against-new-york-times-v-sullivan/ [https://perma.cc/GK28-UFQC]; David A. Logan, Res-
cuing Our Democracy by Rethinking New York Times Co. v. Sullivan, 81 Ohio St. L.J. 759, 810–13
(2020); Michael L. Smith & Alexander S. Hiland, Using Bruen to Overturn New York Times v.
Sullivan, 50 Pepp. L. Rev. 80, 98–106 (2023). For defenses of Sullivan, see Matthew L. Schafer, In
Defense: New York Times v. Sullivan, 82 La. L. Rev. 81, 84 (2021) [hereinafter Schafer, In Defense];
Jane E. Kirtley, Uncommon Law: The Past, Present and Future of Libel Law in a Time of “Fake
News” and “Enemies of the American People”, 2020 U. Chi. Legal F. 117, 117 (“Doing away with
the New York Times v. Sullivan rule is a dictator’s dream.”).
1000 DEPAUL LAW REVIEW [Vol. 73:995
actions led in federal and state courts. Sarah Palin v. New York Times
22
was decided by a New York federal court jury in February 2022 in favor
of the Times because Palin could not meet the evidentiary requirements
of the actual malice standard.
23
Among the issues in the case, which cur-
rently is on appeal to the U.S. Court of Appeals for the Second Cir-
cuit, is Palin’s request that the court overturn Sullivan.
24
Regardless of
how the appeals court decides that issue, it is likely that the Supreme
Court again will be asked to review the validity of the Sullivan deci-
sion. Unlike the Palin case, in Carroll v. Trump,
25
the plaintiff, a public
gure, did not challenge the actual malice test. Instead, she was able to
produce sufcient evidence that a New York jury concluded that she
met the standard and awarded her $2.98 million in damages for defa-
mation.
26
However, that did not end the litigation. After Trump made
further statements about Carroll that she alleged were defamatory,
Carroll led a second suit against Trump, resulting in a jury verdict of
$83 million.
27
That decision is being appealed by Trump.
28
Finally, U.S.
Dominion, Inc. v. Fox News Network
29
was one of about twenty law-
suits led as a result of allegations of fraud in the conduct of the 2020
presidential election.
30
As in Carroll, U.S. Dominion, Inc. also did not
22. The most extensive discussion of the facts in this case can be found in Palin v. New York
Times Co., 940 F.3d 804, 808–11 (2d Cir. 2019).
23. Jeremy W. Peters, Sarah Palin’s Libel Claim Against The Times Is Rejected by a Jury,
N.Y. Times (Feb. 15, 2022), https://www.nytimes.com/2022/02/15/business/media/new-york-times.
html [hereinafter Sarah Palin’s Libel Claim Rejected by a Jury].
24. Josh Russell, Sarah Palin Asks Second Circuit to Bring Back NY Times Defama-
tion Suit, Courthouse News Serv. (Nov. 6, 2023), https://www.courthousenews.com/
sarah-palin-asks-second-circuit-to-bring-back-ny-times-defamation-suit/.
25. The most extensive discussion of the facts in this case can be found in Carroll v. Trump, 49
F.4th 759, 761–64 (2d Cir. 2022).
26. Larry Neumeister, Jenifer Peltz & Michael R. Sisak, Jury Finds Trump Liable for Sexual
Abuse, Awards Accuser $5M, Associated Press (May 9, 2023, 7:00 PM), https://apnews.com/article/
trump-rape-carroll-trial-fe68259a4b98bb3947d42af9ec83d7db [https://perma.cc/7XF6-YMEG].
27. Corinne Ramey & James Fanelli, Jury Orders Trump to Pay E. Jean Carroll $83 Million
for Defamation, Wall St. J. (Jan. 26, 2024, 6:56 PM), https://www.wsj.com/us-news/law/
jury-set-to-decide-whether-trump-must-pay-e-jean-carroll-again-for-defamation-07785bd5.
28. Aysha Bagchi, Donald Trump Appeals E. Jean Carroll’s $83.3 Million Defamation Trial Win,
USAToday (Mar. 8, 2024, 1:40 PM), https://www.usatoday.com/story/news/politics/2024/03/08/
trump-appeals-carroll-83-million-defamation-win/72896961007/ [https://perma.cc/M9XH-REEK].
29. The most extensive discussion of the facts in this case can be found in U.S. Dominion, Inc.
v. Fox News Network, LLC, No. N21C-03-257 EMD, 2021 WL 5984265, at *1–17 (Del. Super. Ct.
Dec. 16, 2021).
30. Many of the cases relating to the 2020 election still are pending. See discussion infra Part I.C.
Those election cases also may demonstrate the continuing viability and application of the actual
malice standard. See Freeman v. Giuliani, No. 21-3354 (BAH), 2023 WL 5600316, at *1–2 (D.D.C.
Aug. 30, 2023), ECF No. 94 (memorandum opinion imposing default judgment against Giuliani).
See also, Jan Wolfe, Rudy Giuliani Is Found Liable for Defaming Georgia Poll Workers, Wall
St. J. (Aug. 30, 2023, 2:02 PM), https://www.wsj.com/us-news/law/rudy-giuliani-is-found-liable-for-
defaming-georgia-poll-workers-d0786323?mod=us-news_feat2_law_pos1.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1001
challenge the actual malice standard. During the discovery process,
however, Dominion uncovered a large number of emails and text mes-
sages showing that Fox News commentators and ofcials knew their
statements about Dominion’s conduct in counting the votes were false.
On the day the case was scheduled to begin, the parties settled, and Fox
News agreed to pay Dominion $787.5 million in damages.
31
After examining the three high-prole defamation cases and the
role of the actual malice standard in each of them, this Article then will
focus on political, legislative, judicial, and scholarly views that the First
Amendment does not give the media any special protection in defama-
tion cases. Finally, although those arguments are unlikely to result in the
Supreme Court making any changes in the Sullivan decision, at least in
the near future, this Article will conclude by examining what improve-
ments can be made in defamation law without abolishing the actual
malice standard.
I. The Actual Malice Standard: The Intersection of Law,
Politics, and the Media
Despite the protection given to public ofcials and public gures by
the actual malice standard in New York Times v. Sullivan, defamation
cases have increased in recent years.
32
In keeping with an argument made
by many critics of Sullivan that the decision gives an unfair advantage to
the media and enables it to get away with “sloppy” reporting,
33
a few of
the plaintiffs in these cases have challenged the constitutionality of the
actual malice standard. This Part analyzes three recent high-prole defa-
mation cases, all involving public gures as plaintiffs. In two of the cases,
31. See Erin Mulvaney, Joe Flint & Isabella Simonetti, Fox to Pay $787.5 Million to Settle Domin-
ion’s Defamation Lawsuit, Wall St. J. (Apr. 19, 2023, 8:54 AM), https://www.wsj.com/articles/fox-
news-dominion-defamation-trial-set-to-begin-d5c7293a; The Fox-Dominion Settlement, Wall St. J.
(Apr. 19, 2023, 2:17 PM), https://www.wsj.com/articles/dominion-voting-fox-news-settlement-def-
amation-case-rupert-murdoch-john-poulos-bf605b16 (“One journalistic lesson of the Dominion
case is not to indulge crank claims because your audience wants to hear them.... Journalism is an
imperfect craft, and mistakes are inevitable. That’s why the bar for proving libel should be high.”)
(the Wall Street Journal shares common ownership with Fox); Jim Rutenberg, Michael S. Schmidt
& Jeremy W. Peters, Missteps and Miscalculations: Inside Fox’s Legal and Business Debacle, N.Y.
Times (May 27, 2023), https://www.nytimes.com/2023/05/27/business/media/fox-news-dominion-
voting.html (“The case resulted in one of the biggest legal and business debacles in the history of
Rupert Murdoch’s media empire; an avalanche of embarrassing disclosures from internal messages
released in court lings; the largest known settlement in a defamation suit, $787.5 million; two
shareholder lawsuits; and the benching of Fox’s top prime-time star, Tucker Carlson.”).
32. See Mark Curriden, The Defame Game: Libel Cases Are on the Rise and Increasingly Politi-
cized, 109 A.B.A. J., Oct.–Nov. 2023, at 35, 35–36.
33. Lili Levi & Sam Terilli, A Closer Look at New York Times v. Sullivan, News@TheU
(Feb. 22, 2019), https://news.miami.edu/stories/2019/02/a-closer-look-at-new-york-times-v-sulli-
van.html [https://perma.cc/8TE8-6CEF].
1002 DEPAUL LAW REVIEW [Vol. 73:995
the defendants were media organizations. Although, in only one of the
cases, which still is on appeal, did the plaintiff challenge the constitution-
ality of the actual malice standard. In the other two cases, the plaintiffs
were able to marshal sufcient evidence to establish actual malice and,
in one case, settle with the media for a record amount of damages.
A. Sarah Palin v. New York Times
In June of 2017, former Alaska Governor and 2008 Republican vice
presidential candidate, Sarah Palin,
34
led suit against the Times for def-
amation.
35
Later, in a 2019 Amended Complaint, she added the Times’s
former opinion section editor, James Bennet, as an additional defen-
dant.
36
The basis of Palin’s defamation claim was that an editorial in the
Times’s June 14, 2017 edition improperly tied her political statements
to a 2011 shooting in Tucson, Arizona, that resulted in the deaths of six
people and the wounding of thirteen others, including Democratic Rep-
resentative Gabrielle Giffords.
37
1. The Case Background
On January 8, 2011, Jared Lee Loughner red on a political rally
for Democratic Congresswoman Giffords causing a number of deaths
34. Palin was Governor of Alaska from December 4, 2006, until July 26, 2009. After John
McCain lost the 2008 Presidential election, Palin retained a following in the Republican Party
and wrote a memoir, Going Rogue: An American Life (2009), which received mixed reviews.
“Going Rogue” referred to a term used by a John McCain aide to describe Palin’s failure to fol-
low the message during the presidential campaign. See Michiko Kakutani, Memoir Is Palin’s
Payback to McCain Campaign, N.Y. Times (Nov. 14, 2009), https://www.nytimes.com/2009/11/15/
books/15book.html. Ultimately, Palin lost ground and, despite inspiring a new political culture,
was overshadowed by later Republican candidates. See Jeremy W. Peters, Sarah Palin Loses as
the Party She Helped Transform Moves Past Her, N.Y. Times (Nov. 23, 2022), https://www.nytimes.
com/2022/11/23/us/politics/sarah-palin-alaska-house-race.html. For another assessment of Palin,
see T.A. Frank, Sarah Palin Has Long Been Ridiculed. I Want To Tell A Different Story, Wash.
Post Mag. (July 12, 2022, 10:00 AM), https://www.washingtonpost.com/magazine/2022/07/12/
sarah-palin-reconsidered/ [https://perma.cc/Q5TE-JJTW] (“The news media cannot be blamed
for having probed Palin’s understanding of national and international affairs and revealing it to be
dangerously inadequate, or be faulted for reports on Palin’s ethics controversies and other baggage
back in Alaska—this, after all, is the job of journalists. Nor can it be denied that Palin sometimes
used the media to her advantage and played up a sense of injury whenever it seemed to work in
her favor. What’s not clear, however, is why, if the truth was so damning, reporters needed to write
so many falsehoods.”).
35. Sydney Ember, Sarah Palin Sues New York Times, Claiming Editorial Defamed Her, N.Y.
Times (June 17, 2017), https://www.nytimes.com/2017/06/27/business/sarah-palin-sues-new-york-
times.html.
36. Palin v. New York Times Co., 482 F. Supp. 3d 208, 210 (S.D.N.Y. 2020).
37. Id. at 211–12 n.3. For a copy of the editorial, see America’s Lethal Politics, N.Y. Times
(June 14, 2017), https://www.nytimes.com/2017/06/14/opinion/steve-scalise-congress-shot-alexan-
dria-virginia.html.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1003
(including the Chief Judge for the U.S. District Court for Arizona, John
Roll), and severely injuring the Congresswoman. Just before the shoot-
ings, Sarah Palin’s political action committee (SarahPAC) published a
graphic advertisement consisting of a map with crosshairs positioned
over certain Democratic congressional districts that SarahPAC had
identied for replacing incumbent Democrats with Republicans in the
2010 midterm elections. Giffords’s district was one of the twenty pic-
tured on the map. Six years later, on June 14, 2017, James Hodgkinson
opened re during a practice for a congressional baseball game for char-
ity in Alexandria, Virginia. The shooting injured four people, including
Republican Congressman Steve Scalise.
38
On the evening of June 14, 2017, the Times published an editorial
entitled “America’s Lethal Politics.”
39
The editorial asserted that the
two shootings illustrated the “vicious” side of American politics. Pre-
mised upon the Loughner shooting and the SarahPAC map, the edito-
rial asserted that the “link to political incitement was clear ....”
40
In so
doing, the editorial pointed out that Palin’s political action committee
“circulated a map of targeted electoral districts that put Ms. Giffords
and 19 other Democrats under stylized cross hairs,” promoting the idea
that congressmembers were actually pictured on the map.
41
Instead, the
crosshairs were put on a map over the congressional districts and the
name of the Congress members were listed at the bottom of the pages.
The editorial also mentioned the Hodgkinson shooting that took place
that day, declaring: “Though there’s no sign of incitement as direct as
in the Giffords attack, liberals should of course hold themselves to the
same standard of decency that they ask of the right.”
42
The editorial caused immediate pushback. Before its publication,
James Bennet, the top editor of the editorial page, had added language
contending that there was a “clear” and “direct” link between the 2011
attack and the “political incitement” created by the crosshair’s graphic.
43
The Times revised the editorial and made a correction within a day. It
removed the language suggesting a connection between Palin and the
Loughner shooting stating: “An earlier version of this editorial incor-
rectly stated that a link existed between political incitement and the
2011 shooting of Representative Gabby Giffords ... In fact, no such
38. The facts in the two shootings are taken from Palin, 482 F.Supp. 3d at 211–12 and Palin v.
New York Times, 940 F.3d 804, 808 (2d Cir. 2019). The Times initially covered the Loughner shoot-
ing on January 8, 2011. See Marc Lacey & David M. Herszenhorn, In Attack’s Wake, Political Reper-
cussions, N.Y. Times (Jan. 8, 2011), https://www.nytimes.com/2011/01/09/us/politics/09giffords.html.
39. America’s Lethal Politics, supra note 37.
40. Palin, 940 F.3d at 808.
41. Id.
42. Id.
43. Palin v. New York Times Co., 482 F. Supp. 3d 208, 211–13 (S.D.N.Y. 2020).
1004 DEPAUL LAW REVIEW [Vol. 73:995
link was established.”
44
“The Times [further] claried that the SarahPAC
map had [placed] crosshairs on Democratic congressional districts, not
the representatives themelves.”
45
On June 16, 2017, the Times published
a print edition of its “Corrections.”
46
However, within twelve days of the
editorial’s publication, Palin led suit against the Times for defamation
and the paper responded with a motion to dismiss the complaint for
failure to state a claim.
47
2. The Times’s Motion To Dismiss
The District Judge Jed S. Rakoff took the unusual step of holding
an evidentiary hearing on the motion to dismiss. On August 29, 2017,
Judge Rakoff granted the Times’s motion to dismiss with prejudice.
48
Palin then sought reconsideration of the dismissal with a proposed
amended complaint. When the motion for reconsideration and leave
to rele were denied, Palin appealed to the U.S. Court of Appeals for
the Second Circuit, which, on October 15, 2019, vacated the judgment
of the district court, nding that Palin’s Proposed Amended Complaint
“plausibly states a claim for defamation and may proceed to full
discovery.”
49
The related amended opinion acknowledged that: “First
Amendment protections are essential to provide ‘breathing space’ for
freedom of expression. But, at this stage, our concern is how district
courts evaluate pleadings.... At the pleading stage ... Palin’s only
obstacle is the plausibility standard ... She has cleared that hurdle.”
50
On June 12, 2020, the parties led cross-motions for summary judg-
ment which the court denied on August 28, 2020 and set the case for
trial.
51
Defendants later led a motion for reconsideration premised
44. Oliver Darcy, ‘We’re Sorry’: New York Times Issues Correction to Editorial After Contro-
versy, CNN (June 15, 2017, 5:07 PM), https://money.cnn.com/2017/06/15/media/new-york-times-
editorial-palin-giffords-correction/index.html [https://perma.cc/UGA9-ZHXA].
45. Palin, 940 F.3d 804, 808–09.
46. Corrections: June 16, 2017, N.Y. Times (June 15, 2017), https://www.nytimes.com/2017/06/15/
pageoneplus/corrections-june-16-2017.html.
47. Palin, 940 F.3d at 809.
48. Id.
49. Id. at 808–09. The Amended Complaint was led on December 30th, 2019. Palin v. New York
Times Co., 482 F. Supp. 3d 208, 210, 213 (S.D.N.Y. 2020).
50. Palin, 940 F.3d at 816–17.
51. Judge Rakoff’s August 28th, 2020 Opinion and Order addressed issues at the core of Palin’s
case. It stated:
Perhaps recognizing that this Court is not free to disregard controlling precedent even
if it were so inclined ... plaintiff offers what she calls an alternative argument: that
“the actual malice rule arose from distinguishable facts and should not be applied” here.
More precisely, plaintiff’s argument is that the actual malice rule, which was rst ar-
ticulated more than half a century ago in the days before the Internet and social me-
dia, has run its course and should no longer govern our contemporary media landscape.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1005
on New York State’s November 10, 2020 amendment of its libel law
to require a public gure like Palin to prove actual malice by clear
and convincing evidence.
52
The court granted the motion for reconsid-
eration on December 29, 2020 and held the New York “Anti-SLAPP
Statute” (Strategic Lawsuits Against Public Participation) applied to
the case.
53
3. The Trial
After a delay due to COVID-19, the trial began on February 3, 2022,
and concluded on February 10.
54
At the close of evidence, defendants
sought judgment as a matter of law pursuant to Federal Rule of Civil
Procedure 50(a).
55
The court reserved judgment on the motion and on
the evening of February 11, 2022, the jury began deliberations. Then
on Monday, February 14, Judge Rakoff found “that no reasonable
jury could nd that Palin had carried her burden to prove by clear
and convincing evidence that [editor] Bennet had known or recklessly
Binding precedent does not, however, come with an expiration date. To the extent plain-
tiff believes the actual malice requirement ought to be abolished, she could make that
argument to the appropriate court—the Supreme Court. Until then, public gures, like
plaintiff, must establish actual malice before collecting damages for defamation. Plain-
tiff’s motion for partial summary is therefore denied.
Palin, 482 F. Supp. 3d at 215 (citations omitted).
52. Defendants’ Memorandum of Law in Support of Motion for Reconsideration at 5, Palin v.
New York Times Co., 482 F. Supp. 3d 208 (No. 17-cv-4853 (JSR)).
53. Palin v. New York Times Co., 510 F. Supp. 3d 21, 29 (S.D.N.Y. 2020).
54. The Times covered the trial from preparations until the denial of Palin’s motion for a new
trial. See Jeremy W. Peters, Sarah Palin’s Libel Trial Against The New York Times Begins Again, N.Y.
Times (Feb. 3, 2022), https://www.nytimes.com/2022/02/03/business/sarah-palin-new-york-times.
html (“[L]egal experts have said the case is a legal test for those who argue that First Amend-
ment protections for the press are too broad and media outlets should pay a steeper price when
they get something wrong.”); Jeremy W. Peters, Testifying in Palin Libel Trial, Former Times Edito-
rial Page Editor Takes Responsibility for Errors, N.Y. Times (Feb. 8, 2022), https://www.nytimes.
com/2022/02/08/business/media/sarah-palin-new-york-times.html; Jeremy W. Peters, Sarah Palin
Says Her Suit Against The Times Made Her a ‘David’ vs. a ‘Goliath’, N.Y. Times (Feb. 10, 2022),
https://www.nytimes.com/2022/02/10/business/media/sarah-palin-nyt-libel-case.html; Jeremy W.
Peters, Palin Libel Suit Against Times Is Sent to Jury, N.Y. Times, Feb. 12, 2022, at B3; Jeremy W.
Peters, Judge Will Toss Palin Libel Suit Against Times, N.Y. Times, Feb. 15, 2022, at A1; Peters, Sarah
Palin’s Libel Claim Rejected by a Jury, supra note 23; Jeremy W. Peters, Effort to Weaken Press
Protections isn’t Likely to End With Palin Case, N.Y. Times (Feb. 16, 2022), https://www.nytimes.
com/2022/02/16/business/sarah-palin-sullivan-libel-law.html (“[Palin’s] case still may have achieved
another aim that she and her lawyers said they had all along: to shine an unattering light on the
process of producing daily journalism, and to nudge the courts to reconsider why the law sets an
extremely high bar to prove defamation cases against media outlets.”); Jeremy W. Peters, Sarah
Palin Will Seek a New Trial After Her Unsuccessful Suit Against The Times, N.Y. Times (Feb. 23,
2022), https://www.nytimes.com/2022/02/23/business/media/sarah-palin-lawyers-new-york-times.
html.
55. Palin v. New York Times Co., 588 F. Supp. 3d 375, 381 (S.D.N.Y. 2022).
1006 DEPAUL LAW REVIEW [Vol. 73:995
disregarded the Challenged Statements’ falsity prior to publication.”
56
He also permitted the jury to continue deliberations and the Rule 50
judgment would only be entered after a verdict was returned.
57
On
the afternoon of February 15, 2022, the jury delivered a verdict for the
defendants.
58
The court then told the jurors of its ruling on the Rule
50 motion.
59
The district court’s March 1, 2022 sixty-eight-page opinion
concluded: “Palin adduced no afrmative evidence that Bennet knew
that the Challenged Statements were false or recklessly disregarded
their probable falsity. The Court is therefore bound to conclude that
no reasonable jury could nd that Bennet, and therefore the New York
Times Co., published ‘America’s Lethal Politics’ with actual malice.”
60
Interestingly, the opinion added “the Court’s decision to enter judgment
as a matter of law also reected its duty to ensure that public gure libel
actions with constitutionally inadequate evidence does not erroneously
result in the imposition of liability that might chill protected speech.”
61
Sarah Palin led post-trial motions and on March 17, 2022 led a notice
of appeal with the court.
62
56. Id. at 397. See Jeremy W. Peters, Judge Says Sarah Palin ‘Failed to Prove Her Case’ Against
The Times, N.Y. Times (Mar. 1, 2022), https://www.nytimes.com/2022/03/01/business/media/sarah-
palin-new-york-times-trial.html. Palin specically alleged she was defamed by two paragraphs:
In 2011, when Jared Lee Loughner opened re in a supermarket parking lot, grievously
wounding Representative Gabby Giffords and killing six people, including a 9-year-old
girl, the link to political incitement was clear. Before the shooting, 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.
Conservatives and right-wing media were quick on Wednesday to demand forceful
condemnation of hate speech and crimes by anti-Trump liberals. They’re right. Though
there’s no sign of incitement as direct as in the Giffords attack, liberals should of course
hold themselves to the same standard of decency that they ask for the right.
Palin, 588 F. Supp. 3d at 384 (citation omitted). The cited paragraphs were the fth and sixth para-
graphs of the twelve-paragraph editorial. Id.
57. Id.
58. Peters, Sarah Palin’s Libel Claim Rejected by a Jury, supra note 23.
59. Some have reported that the jurors knew of the upcoming dismissal. See Katie Robertson,
Jurors in the Sarah Palin Trial Said They Knew of the Judge’s Decision to Dismiss Before their Ver-
dict, N.Y. Times (Feb. 16, 2022), https://www.nytimes.com/2022/02/16/business/media/sarah-palin-
libel-new-york-times.html. The Brief of Appellant stated: “The Rule 50 decision was the subject
of immediate news coverage and ‘push notications’ while the jury was still deliberating, many
of which revealed the District Judge’s decision to dismiss the case in their headlines.” Brief of
Appellant at 19 [29], Palin v. New York Times Co., No. 22-558 (2d Cir. Sept. 19, 2022), ECF No. 47
(citations omitted). Note that the numbers in brackets are the court ling page numbers found at
the top of each page.
60. Palin, 588 F. Supp. 3d at 410.
61. Id. at 411.
62. Notice of Appeal, Palin v. New York Times Co., 588 F. Supp. 3d 375 (S.D.N.Y. 2022) (No. 1:17-
cv-4853 (JSR)), ECF No. 197.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1007
4. Ruling on Sarah Palin’s Post-Trial Motion
Palin’s post-trial motions rst sought the court’s retroactive disquali-
cation or alternatively sought either a new trial or reconsideration of
the court’s prior ruling in favor of defendants Times and James Bennet
based on their Rule 50 motion for judgment as a matter of law.
63
On
May 31, 2022, Judge Rakoff ruled on Palin’s motion and denied it in its
entirety.
The meritless accusations of impropriety in Palin’s motion cannot sub-
stitute for what her trial presentation lacked: proof of actual malice.
This requires, under both Supreme Court precedent and New York
State statutory law, clear and convincing evidence that Bennet and
the Times published “America’s Lethal Politics” knowing that it was
false or in reckless disregard of its falsity. And, as the Supreme Court
has likewise held, this high standard cannot be satised simply by a
negative inference drawn from discrediting Bennet’s denials. Here,
Palin still cannot identify any afrmative evidence to support the es-
sential element of actual malice. This absence is not a consequence of
trial procedures, judicial bias, or adverse evidentiary rulings. It is, in
the Court’s view, a reection of the facts of the case. To be sure, as the
Court itself recognized even it is [sic] initial statement of its Rule 50
decision, the evidence showed that Bennet and the Times’s Editorial
Board made mistakes as they rushed to meet a print deadline, and
that their editorial processes failed to catch those mistakes before
publication. But in a defamation case brought by a public gure like
Sarah Palin, a mistake is not enough to win if it was not motivated
by actual malice. And the striking thing about the trial here was that
Palin, for all her earlier assertions, could not in the end introduce
even a speck of such evidence.
64
Before and during the trial, some commentators speculated that the
Palin case could be a catalyst to unravel the New York Times v. Sullivan
actual malice standard.
65
However, the course of the case and Palin’s
background have not stimulated any major changes in the law thus far.
66
63. Palin v. New York Times Co., 604 F. Supp. 3d 208, 211 (S.D.N.Y. 2022).
64. Id. at 224 (emphasis added) (citations omitted).
65. Jeremy W. Peters, Sarah Palin v. New York Times Spotlights Push to Loosen Libel Law, N.Y.
Times (Jan. 23, 2022), https://www.nytimes.com/2022/01/23/business/media/sarah-palin-libel-suit-
nyt.html. Jeremy W. Peters, Efforts to Weaken Press Protections Isn’t Likely to End with Palin Case,
N.Y. Times (Feb. 16, 2022, 10:57 PM), https://www.nytimes.com/2022/02/16/business/sarah-palin-
sullivan-libel-law.html. Lydia Wheeler, Palin’s New York Times Spat Tees Up Wider Press Freedom
Face-Off, Bloomberg L. (Feb. 14, 2022, 5:00 AM), https://newsbloomberglaw.com/us-law-week/
palins-new-york-times-spat-tees-up-wider-press-freedom-face-off.
66. The views of the verdict differ markedly. See Lesson of the Palin Verdict, Wall St. J. (Feb. 15,
2022, 6:43 PM), https://www.wsj.com/articles/lesson-of-the-sarah-palin-verdict-new-york-times-
libel-suit-11644967427, which declared:
The New York Times won a legal victory Tuesday against Sarah Palin’s libel suit, but the
cost has been steep. Ms. Palin couldn’t get over the high legal bar of proving “actual mal-
ice” to a jury, but the case exposed slipshod editing and how a left-wing narrative skewed
1008 DEPAUL LAW REVIEW [Vol. 73:995
As previously noted, Judge Rakoff held that New York’s newly amended
anti-SLAPP law applied retroactively to the case.
67
The revised statute
requires that a plaintiff like Palin must prove actual malice under state
law to prevail. Unless overruled on appeal, the ruling means that the
case cannot be a basis for changing the actual malice rule.
5. Appeal to the U.S. Court of Appeals for the Second Circuit
The Second Circuit appeal was led by Palin on March 17, 2022,
68
and
the Appellant’s Brief on September 19, 2022.
69
The rst and foremost
issue raised was “[w]hether the District Court erred by requiring Appel-
lant to prove actual malice as to falsity and defamatory meaning based
on the First Amendment and under N.Y. Civil Rights Law § 76-a(2).”
70
The Appellant’s Brief took the position that “the actual malice rule
was judicially created in response to government ofcials using defa-
mation lawsuits against members of the press to try to stie the voices
of Civil Rights leaders.”
71
But, “[t]he rule, even if it has a valid tex-
tual basis in the First Amendment, is obsolete in the modern speech
landscape.”
72
The brief argued that actual malice rule should not have
been applied by the district court “in substantially dissimilar circum-
stances to those present in New York Times v. Sullivan ....”
73
More
pointedly, the brief asserted: “Continuing to apply the rule not only
subverts fundamental constitutional rights and human dignity without
justication, but also harms free expression, chills speech, and prolifer-
ated false information.”
74
the publication’s commentary against an easy political target. In that sense the former
Alaska Governor won even in defeat.
See also Seth Stevenson, Sarah Palin Wasn’t The Point, Slate (Feb. 15, 2022, 5:25 PM), https://slate.
com/news-and-politics/2022/02/sarah-palin-loses-new-york-times-lawsuit-verdict.html (“[I]t’s
important to acknowledge, that no one deserves to be falsely accused of inciting murder. Even
if the mistake is an honest one, and even if it was rapidly corrected, it was still a supremely awful
error.... The real question is: Where does this leave us? Where do we go from here?”).
67. See N.Y. Civ. Rights Law § 76-a(2) (McKinney 2023) (amended Nov. 10, 2020); Palin v. New
York Times Co., 510 F. Supp. 3d 21, 26–29 (S.D.N.Y. 2020). See also, Matthew D. Bunker & Emily
Erickson, The Jurisprudence of Public Concern in Anti-SLAPP Law: Shifting Boundaries in State
Statutory Protection of Free Expression, 44 Hastings Commc’ns. & Ent. L.J. 133, 156–61 (2022)
(discussing anti-SLAPP motions led in Palin and four other cases). Anti-SLAPP statutes prevent
misuse of defamation law by providing additional protection for those sued for exercising their
First Amendment rights. Anti-SLAPP statutes are discussed in greater detail in Section III.
68. Brief of Appellant, Palin v. New York Times Co., No. 22-558 (2d Cir. Mar. 17, 2022).
69. Brief of Appellant, supra note 59, at 1.
70. Id. at 59.
71. Id. at 32.
72. Id. at 33.
73. Id.
74. Id. at 34.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1009
The brief also sought to distinguish the original foundation of the
rule—the impact of free and open debate. “We are worlds away from
the days when a public gure was capable of meaningfully defending
herself against defamation by using a press release or holding a press
conference.”
75
Many of these arguments have been made by lower court
judges and in Supreme Court Justice’s dissents or concurring opinions.
76
But, whether Palin’s argument will gain traction in the Second Circuit
remains to be seen.
The application of the New York amended anti-SLAPP statute also
could impact the attack on the actual malice standard. For that rea-
son, the Appellant’s Brief argued: “The actual malice rule should not
have been applied under the First Amendment nor N.Y. Civil Rights
L. § 76-a(2). The District Judge’s December 29, 2020 [] decision to
require Appellant to also prove actual malice based on the retroactive
application of New York’s amended Anti-SLAPP statute was clearly
erroneous.”
77
The brief argued the amendments were not remedial but
instead “impact ‘substantive burdens and rights’” and are a “change
in substantive law.”
78
Consequently, the New York legislature “did not
include an unequivocal text expression that the statute was intended to
apply to past conduct ....”
79
The Brief of Appellees New York Times and its former opinion section
editor Bennet addressed the application of the actual malice standard
to Palin. First, appellees maintained that Palin waived any arguments
that the requirements of actual malice were inapplicable. During the lit-
igation from July 2017 until December 2019, “Palin failed to even argue
that the actual malice standard of fault did not govern her claim.”
80
What Palin had asserted was that the Times standard was dated and
“should not be applied in circumstances ‘substantially dissimilar’ from
75. Brief of Appellant, supra note 59, at 35.
76. See McKee v. Cosby, 139 S. Ct. 675, 676 (2019) (Thomas, J., concurring). In his concurring
opinion, Justice Thomas declared:
Like Justice White, I assume that New York Times and our other constitutional deci-
sions displacing state defamation law have been popular in some circles, “but this is not
the road to salvation for a court of law.” We did not begin meddling in this area until
1964, nearly 175 years after the First Amendment was ratied. The States are perfectly
capable of striking an acceptable balance between encouraging robust public discourse
and providing a meaningful remedy for reputational harm. We should reconsider our
jurisprudence in this area.
Id. at 682 (citation omitted). For a response, see Matthew L. Schafer, A Response to Judge Thomas,
in New York Times v. Sullivan: The Case for Preserving an Essential Precedent 9–78 (2022).
77. Brief of Appellant, supra note 59, at 35.
78. Id.
79. Id. at 36.
80. Brief of Defendants-Appellees at 19, Palin v. New York Times Co., No. 22-558 (2d Cir.
Dec. 8, 2022).
1010 DEPAUL LAW REVIEW [Vol. 73:995
those that existed at the time Sullivan was decided.”
81
It seemed that
the Palin brief was attempting to take advantage of the views of some
Supreme Court Justices that the courts should rethink Sullivan because
the news environment has changed markedly since it was decided in
1964.
82
Second, the appellees noted that Palin did not contest that she is
a public gure and the facts of the case did not warrant a “different fault
standard.”
83
Any societal changes had no relevance to her. The brief col-
orfully noted that: “As a former governor, candidate for vice president,
and potential candidate for president who regularly seeks to inuence
politics and matters of public concern, Palin is the paradigmatic public
gure to whom the holdings in Sullivan and its progeny apply.”
84
The appellees also argued in their brief that New York law requires
application of the actual malice standard. According to their brief, Palin
“objects only to the retroactive application of the statue to this action”
led before the amendment to the statute was effective.
85
However,
“the overwhelming majority of courts to consider this question agreed
with the district court’s reasoning in this case and ruled that the 2020
amendments apply retroactively to pending actions.”
86
Palin’s reply brief again challenged the application of the actual mal-
ice rule to her case, even though there was no doubt that she was a
“public gure.” It declared:
The actual malice rule should never have been imposed on Palin. This
judicially created, policy-driven obstacle to vindicating reputational
harm is a “substantial abridgment” of the fundamental constitu-
tional right to protect one’s reputation. Although the Supreme Court
counseled against the “blind application” of the rule, and its justica-
tions indisputably have ceased to exist, its unreasoning application
persists while undermining human dignity, harming free expression,
encouraging the proliferation of false information, and shielding the
enormously powerful fourth estate from legal responsibility for its
actions.
87
6. Palin’s Background as a Public Figure
In its August 6, 2019 opinion, the U.S. Court of Appeals for the Second
Circuit acknowledged that a plaintiff who is a “public gure” must prove
81. Id. at 20 (citing Palin’s brief at 33).
82. Id.
83. Id. at 19–20.
84. Id. at 21 (emphasis in original) (citing Palin v. New York Times Co., 940 F. 3d 804, 809–10 (2d
Cir. 2019)).
85. Id. at 21.
86. Brief of Defendants-Appellees, supra note 80, at 22–23.
87. Reply Brief of Plaintff-Appellant at 3, Palin v. New York Times Co., No. 22-558 (2d Cir. Jan.
17, 2023) (citations omitted).
2024] NEW YORK TIMES v. SULLIVAN AT 60 1011
that an allegedly defamatory statement was made with actual malice—
knowledge that it was false or reckless disregard of whether it was true
or false.
88
Further, the Court declared: “[i]t is undisputed that Palin, a
former governor of Alaska and Republican candidate for Vice Presi-
dent in 2008, is a public gure.”
89
As Appellees’s Brief asserted, this is
an understatement.
90
Palin was the youngest governor ever elected in Alaska and the rst
woman to serve in that position. She then was chosen by John McCain
to serve as his presidential running mate in 2008. While losing to
Barack Obama and Joseph Biden, Palin became a well-known gure
in national Republican politics. After resigning her position as Alaska
governor in 2009, Palin became a commentator on Fox News and gave
paid speeches from 2009 through 2019. She also gained prominence
as an unofcial leader of the Tea Party movement and was a keynote
speaker at the rst National Tea Party Convention in Nashville, Tennes-
see, in 2010. Palin became a staunch supporter of Donald Trump who
was successful in his 2016 presidential campaign.
91
While engaging in diverse political activities, Palin appeared in several
reality television series
92
and wrote a number of books, including Going
Rogue: An American Life (2009) (which commented on the McCain
presidential campaign); America By Heart: Reections on Family, Faith
and Flag (2010); Good Tiding and Great Joy: Protecting the Heart of
Christmas (2013); and Sweet Freedom: A Devotional (2015).
93
Finally,
Palin was involved in SarahPAC, a political action committee created
after she ran for vice president, as a “forum to have [her] voice heard,”
“to help candidates, to help issues.”
94
It was run by a professional staff
and involved in fundraising activities.
95
88. Palin v. New York Times Co., 940 F.3d 804, 809 (2d Cir. 2019) (citing New York Times Co. v.
Sullivan, 376 U.S. 254, 280 (1964)).
89. Id. at 809–10. See David Mack, The Deeper Questions Underlying The Sarah Palin Defa-
mation Trial, BuzzFeed News (Feb. 19, 2022, 8:01 AM), https://www.buzzfeednews.com/article/
davidmack/sarah-palin-nyt-defamation-lawsuit-politics [https://perma.cc/33JH-KWRA].
90. Brief of Defendants-Appellees, supra note 80, at 21.
91. Excerpts of Trial Transcript at SApp-261, 262, 327–28, Palin v. New York Times, No. 22-558
(S.D.N.Y. 2022), ECF No. 92 (these citations are to Palin’s testimony during her trial on Decem-
ber 9th and 10th of 2022). See also Kate Zernike, Palin Assails Obama at Tea Party Meeting, N.Y.
Times (Feb. 6, 2010), http://www.nytimes.com/2010/02/07/us/politics/08palin.html [https://archive.
ph/ZvCgO].
92. Sarah Palin’s Alaska (TLC television broadcast Nov. 14, 2010–Jan. 9, 2011); Bristol Palin:
Life’s a Tripp (Lifetime television broadcast June 19, 2012–July 31, 2012); Amazing America with
Sarah Palin (Sportsman Channel television broadcast Apr. 4, 2014– Feb. 12, 2015). See Excerpts of
Trial Transcript, supra note 91, at SApp-332-33.
93. See Excerpts of Trial Transcript, supra note 91, at SApp-328–29.
94. See id. at Sapp-291, 337–38 (examination and cross examination of Sarah Palin December
9th and 10th of 2022).
95. Id. at SApp-337.
1012 DEPAUL LAW REVIEW [Vol. 73:995
Clearly, Palin has long been at the intersection of politics and the
media. Now, law has been added to the mix by the defamation action.
She has been aggressive in her statements and apparently unconcerned
with potential political or legal fallout. For example, she accused Presi-
dent Barack Obama of “palling around with terrorists.”
96
She was also
notorious for stating in 2009 that Obamacare would lead to “death
panels.”
97
All these facts support the expectation that Palin has multiple plat-
forms to challenge any improper statements made by the news media.
The Brief of Amici Curiae Reporters Committee for Freedom of the
Press and 52 Media Organizations disputed Palin’s contention that def-
amation law needs revision.
98
The amici brief declared:
Appellant emphasizes in her brief that this case was “high-prole.”
But the legal questions her appeal raises could not be more ordinary.
The First Amendment’s protections apply equally no matter the level
of media attention or what “polarizing” issues a case may involve.
Journalists and news media organizations depend on those protec-
tions to do their work of delivering important information to the
American people so they can make the decisions necessary to govern
themselves. Appellant articulates no reason why those protections
should be different here, where Appellant is a high-prole public g-
ure with a national platform to deliver her own messages and infor-
mation to the public—because there is none.
99
On Monday, November 6, 2023, Palin’s twice dismissed action was
nally argued before the Second Circuit. While Palin’s counsel led with
an assault on the actual malice standard, the three-judge panel, made
up of Circuit Judges John M. Walker, Jr., Reena Raggi, and Richard
J. Sullivan, exhibited little appetite for the challenge.
100
Comments
96. David Smith, ‘She Paved the Way for Trump’: Will Sarah Palin Stay in the Republican Spot-
light?, Guardian (Feb. 13, 2022), https://www.theguardian.com/us-news/2022/feb/13/sarah-palin-
republican-party-trump-defamation-trial [https://perma.cc/X3WS-WDRY]. Jeremy W. Peters,
Insurgency: How Republicans Lost Their Party and Got Everything They Ever Wanted 27
(2022) (Palin stated at a fundraiser: “Our opponent, [Barack Obama], is someone who sees Amer-
ica, it seems, as being so imperfect that he’s palling around with terrorists who would target their
own country.”).
97. See Frank, supra note 34. For further coverage of the “death panels” statement, see Cass
R. Sunstein, Liars: Falsehoods and Free Speech in an Age of Deception 79 (2021) [hereinafter
Sunstein, Liars: Falsehoods and Free Speech in an Age of Deception].
98. Brief of Amici Curiae the Reporters Committee for Freedom of the Press and 52 Media
Organizations in Support of Appellees Seeking Afrmance at 5–6, Palin v. New York Times Co.,
No. 22-558 (2d Cir. Dec. 15, 2022).
99. Id.
100. Josh Gerstein, Appeals Court Mulls Reviving Sarah Palin’s Suit Against New York Times—
Again, Politico (Nov. 6, 2023, 3:25 PM), https://www.politico.com/news/2023/11/06/sarah-palin-
libel-lawsuit-appeal-00125595. A recording of the oral argument is available at the Second Circuit.
See Oral Argument Records, U.S. Ct. of Appeals for the Second Cir., https://ww3.ca2.uscourts.
gov/oral_arguments.html [https://perma.cc/Y5E6-KZG2] (case No. 22-558, Nov. 6, 2023).
2024] NEW YORK TIMES v. SULLIVAN AT 60 1013
during oral argument are not denitive evidence of the judges’ views,
but they do reect some areas of concern. Judge Walker told counsel
for Palin, Shane Vogt, “I think you’re wasting time for oral argument
by spending a lot of time on this question ....”
101
But Palin’s coun-
sel’s other arguments seemed to gain more traction—did Judge Rakoff
ignore probative evidence or provide improper responses to jurors?
102
Judge Raggi was concerned with the legal impact of editor Bennet’s
statement that he believed he read the Times’s editorials that stated
no connection had been established between the 2011 shooting and
a map of Palin’s political action committee distributed with crosshairs
over Giffords’s district. Only time will tell where the panel ultimately
comes down on the issues.
B. The Two E. Jean Carroll v. Donald J. Trump Lawsuits
A second example of the application of the actual malice standard in
defamation cases are the two lawsuits led by E. Jean Carroll, a “jour-
nalist, author, former writer for Saturday Night Live, and advice colum-
nist for Elle magazine,” against Donald J. Trump.
103
Unlike Sarah Palin,
Jean Carroll did not challenge the constitutionality of the Sullivan deci-
sion. Instead, she presented evidence that resulted in the jury nding
that Trump made his statements with actual malice and awarded her
$2.98 million in damages for defamation.
Carroll’s rst suit against Trump (Carroll I) arose from statements
then-President Trump made in June 2019 in response to an article pub-
lished on June 21, 2019 in New York Magazine on the internet, which
contained an excerpt from Carroll’s soon to be released book detailing
Trump’s alleged sexual assault of her in late 1995 or early 1996 in the
Bergdorf Goodman department store in New York City.
104
101. Gerstein, supra note 100. See Russell, supra note 24.
102. Russell, supra note 24.
103. Complaint and Jury Demand at ¶ 17, Carroll v. Donald J. Trump, No. 1:20-cv-07311 (LAK)
(S.D.N.Y. Sept. 8, 2020). E. Jean Carroll’s advice column was published in Elle Magazine from 1993
until 2020, where she was known for her aggressive but humorous writing style. From 1994 to 1996,
she was the host and producer of the Ask E. Jean television series that was featured on NBC’s Amer-
ica’s Talking. In the mid-1980’s she wrote for Saturday Night Live. She also wrote for magazines
including The Atlantic and Vanity Fair and was a contributing editor for Outside, Esquire, and New
York magazines. See Charisse Jones, Beauty Queen, Journalist, Pioneer. The Many Faces of Trump
Accuser E. Jean Carroll, USA Today (July 3, 2019, 8:30 AM), https://www.usatoday.com/story/
money/2019/07/03/e-jean-carroll-new-york-circuit-donald-trump-assault-accusation/1584135001.
104. Memorandum Opinion Denying Defendant’s Motion for Summary Judgment at 2–3,
Carroll v. Donald J. Trump, No. 1:20-cv-07311 (LAK) (S.D.N.Y. June 29, 2023), ECF No. 172.
1014 DEPAUL LAW REVIEW [Vol. 73:995
1. Trump’s Responses to the June 2019 Statements by Carroll
Trump made three 2019 statements in response to Carroll’s account,
which she alleged to be defamatory. One statement was made by Trump
soon after Carroll’s excerpt was released.
105
He declared:
Regarding the ‘story’ by E. Jean Carroll, claiming she once encoun-
tered me at Bergdorf Goodman 23 years ago. I’ve never met this per-
son in my life. She is trying to sell a new book. That should indicate
her motivation. It should be sold in the ction section.... False accu-
sations diminish the severity of real assault. All should condemn false
accusations and any actual assault in the strongest possible terms.
106
The second statement by Trump was reported in the media and pub-
lished in a White House press release entitled, “Remarks by President
Tr um p B ef ore M ar in e O ne D ep ar tu re” o n Ju ne 2 2, 2 0 19 . It stated, in
part: “It’s a false accusation and it’s a disgrace that a magazine like
New York—which is one of the reasons it’s failing. People don’t read it
anymore, so they’re trying to get readership by using me. It’s not good.”
107
Then, on June 24, 2019, Trump said in an interview with The Hill newspa-
per, “Number one, she’s not my type. Number two, it never happened.”
108
Carroll brought her rst case against Trump in November 2019
(Carroll I) for defaming her in the above statements. Her defamation
claim was premised on the fact that Trump accused her “of fabricating
her [sexual assault] allegations [against him] to increase book sales”
and for other improper purposes thereby causing her professional and
reputational harm” and causing her “emotional pain and suffering.”
109
In response to Trump’s motion for summary judgment led on June
29, 2023, District Court Judge Lewis A. Kaplan
110
denied the motion
105. Deposition of Donald J. Trump at 58–59, Carroll v. Donald J. Trump, No. 1:20-cv-07311
(LAK) (S.D.N.Y. Feb. 16, 2023), ECF No. 135-3.
106. Id.; see E. Jean Carroll, Hideous Men: Donald Trump Assaulted Me in a Bergdorf Good-
man Dressing Room 23 Years Ago. But He’s Not Alone on the List of Awful Men in My Life, The
Cut (June 21, 2019), https://www.thecut.com/article/donald-trump-assault-e-jean-carroll-other-
hideous-men.html; Megan Garber, You Should Really Read E. Jean Carroll’s Memoir, Atlantic
(July 3, 2019), https://www.theatlantic.com/entertainment/archive/2019/07/e-jean-carroll-what-do-
we-need-men-for-memoir-review93245/. See also First Amended Complaint and Demand for Jury
Trial at 15–16, ¶ 83, Carroll v. Donald J. Trump, No. 1:20-cv-07311 (LAK) (S.D.N.Y. May 22, 2023),
ECF No. 157-1.
107. First Amended Complaint and Demand for Jury Trial, supra note 106, at 18, ¶ 92.
108. Id. at 20, ¶ 98.
109. Id. at 3–4, ¶ 11, 15.
110. District Judge Kaplan is a senior United States District Judge on the United States District
Court for the Southern District of New York. He was appointed by President Bill Clinton and has
been on the bench since February 1, 2011. See Kaplan, Lewis A., Fed. Jud. Ctr., https://www.fjc.gov/
history/judges/kaplan-lewis [https://perma.cc/4DD8-BDNU].
2024] NEW YORK TIMES v. SULLIVAN AT 60 1015
and the alternative request for leave to raise an absolute presidential
immunity defense.
111
2. The Second Carroll Action
In her “second case”
112
(Carroll II), Carroll sued Trump for alleged
sexual assault and defamation based on a statement he posted on his
social media account in October 2022 “that was substantially similar”
to his statements of June 2019.
113
The second case was tried before a
jury in April and May 2023 and also presided over by Judge Kaplan.
114
On May 9, 2023, the jury found that Trump’s statement was defamatory,
that Carroll proved, “by clear convincing evidence that Mr. Trump’s
statement was false,” that “Mr. Trump made the statement with actual
malice,” and that Carroll provided by a “preponderance of the evi-
dence” that she was “injured as a result of Mr. Trump’s publication of
the October 12, 2022 statement.”
115
The jury awarded Carroll $5 million
in damages against Trump, including $2.02 million for sexual assault and
$2.98 million for defamation.
116
Trump’s negative statements about Carroll did not end with the jury’s
verdict. During a CNN appearance the next day on May 10, 2023, Trump
declared that Carroll was a “wack job,” that the trial was “rigged,”
111. Memorandum Opinion Denying Defendant’s Motion for Summary Judgment, supra note
104, at 46. On July 11, 2023 the U.S. Department of Justice issued a letter stating:
After balancing and weighing the evidence... from Mr. Trump’s deposition, the jury
verdict in Carroll II, and the new allegations in the Amended Complaint, the Depart-
ment has determined that there is no longer a sufcient basis to conclude that the for-
mer President was motivated by “more than an insignicant” desire to serve the United
States Government.
Letter from Brian M. Boynton, Principal Deputy Assistant Attorney General, to Alina Habba,
Michael T. Madio & Roberta Kaplan (July 11, 2023); Carroll v. Donald J. Trump, No. 1:20-cv-07311
(LAK) (S.D.N.Y. July 11, 2023), ECF No. 177-1, at 5–6.
112. Memorandum Opinion Denying Defendant’s Motion for Summary Judgment, supra note
104, at 2. When Ms. Carroll led her 2019 action, she was prevented from suing for sexual battery
by the New York statute of limitations. The Adult Survivor Act of 2022 renewed her ability to bring
assault claims, leading to those claims in the second action. Id. at 3 n.3.
113. Id. at 2.
114. Verdict Form at 1–4, Carroll v. Donald J. Trump, No. 1:22-cv-10016-LAK (S.D.N.Y. May 9,
2023), ECF No. 174.
115. Verdict Form, supra note 114, at 2–3; Carroll v. Trump, No. 22-cv-10016 (LAK), 2023 WL
4612082, at *16 (S.D.N.Y. July 19, 2023) (emphasis added).
116. Verdict Form, supra note 114, at 1–3. See Benjamin Weiser, Lola Fadulu & Kate Christo-
bek, Donald Trump Sexually Abused and Defamed E. Jean Carroll, Jury Finds, N.Y. Times (May 9,
2023), https://www.nytimes.com/live/2023/05/09/nyregion/trump-carroll-rape-trial-verdict. See also
Carroll v. Trump, No. 20-cv-7311, 2023 WL 4393067, at *1 (S.D.N.Y. July 5, 2023) (regarding results
of trial in Carroll II).
1016 DEPAUL LAW REVIEW [Vol. 73:995
denied raping her, and declared, “I don’t know who the hell she is.”
117
Trump appealed the Carroll II jury verdict on May 11, 2023. However,
the next day, his attorneys proffered $5.55 million to the district court
in the event the appeal failed.
118
Carroll then sought leave to amend
her original defamation action (Carroll I) to include the new remarks
Trump had made after the verdict on the CNN town hall broadcast and
Truth Social.
119
Judge Kaplan granted the motion on June 13, 2023.
120
3. The Motions in the Carroll Litigation Continue
After the Carroll II unanimous jury verdict in Carroll’s favor, Trump
led a Rule 59 motion challenging the jury verdict as “a miscarriage of
justice” and sought a new trial on damages or remittitur.
121
Following a
detailed fty-nine page opinion, Judge Kaplan denied the motion on July
19, 2023.
122
A s p a r t o f t h e J u ly 1 9 t h op i n i o n , Jud ge K a p l a n c a re f u l l y p r o b ed
the defamation claim premised on Trump’s 2022 statement. According
to Judge Kaplan, the “crux” of that statement was “that Ms. Carroll lied
about his sexually assaulting her and that her entire accusation was a
‘[h]oax’ concocted to increase sales of her then-forthcoming book.”
123
To
establish that Trump defamed her, Judge Kaplan stated that Carroll had
to prove Trump’s statement “was false (i.e., not substantially true),” that
he knew the statement was false or acted recklessly of whether it was
true or false and that the statement disparaged Carroll in her profession
or exposed her to hate or contempt in the community.
124
117. See Benjamin Weiser, Judge to Allow Trump’s New Comments in Carroll Defamation Suit,
N.Y. Times (June 13, 2023), https://www.nytimes.com/2023/06/13/us/politics/e-jean-carroll-trump-
defamation-lawsuit.html; Benjamin Weiser, Is There a Price That Keeps Trump Quiet? E. Jean
Carroll May Find Out, N.Y. Times (June 23, 2023), https://www.nytimes.com/2023/06/23/nyregion/
trump-e-jean-carroll-lawsuit-money.html [hereinafter Weiser, Is There a Price?].
118. Stipulation and Proposed Order Regarding the Use of a Cash Deposit in Court as Security
in Lieu of a Supersedeas Bond at 2, Carroll v. Trump, No. 22-cv-10016 (LAK) (S.D.N.Y. June 23,
2023), ECF No. 209-1.
119. Notice of Plaintiff E. Jean Carroll’s Motion to Amend at 1, Carroll v. Trump, No. 20-cv-7311
(LAK) (S.D.N.Y. May 22, 2023), ECF No. 155. See Benjamin Weiser, E. Jean Carroll Seeks New
Damages from Trump for Comments on CNN, N.Y. Times (May 22, 2023), https://www.nytimes.
com/2023/05/22/nyregion/carroll-trump-cnn-defamation.html; Weiser, Is There a Price?, supra note
117.
120. Granting Plaintiff’s Motion to Amend at 1, Carroll v. Trump, No. 20-cv-7311 (LAK)
(S.D.N.Y. June 13, 2023), ECF No. 169.
121. Motion for New Trial at 1, Carroll v. Trump, No. 22-cv-10016 (LAK) (S.D.N.Y. June 21,
2023), ECF No. 204.
122. See Carroll v. Trump, No. 22-cv-10016 (LAK), 2023 WL 4612082, at *26 (S.D.N.Y. July 19,
2023).
123. Id. at *10.
124. Id. The jury had found that Mr. Trump made the statement “with actual malice.” Transcript
of Trial Proceedings at 1432, Carroll v. Trump, No. 22-cv-10016 (LAK) (S.D.N.Y. June 15, 2023),
ECF No. 201.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1017
In evaluating the defamation claim and the impact of an alleged
“rape” claim, Judge Kaplan found that the claim was never based on the
specic New York Penal Law denition of “rape” but was based on Car-
roll’s alleged fabrication of the incident. Indeed, the opinion reasoned
that Trump never specically denied “raping” Ms. Carroll but “instead
accused her of lying about the incident as a whole, of ‘completely
ma[king] up a story’ that was a ‘Hoax and a lie.’ There is thus no factual
or legal support for Mr. Trump’s made-up version of Ms. Carroll’s defa-
mation claim.”
125
Judge Kaplan also found that the damages awarded
by the jury did not deviate signicantly from awards in other New York
defamation awards. Citing Plaintiff’s Opposition Memorandum, the
Court distinguished other New York awards:
The cases Mr. Tr um p ci te s “ do n ot c om pa re i n t he s li ght es t t o b ei ng d e -
famed by one of the loudest voices in the world, in a statement read by
millions and millions of people, which described you as a liar, labeled
your account of a forcible sexual assault a ‘hoax,’ and accused you of
making up a horric accusation to sell a ‘really crummy book.’”
126
Thus, Judge Kaplan found that Trump failed to establish a new trial
or remittitur was warranted, relating to the defamation claim.
127
Finally,
he held that the jury’s punitive damage award of $280,000 was neither
excessive nor violative of due process.
128
Thus, Judge Kaplan concluded
that the jury neither reached “a seriously erroneous result” nor ren-
dered a verdict that was “a miscarriage of justice”.
129
On August 7, 2023, the district court granted Carroll’s motion to dis-
miss Trump’s counterclaim and to strike certain purported afrmative
defenses in Carroll I.
130
Trump alleged in his counterclaim that Carroll’s
statements during the CNN May 10, 2023 interview “repeated false-
hoods and defamatory statements” that resulted in damage to Trump’s
reputation.
131
The only support for Trump’s claim of falsity was the fact
that the jury in Carroll II did not nd he “penetrated her vagina with his
125. See Carroll, 2023 WL 4612082, at *25; Complaint and Demand for a Jury Trial at 18, ¶ 92,
Carroll v. Trump, No. 22-cv-10016 (S.D.N.Y. Nov. 11, 2022), ECF No. 1.
126. Carroll, 2023 WL 4612082, at *25 (citing Plaintiff’s Opposition Memorandum at 24, Carroll
v. Trump, No. 22-cv-10016 (S.D.N.Y.), ECF No. at 24).
127. Carroll, 2023 WL 4612082, at *26.
128. Id.
129. Id.
130. Carroll v. Trump, No. 20-cv-7311, 2023 WL 5017230, at *10 (S.D.N.Y. Aug. 7, 2023). See com-
mentary on the Opinion by Karen Zraick, Judge Throws Out Trump’s Countersuit Against E. Jean
Carroll, N.Y. Times (Aug. 7, 2023), https://www.nytimes.com/2023/08/07/nyregion/trump-carroll-
defamation-suit-dismissed.html. The relevant Motion to Dismiss (Doc. 174) was led on July 11,
2023.
131. Defendant’s Answer to Plaintiff’s Amended Complaint at 26, ¶12, No. 20-cv-7311 (LAK-
JLC) (S.D.N.Y. June 27, 2023), ECF No. 171.
1018 DEPAUL LAW REVIEW [Vol. 73:995
penis.”
132
However, the court concluded that “Mr. Trump has not plausi-
bly alleged that Ms. Carroll’s statements during the CNN interview was
not at least substantially true.”
133
The court then identied an even more consequential nding—on
the sexual abuse question—that the jury’s “implicit determination that
Trump digitally raped her—is conclusive with respect to this case.”
134
Thus, Carroll’s statements were “substantially true.”
135
Consequently,
the court found that Trump failed to state a defamation claim “because
(1) he fails to plausibly allege that Ms. Carroll’s statements were not
true, and (2) in the alternative, Ms. Carroll’s allegedly defamatory state-
ments were substantially true as a matter of law.”
136
As a result, the jury
verdict in Carroll II stands, at least for now, and the claims in Carroll I
can move forward.
4. Motions Regarding the Preclusive Effect of Carroll II Verdict On
2019 Statements
In a well-publicized September 6, 2023 opinion, the district court
ruled on the parties’ “competing motions” regarding the collateral
estoppel impact of the jury verdict in Carroll II on the defamation
claims asserted in Carroll I.
137
The court’s detailed memorandum opin-
ion again illustrated the proper application of the actual malice stan-
dard and whether the trial in Carroll I should address only damages
issues or as Trump contended, that there was no preclusive effect on
liability and any damages in Carroll I were limited by the damages the
jury awarded in Carroll II.
138
The district court analyzed in detail three statements made by
Trump about Carroll in 2019. The court ultimately found “the verdict
132. See Defendant’s Memorandum of Law in Opposition to Plaintiff’s Motion to Dismiss and
Motion to Strike at 5–6, Carroll v. Trump, No. 20-cv-7311 (LAK-JLC) (S.D.N.Y. July 25, 2023), ECF
No. 181; see Carroll, 2023 WL 4612082, at *13.
133. Carroll, 2023 WL 5017230, at *5.
134. Id. at *7.
135. Id.
136. Id. at *8. On August 18, 2023, the court denied Donald Trump’s motion to stay the Carroll I
case, originally led in November 2019—which had been delayed for years. See Motion to Stay
Pending Appeal, Carroll v. Trump, No. 20-cv-7311 (S.D.N.Y. July 27, 2023), ECF No. 185; Carroll v.
Trump, No. 20-cv-7311 (LAK-JLC), 2023 WL 5312894, at *8 (S.D.N.Y. Aug. 18, 2023).
137. Carroll v. Trump, No. 20-cv-7311 (LAK), 2023 WL 5731152, at *2 (S.D.N.Y. Sept. 6, 2023).
See Debra Cassens Weiss, Collateral Estoppel Allows Jurors to Skip Liability Issue in Second Trump
Defamation Trial, A.B.A. J. (Sept. 7, 2023, 8:59 AM), https://www.abajournal.com/web/article/col-
lateral-estoppel-allows-jurors-to-skip-liability-issue-in-second-trump-defamation-trial; Benjamin
Weiser, Trump’s Next Defamation Trial Will Skip to What Damages He Should Pay, N.Y. Times
(Sept. 6, 2023), https://www.nytimes.com/2023/09/06/nyregion/trump-e-jean-carroll-defamation-
trial-january.html.
138. Carroll, 2023 WL 5731152, at *8–9.
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in Carroll II established ... that Mr. Trump’s statements were made
with actual malice.”
139
In support, Judge Kaplan concluded that the jury
in Carroll II “found by clear and convincing evidence that Mr. Trump
made the 2022 statement with actual malice.”
140
That is, that Trump
“knew that it was false, had serious doubts as to its truth, or had a high
degree of awareness that the statement probably was false.”
141
The jury
concluded that Mr. Trump knew his statement that Ms. Carroll made
untrue allegations about being sexually assaulted for her own personal
gain were false or that he acted with reckless disregard of their falsity.
Trump’s 2019 statements raised the identical issue.
142
The Judge agreed
with Ms. Carroll’s argument that “[n]o reasonable person could believe
that [Mr.] Trump acted with actual malice in October 2022, but lacked
it in June 2019.”
143
In addition, even if the jury verdict in Carroll II that
Trump’s 2022 statement was made with actual malice did not result in
issue preclusion, it was still sufcient for summary judgment purpos-
es.
144
Thus, the jury’s determination that Trump’s 2022 statement was
false “is controlling in [the 2019] case.”
145
While the jury in Carroll II was told not to consider Mr. Trump’s 2019
statements, that did not impact the fact “that the jury considered and
decided issues common to both cases ....”
146
Thus, the Judge reached the
ultimate conclusion as to the defamation claim that “[t]he jury’s verdict in
Carroll II, as well as (and alternatively) the undisputed facts, established
that Mr. Trump’s 2019 statements were made with actual malice.”
147
The
judge granted Carroll’s motion for partial summary judgment based on
Trump’s June 24, 2019 statement but denied Trump’s motion to restrict
Carroll’s damages based upon the impact of the Carroll II verdict in the
Carroll I case.
148
Judge Kaplan’s detailed analysis applied the existing
Sullivan requirements and there seem few grounds for a challenge to
that standard at the appellate or Supreme Court levels.
After a long pause relating to appellate proceedings involving the
Westfall Act immunity,
149
the Carroll I case has now moved forward.
139. Id. at *8.
140. Id.
141. Id. (citing Transcript of Trial Proceedings at 1431–32, No.22-cv-10016 (S.D.N.Y. June 15,
2023), ECF No. 201).
142. Id.
143. Id. (emphasis added).
144. Carroll, 2023 WL 5731152, at *9.
145. Id.
146. Id.
147. Id.
148. Id. at *11.
149. See 28 U.S.C. §2679 (b)(1) (referenced to in the Memorandum and Order on Plaintiff’s
In Limine Motion at 2, Carroll v. Trump, No. 20-cv-7311 (LAK) (S.D.N.Y. Jan. 9, 2024), ECF,
No. 252).
1020 DEPAUL LAW REVIEW [Vol. 73:995
Judge Kaplan’s January 9th, 2024 Memorandum and Order on Plaintiff’s
Motion in Limine resolved a number of key issues before the jury trial
on damages. For example, it prevented Trump and his attorneys from
offering any evidence, argument, or comments [before the jury] ... [s]
uggesting or implying that ... Trump did not sexually abuse Carroll;
that he did not make his June 21 and 22, 2019 statements concerning
... Carroll with actual malice in the constitutional sense of that term;
that ... Carroll fabricated her account ... or offering testimony or
advancing any argument inconsistent with the Court’s collateral es-
toppel decision determining that ... Trump, with actual malice, lied
about sexually assaulting ... Carroll ....
150
The second trial, dealing with Carroll’s damages, began January 16th,
2024. As Judge Kaplan’s January 9th Memorandum and Order stated:
“The only issue at trial will be Ms. Carroll’s damages from Mr. Trump’s
defamatory statements.”
151
Carroll testied that Trump “shattered my
reputation” and that a course of online threats resulted.
152
Trump testied for approximately three minutes on January 25th. He
stated that he had not encouraged anyone to harm Carroll. Trump’s
attorneys had argued that Carroll was not actually defamed by Trump’s
many statements, but she actually secured social status and benecial
reputation from them.
153
On January 26th, 2024, a jury of seven men and two women rendered
a very sizeable verdict against Trump after no more than three hours of
deliberation. The unanimous verdict was for $83.3 million in damages,
made up of $11 million in compensatory damages for reputation repair,
150. Memorandum and Order on Plaintiff’s In Limine Motion at 26–27, Carroll v. Trump, No.
20-cv-7311 (LAK) (S.D.N.Y. Jan. 9, 2024), ECF, No. 252 (emphasis added). The Memorandum and
Order reasoned:
The Court, however, already has granted partial summary judgment to Ms. Carroll on the
issue of constitutional actual malice, meaning that Mr. Trump is precluded from arguing
he believed his statements to have been true when uttered... Indeed, the jury in Car-
roll II already found that Mr. Trump knew of the falsity of his statements (accusing Ms.
Carroll of lying), or at least that he made them with reckless disregard for their truth or
falsity or that he in fact entertained serious doubt as to the truth of his own statements.
Id. at 17 (citing Verdict Form at 2, Carroll v. Donald J. Trump, No. 1:22-cv-10016-LAK (S.D.N.Y.
May 9, 2023), ECF No. 174).
151. Id. at 9.
152. See Alison Durkee, E. Jean Carroll Testies Trump ‘Shattered My Reputation’ At Defa-
mation Trial—As Ex-President Watches in Court, Forbes (Jan. 17, 2024), https://www.forbes.com/
sites/alisondurkee/2024/01/17/e-jean-carroll-testies-trump-shattered-my-reputation-at-defama-
tion-trial-as-ex-president-watches-in-court/?sh=93b2d45419c3; Corinne Ramey & James Fanelli,
E. Jean Carroll’s Second Defamation Trial Could Hit Donald Trump’s Wallet Again, Wall St. J.
(Jan. 16, 2024), https://www.wsj.com/us-news/law/e-jean-carrolls-second-defamation-trial-could-
hit-trumps-wallet-again-609607a2.
153. Corinne Ramey & James Fanelli, Trump Makes Quick Witness Appearance in E. Jean Car-
roll Defamation Case, Wall St. J. (Jan. 25, 2024, 3:49 PM), https://www.wsj.com/politics/policy/
trump-makes-quick-witness-appearance-ine-jean-carroll-defamation-case-f4163685.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1021
$7.3 million in compensatory damages outside of reputation repair and
$65 million in punitive damages.
154
Carroll’s attorney, Roberta Kaplan, maintained in her closing argu-
ment that the only thing that would stop Trump’s attacks on Carroll
would be to make it too costly for him to carry on. After the verdict,
Ms. Kaplan said the verdict illustrates that “the law applies to everyone
in our country, even the rich, even the former presidents.”
155
Trump’s
attorney, Alina Habba, indicated that the verdict would be appealed.
Trump signaled a similar intent, declaring that the result was “abso-
lutely ridiculous!”
156
154. Corinne Ramey & James Fanelli, Jury Orders Trump to Pay E. Jean Carroll $83 Million
for Defamation, Wall St. J. (Jan. 26, 2024, 6:56 PM), https://www.wsj.com/us-news/law/jury-set-to-
decide-whether-trump-must-pay-e-jean-carroll-again-for-defamation-07785bd5. See also Verdict
Form at 1–2, No. 1:20-cv-07311-LAK (S.D.N.Y. Jan. 26, 2024), ECF No. 280. At the conclusion of
the second jury trial, Judge Lewis Kaplan cautioned the jurors “[m]y advice to you is that you
never disclose that you were on this jury.” Brent B. Grifths & Laura Italiano, Judge in Trump
Defamation Trial Advises Jurors to ‘Never Disclose That You Were on This Jury’, Bus. Insider (Jan.
26, 2024, 4:36 PM), https://www.businessinsider.com/judge-lewis-kaplan-trump-defamation-trial-
jury-advice-2024-1. This was not the rst time the court addressed the issue. See Maria Cramer
& Benjamin Weiser, In Trump’s Defamation Trial, The Nine Most Important People Are Enigmas,
N.Y. Times (Jan. 25, 2024), https://www.nytimes.com/2024/01/25/nyregion/trumps-defamation-
trial-carroll-jury.html. Indeed, Judge Kaplan’s prior Memorandum Opinion Re Anonymous Jury,
Carroll v. Trump, Case No. 1:22-cv-10016-LAK, 2023 WL 2612260, at *5 (S.D.N.Y. Mar. 23, 2023),
declared, in part,
[o]n the basis of the unprecedented circumstances in which this trial will take place, in-
cluding the extensive pretrial publicity and a very strong risk that jurors will fear harass-
ment, unwanted invasions of their privacy, and retaliation... the court nds that there is
strong reason to believe the jury needs the protection... below.
And, in a closely related case, Judge Kaplan issued another Order providing for the use of an
“anonymous jury.” See Carroll v. Trump, No. 1:20-cv-07311-LAK, Doc. 222 (S.D.N.Y. Nov. 3, 2023).
On March 9, 2024, Trump posted a $91.6 million bond (110% of the judgment), provided by an
insurance company, which will prevent Carroll from collecting the judgments while Trump appeals.
See Benjamin Weiser & Ben Protess, Trump Posts $91.6 Million Bond for Defamation Judgment
in Carroll Case, N.Y. Times (Mar. 8, 2024), https://www.nytimes.com/2024/03/08/nyregion/trump-
carroll-bond-defamation.html.
155. Erica Orden, Trump Ordered to Pay $83.3M for Defaming E. Jean Carroll, Politico (Jan.
26, 2024, 4:45 PM), https://www.politico.com/news/2024/01/26/trump-trial-jean-carroll-defama-
tion-verdict-00138171; Benjamin Weiser, Jonah E. Bromwich, Maria Cramer & Kate Christo-
bek, Jury Orders Trump to Pay Carroll $83.3 Million After Years of Insults, N.Y. Times (Jan. 26,
2024), https://www.nytimes.com/2024/01/26/nyregion/trump-defamation-trial-carroll-verdict.
html#:~:text=Trump%20was%20ordered%20by%20a,midst%20of%20the%20trial%20itself.
156. Victoria Bekiempis, Donald Trump Ordered to Pay E. Jean Carroll $83.3 Million in Defama-
tion Trial, Guardian (Jan. 26, 2024, 5:09 PM), https://theguardian.com/us-news/2024/jan/26/e-jean-
carroll-damages-trump-defamation-trial#:~:text=A%20New%20York%20City%20jury,fund%20
a%20reputational%20repair%20campaign. On March 18, 2024 Trump led a new action in the
Southern District of Florida alleging that American Broadcasting Companies, Inc. and George
Stephanopoulos defamed him by stating that Trump “had been found liable by multiple juries
for the rape of Ms. E. Jean Carroll.” The complaint declared that the false statements were made
by Stephanopoulos “with actual malice or with a reckless disregard for the truth.” Trump v. Am.
Broadcasting Cos., Inc., No. 1:24-cv-21050-(CMA) (S.D. Fla. Mar. 18, 2024) Doc. 1. In support,
the complaint alleged that the Carroll II verdict form for battery stated that Trump did not rape
1022 DEPAUL LAW REVIEW [Vol. 73:995
C. Dominion Voting Systems v. Fox News Network
The most numerous and complex of the recent defamation cases
are those arising out of claims of fraud involving the 2020 presiden-
tial election. More than twenty lawsuits have been led by individuals
and corporations against attorneys, media representatives, and corpora-
tions based on their election-related statements. This Section examines
the background to those defamation suits, discusses the various law-
suits that have been led, and then focuses on one of the lawsuits: U.S.
Dominion, Inc. v. Fox News Network.
157
In that case, Dominion alleged
defamation per se based on claims of fraud and conspiracy involving
its voting machines that Fox on-air hosts and their guests made or sup-
ported and sought $1.6 billion in damages.
158
Although Dominion was
a public gure and Fox News was a media corporation, the Sullivan
decision was not an issue in the case. Dominion did not challenge its
need to prove actual malice and, after lengthy discovery, it uncovered
sufcient evidence that Fox News hosts and their guests knew that the
their allegations of voter fraud were false. Dominion settled its claim
against Fox News for $787.5 million in April 2023, on the day the jury
trial was scheduled to begin.
159
1. The Background to the 2020 Election Defamation Cases
Although the lawsuit brought by Dominion was based on defama-
tory comments made on various Fox News programs between Novem-
ber 2020 and late January 2021, the suit had its origins in the months
leading up to the November 2020 election. From the beginning of the
2020 presidential campaign, President Trump repeatedly claimed at ral-
lies, “the only way we’re going to lose this election is if the election
Ms. Carroll and that “[neither] the Carroll I jury, nor the Carroll II jury found [Trump] ‘liable for
rape.’” See id. at 1–2, 4–8. The complaint also noted that the verdicts in Carroll II and Carroll I
were currently on appeal to the United States Court of Appeals for the Second Circuit. Id. at 7–8.
Finally, as noted previously, Judge Kaplan addressed the type of assault Carroll experienced in
Carroll v. Trump, No. 20-cv-7311, 2023 WL 5017230, at *7 (S.D.N.Y. Aug. 7, 2023), nding as to the
sexual abuse question, that the jury’s “implicit determination that Mr. Trump digitally raped her”
was conclusive as to that case. Id. The Carroll related defamation cases now continue at the district
court and before the Second Circuit.
157. U.S. Dominion, Inc. v. Fox News Network, LLC, No. N21C-03-257 EMD, 2021 WL 5984265,
at *1 (Del. Super. Ct. Dec. 16, 2021). See Benjamin Mullin, Voting-Machine Company Dominion
Sues Fox News Over Election Claims, Wall St. J. (Mar. 26, 2021, 1:32 PM), https://www.wsj.com/
articles/voting-machine-company-dominion-sues-fox-news-over-election-claims-11616766678.
158. Mullin, supra note 157.
159. Jeremy W. Peters & Katie Robertson, Fox Will Pay $787.5 Million to Settle Defa-
mation Suit, N.Y. Times (Apr. 18, 2023), https://www.nytimes.com/live/2023/04/18/business/
fox-news-dominion-trial-settlement.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1023
is rigged”
160
and there is “massive fraud.”
161
Trump’s comments were
broadcast on Fox News programs in the months before the election and
become an article of faith among many of his supporters.
The 2020 presidential election itself, held in the middle of the COVID-19
pandemic, was and remains, one of the most controversial in U.S. his-
tory. Because a record number of persons chose to vote by mail,
162
it took
longer than usual to count the ballots in some states. Thus, as election
night November 3, 2020, drew to a close, the major news networks were
unable to call the winner of the presidency because of the large number
of ballots remaining to be counted. However, just before midnight on
election night, Fox News predicted, before any other news organization,
that Biden was the winner in Arizona.
163
That call angered not only Presi-
dent Trump, who declared early the next morning that he had won the
election,
164
but also many Trump supporters and Fox viewers, who began
a “Stop the Steal” campaign that grew in the following months.
165
Anger over the potential outcome of the election built in the days after
November 3rd as the delay in counting the ballots continued, as Presi-
dent Trump’s early lead gradually faded away, and as some states that
he had carried in the 2016 election—Arizona, Georgia, Michigan, Penn-
sylvania, and Wisconsin—switched to Biden.
166
On Saturday, November
7th, the counting of the ballots nally reached the point that the net-
works, including Fox, were condent of the outcome in enough states
to project that Joseph Biden was the winner of the 2020 election.
167
A
160. Morgan Chalfant, Trump:’The Only Way We’re Going to Lose this Election is if
the Election is Rigged, The Hill (Aug. 17, 2020, 7:22 PM), https://thehill.com/homenews/
administration/512424-trump-the-only-way-we-are-going-to-lose-this-election-is-if-the/.
161. NBC News, Trump Holds Campaign Rally in Allentown, Pa., YouTube (Oct. 26, 2020),
https://www.youtube.com/watch?v=KOpWeK-KGSw. See Final Report of the Select Committee
to Investigate the January 6th Attack on the United States Capital, H.R. Rep. No. 117-663, at
201–02 (2022) [hereinafter Final Report to Investigate the Jan. 6th Attack].
162. Less than one-third of the persons who voted in the 2020 presidential election did so
in-person. The rest voted by mail. Christina A. Cassidy, Report Shows Big Spike in Mail Ballots
During 2020 Election, Associated Press (Aug. 16, 2021, 6:21 PM), https://apnews.com/article/
health-elections-coronavirus-pandemic-election-2020-campaign-2016-f6b627a5576014a55a7252e
542e46508.
163. Patrick Strickland, AP, Fox Call Arizona for Biden; Trump Team Insists it’s Still in Play,
Aljazeera (Nov. 5, 2020), https://www.aljazeera.com/news/2020/11/5/arizona-story.
164. Id.
165. Jeff Horwitz, Sam Schechner & Deepa Seetharaman, Facebook Imposes Limits on Election
Content, Bans ‘Stop the Steal’ Group, Wall St. J. (Nov. 5, 2020, 10:26 PM), https://www.wsj.com/
articles/facebook-takes-down-group-organizing-protests-of-vote-counting-11604603908.
166. Elena Mejia & Geoffrey Skelley, How the 2020 Election Changed the Electoral Map,
FiveThirtyEight (Dec. 8, 2020, 6:00 AM), https://projects.vethirtyeight.com/2020-swing-states/.
167. Stephen Collinson & Maeve Reston, Biden Defeats Trump in an Election He Made
About Character of the Nation and the President, CNN (Nov. 7, 2020, at 9:44 PM), https://www.
cnn.com/2020/11/07/politics/joe-biden-wins-us-presidential-election/index.html; Paul Stein-
hauser & Brook Singman, Biden Wins Presidency, Trump Denied a Second Term in White
1024 DEPAUL LAW REVIEW [Vol. 73:995
majority of people in the United States either were excited by, accepted,
or came to accept, Biden’s election. However, the following day, Sidney
Powell, a member of President Trump’s legal team that was focusing on
contesting the election results, was interviewed by Maria Bartiromo on
the Fox News program Sunday Morning Futures and stated that there
was “a massive and coordinated effort to steal this election” and that
“fraud” had occurred in the Dominion software which involved ipping
votes in the computer system or adding votes that did not exist.
168
In the following weeks, President Trump tweeted a series of articles
supporting his claims of voter fraud that were made on Newsmax and
One American News Network (OANN), Fox News’s main competitors.
He encouraged Fox viewers to switch to other networks and attacked
Fox, stating that the network’s “daytime ratings have completely col-
lapsed. Weekend daytime even WORSE” and declared “#foxnews is
dead.”
169
One result of the attacks on Fox was that the value of the com-
pany’s stock dropped by 6% and average viewership dropped approxi-
mately 20% between Election Day 2020 and mid-January 2021.
170
The
fear over the consequences of losing viewers and revenue is reected
in a text that Fox News host Tucker Carlson sent on November 8th:
“With Trump behind it, an alternative like [N]ewsmax could be dev-
astating to us.”
171
In order to regain viewers who supported President
Trump and increase revenue, Fox News turned to Sidney Powell, Rudy
Giuliani, and Mike Lindell, all of whom were supporting Trump’s claims
of election fraud, and made them frequent guests on its programs. With
the assistance of supportive questioning from Fox News hosts, these
guests made a series of claims of fraud against Dominion and Smart-
matic, another voting machine company whose machines also were
House, Fox News Projects, Fox News (Nov. 7, 2020, 12:46 PM), https://www.foxnews.com/politics/
biden-wins-presidency-trump-fox-news-projects.
168. Sunday Morning Futures with Maria Bartiromo, Fox News (Nov. 8, 2020), https://archive.
org/details/FOXNEWSSW_20201108_15000_Sunday_Morning-Futures_With_Maria_Baritromo/
start/2501/end/2561/.
169. Helen Sullivan, Donald Trump Attacks Fox News: ‘They Forgot the Golden Goose,’
Guardian (Nov. 12, 2020, 10:26 PM), https://www.theguardian.com/us-news/2020/nov/13/
donald-trump-attacks-fox-news-they-forgot-the-golden-goose.
170. Jeremy W. Peters, Inside the 3 Months That Could Cost Fox $1.6 Billion, N.Y. Times (Mar. 20,
2023), htps://www.nytimes.com/2023/03/20/technology/fox-news-dominion-texts.html; Matthew
Fox, Fox Corp. Tumbles 6% as Trump Retweets Support for Rival Networks Newsmax and OANN,
Bus. Insider (Nov. 13, 2020, 11:34 AM), https://markets.businessinsider.com/news/stocks/fox-
stock-price-president-trump-retweets-support-for-rival-networks-2020-11-1029798530; Tommy
Beer, Fox News Viewership Plummets: First Time Behind CNN and MSNBC in Two Decades,
Forbes (Jan. 16, 2021, 12:29 PM), https://www.forbes.com/sites/tommybeer/2021/01/16/fox-news-
viewership-plummets-rst-time-behind-cnn-and-msnbc-in-two-decades/?sh=6e2dae325342.
171. Aaron Blake, Fox News-Dominion Lawsuit: A Timeline of Major Revelations,
Wash. Post (Mar. 14, 2023, 3:10 PM), https://www.washingtonpost.com/politics/2023/03/14/
timeline-all-major-events-fox-news-dominion-case/.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1025
used in the election.
172
In December 2020 Smartmatic, another voting
machine company, sent a letter to Fox, Newsmax, and OANN, demand-
ing a retraction of their comments about Dominion and Smartmatic
and threatening legal action.
173
Fox and Newsmax initially broadcast
videos stating that there was no evidence that Dominion or Smartmatic
used software to interfere with the election.
174
However, their attacks on
Dominion and Smartmatic then continued.
175
Notwithstanding the statements from numerous sources that there
been no systematic voter fraud in the 2020 election and that Domin-
ion and Smartmatic voting machines did not ip votes or delete Trump
votes,
176
President Trump, his close advisors, and many of his support-
ers continued to dispute the outcome of the 2020 election and to pro-
mote conspiracy theories.
177
They alleged that, in a number of states,
there had been fraud in counting the ballots and rigged voting machines
that affected the outcome and that Dominion was responsible for it.
178
Although recounts were conducted by hand in some states, including
Arizona and Georgia, they did not change the outcome.
179
Sixty-two law-
suits were also led in various states challenging the election results.
180
However, all but one were unsuccessful and the Supreme Court refused
to hear any of the challenges.
181
As a result, early in the morning of
January 7, 2021, after hours of delay at the Capitol because of riots on
172. For examples of the allegations, see Complaint at 95, ¶ 179, U.S. Dominion, Inc. v. Fox News
Network, LLC, No. N21C-03-257 (EMD) (Del. Super. Ct. Mar. 26, 2021).
173. For a copy of the Legal Notice and Retraction Demand letter from Smartmatic to Fox, see
Letter from J. Erik Connolly, Benesch, to Lily Fu Claffee, General Counsel, Fox News Network,
LLC (Dec. 10, 2020), https://www.documentcloud.org/documents/20423795-legal-notice-and-
retraction-demand-from-smartmatic-usa-corp-to-fox-news. See also Kevin Breuninger, Election
Tech Company Smartmatic Demands Retraction from Fox, Newsmax and OAN Over Conspiracy
Theories, CNBC (Dec. 14, 2020, 1:41 PM), https://www.cnbc.com/2020/12/14/smartmatic-demands-
retractions-from-fox-newsmax-oan.html.
174. Oliver Darcy, After Legal Threat, Fox Airs News Package Debunking Election Fraud Claims
Made by its Own Hosts, CNN (Feb. 4, 2021, 2:27 PM), https://www.cnn.com/2020/12/19/business/
fox-smartmatic-news-package/index.html [https://perma.cc/7C3Q-YTQS].
175. Complaint, supra note 172, at 36–37, ¶ 70.
176. See Jack Nicas, No, Dominion Voting Machines Did Not Delete Trump Votes, N.Y. Times
(Nov. 11, 2020), https://www.nytimes.com/2020/11/11/technology/no-dominion-voting-machines-
did-not-delete-trump-votes.html; see also Gordon Pennycook & David G. Rand, Research Note:
Examining False Beliefs About Voter Fraud in the Wake of the 2020 Presidential Election, 2 Misin-
formation Rev. 1, 3 (2021).
177. Final Report to Investigate the Jan. 6th Attack, supra note 161, at 216–24.
178. Id. at 216.
179. See Haley Schwab et al., Stanford-MIT Healthy Election Project, Vote Recounts
and Election Contests in Battleground States, Final Report (2021).
180. For a discussion of some of those cases, see Final Report to Investigate the Jan. 6th At-
tack, supra note 161, at 210–13.
181. Jessica Gresko, Supreme Court Rejects Trumps Election Challenge Cases, Associated Press
(Feb. 22, 2021, 3:09 PM), https://apnews.com/article/joe-biden-donald-trump-pennsylvania-elec-
tions-us-supreme-court-5cc6aee8c328c7bb1d423244b979bcec. The one case that was successful
1026 DEPAUL LAW REVIEW [Vol. 73:995
January 6th meant to delay or prevent the certication of the electoral
votes,
182
Joseph Biden received 306 votes from the Electoral College to
Donald Trump’s 232 votes.
183
Despite Joseph Biden’s election and inauguration as President of the
United States, allegations of voter fraud continued. In January 2021, a
Google search of the phrase “Dominion voting fraud” produced over
8.4 million results; 1.9 million results for “dominion manipulate vote”;
and over 18.9 million results for “who manufactures dominion voting
machines.”
184
Allegations were made against some individuals who had
counted state ballots and against Dominion, whose machines were used
in approximately twenty-eight states, and Smartmatic, whose machines
were used in Los Angeles County in California. The allegations of fraud
resulted in more than twenty defamation lawsuits:
185
• Eric Coomer v. Donald J. Trump for President, Inc., Sidney
Powell, and Rudolph Giuliani, et al.
186
• Eric Coomer v. Salem Media of Colorado, Inc. and Randy
Corporon
187
• Eric Coomer v. Make Your Life Epic LLC, d/b/a Thrivetime
Show and Clayton Thomas Clark
188
• Eric Coomer v. Michael J. Lindell. Frankspeech LLC, and My
Pillow, Inc.
189
• Eric Coomer v. Patrick Byrne
190
• U.S. Dominion, Inc. v. Sidney Powell
191
affected relatively few votes. See Final Report to Investigate the Jan. 6th Attack, supra note
161, at 210–11.
182. For an account of the January 6th riots, see generally Final Report to Investigate the Jan.
6th Attack, supra note 161.
183. 2020 Electoral College Results, Nat’l Archives, https://www.archives.gov/electoral-col-
lege/2020 [https://perma.cc/B4HX-6PXU].
184. U.S. Dominion, Inc. v. Fox News Network, LLC, No. N21C-03-257 EMD, 2021 WL 5984265,
at *6 (Del. Super. Ct., Dec. 16, 2021).
185. Much of the information about these suits is taken from 16 Defamation Lawsuits Filed by
Voting Machine Manufacturers and a Former Employee (with 4 Counterclaims), A-Mark Found.,
https://the2020election.org/defamation-lawsuits-led-by-voting-machine-manufacturers/ [https://
perma.cc/V9V4-NDY9] [hereinafter 16 Defamation Lawsuits Filed by Voting Machine Mfg.].
186. Complaint at 46–49, Coomer v. Trump, No. 2020-CV-34319 (Dist. Ct. City & Cty. of Denver
Dec. 22, 2020). See 16 Defamation Lawsuits Filed by Voting Machine Mfg., supra note 185.
187. Complaint, Coomer v. Salam Media of Colo., Inc., No. 2021-CV-33632 (Dist. Ct. City & Cty.
of Denver Nov 13, 2021). See 16 Defamation Lawsuits Filed by Voting Machine Mfg., supra note 185.
188. Complaint, Coomer v. Make Your Life Epic LLC, No. 1:21-cv-3440 (D. Colo. Dec. 22, 2021).
See 16 Defamation Lawsuits Filed by Voting Machine Mfg., supra note 185.
189. Complaint, Coomer v. Lindell, No. 2022-CV-30920 (Dist. Ct. City & Cty. of Denver Apr. 4,
2022). See 16 Defamation Lawsuits Filed by Voting Machine Mfg., supra note 185.
190. Complaint, Coomer v. Byrne, No. 1:22-cv-01575 (D. Colo. June 24, 2022).
191. Complaint, U.S. Dominion, Inc. v. Powell, No. 1:21-cv-00040 (D.D.C. Jan. 8, 2021). See Mi-
chael Conklin, Rage Against the Voting Machine: Dominion’s Defamation Lawsuit Against Sidney
Powell, 26 Ill. Bus. L.J. 1, 3 (2021).
2024] NEW YORK TIMES v. SULLIVAN AT 60 1027
• U.S. Dominion Inc. v. Rudolph W. Giuliani
192
• U.S. Dominion, Inc. v. My Pillow, Inc.
193
• U.S. Dominion, Inc. v. Fox News Network LLC
194
• U.S. Dominion, Inc. v. Newsmax Media, Inc.
195
• U.S. Dominion, Inc. v. Herring Networks Inc.
196
• U.S. Dominion, Inc. v. Patrick Byrne
197
• Ruby Freeman and Wandrea Moss v. Rudolph Giuliani
198
• Ruby Freeman and Wandrea Moss v. James Hoft, Joseph Hoft,
and TGP Communication LLC, d/b/a/ The Gateway Pundit
199
• Majed Khalil v. Fox News Corp.
200
• Smartmatic USA Corp. v. Mike Lindell and My Pillow, Inc.
201
• Smartmatic USA Corp. v. Fox News Corporation, Fox News
Network LLC, Lou Dobbs, Maria Bartiromo, Jeanine Pirro,
Rudolph Giuliani, and Sidney Powell
202
• Smartmatic USA Corp. v. Newsmax Media, Inc.
203
• Smartmatic USA Corp. v. Herring Networks, Inc. d/b/a One
America News Network
204
192. Complaint, U.S. Dominion, Inc. v. Giuliani, No. 1:21-cv-00213 (D.D.C. Jan. 25, 2021). See 16
Defamation Lawsuits Filed by Voting Machine Mfg., supra note 185.
193. Complaint, U.S. Dominion, Inc. v. My Pillow, Inc., No. 1:21-cv-00445 (D.D.C. Feb. 22, 2021).
See 16 Defamation Lawsuits Filed by Voting Machine Mfg., supra note 185.
194. Complaint, U.S. Dominion, Inc. v. Fox News Network LLC, No. N12C-03-257 EMD (Del.
Super. Ct. Mar. 26, 2021). See 16 Defamation Lawsuits Filed by Voting Machine Mfg., supra note
185.
195. Complaint, U.S. Dominion, Inc. v. Newsmax Media, Inc., No. N21C-08-063 (Del. Super. Ct.
Aug. 10, 2021). See 16 Defamation Lawsuits Filed by Voting Machine Mfg., supra note 185.
196. Complaint, U.S. Dominion, Inc. v. Herring Networks, Inc., No. 1:21-cv-02130 (D.D.C. Aug.
10, 2021). See 16 Defamation Lawsuits Filed by Voting Machine Mfg., supra note 185.
197. Complaint, U.S. Dominion, Inc. v. Byrne, No. 1:21-cv-02131 (D.D.C. Aug. 10, 2021). See 16
Defamation Lawsuits Filed by Voting Machine Mfg., supra note 185.
198. Freeman v. Giuliani, No. 21-3354 (BAH), 2022 WL 16551323 (D.D.C. Oct. 31, 2022). In Au-
gust 2023, Judge Beryl A. Howell sanctioned Giuliani for failing to comply with discovery requests
and entered default judgement against him in the case. See Freeman v. Giuliani, No. 1:21-cv-03354-
BAH, 2023 WL 5600316, at *26 (D.D.C., Aug. 30, 2023). After a ve-day trial to determine the
amount of damages, a jury awarded Freeman and Moss $148 million in damages on December 15,
2023. Eileen Sullivan, Jury Orders Giuliani to Pay $148 Million to Election Workers He Defamed,
N.Y. Times (Dec. 15, 2023), https://www.nytimes.com/2023/12/15/us/politics/rudy-giuliani-defama-
tion-trial-damages.html#:~:text=A%20jury%20on%20Friday%20ordered,Trump.
199. Complaint, Freeman v. Hoft, No. 21-cv-01424-HEA (Cir. Ct. of St. Louis City Dec. 5, 2021).
200. Khalil v. Fox Corp., No. 21 Civ. 10248 (LLS) (S.D.N.Y. Aug. 16, 2022).
201. Smartmatic USA Corp. v. Lindell, No. 0:22-cv-00098-WMW-JDF (D. Minn. Jan. 18, 2022).
202. Complaint, Smartmatic USA Corp. v. Fox Corp., No. 151136/2021 (N.Y. Sup. Ct. Feb. 4,
2021). See 16 Defamation Lawsuits Filed by Voting Machine Mfg., supra note 185.
203. Complaint, Smartmatic USA Corp. v. Newsmax Media, Inc., No. N21C-11-028 (Del. Super.
Ct., Nov. 3, 2021). See 16 Defamation Lawsuits Filed by Voting Machine Mfg., supra note 185.
204. Complaint, Smartmatic USA Corp. v. Herring Networks, Inc., No. 1:21-cv-02900 (D.D.C.
Nov. 3, 2021). See 16 Defamation Lawsuits Filed by Voting Machine Mfg., supra note 185.
1028 DEPAUL LAW REVIEW [Vol. 73:995
2. U.S. Dominion, Inc. v. Fox News Network, LLC
On March 26, 2021, U.S. Dominion, Inc., the parent company of Domin-
ion Voting Systems, led a 139-page complaint (443 pages with exhibits)
in the Superior Court of Delaware against Fox News Network.
205
In
addition, the complaint named ve Fox News and Fox Business per-
sonalities who hosted programs on Fox and who it said were agents
for Fox as “Relevant Non-Parties”: Maria Bartiromo, Tucker Carlson,
Lou Dobbs, Sean Hannity, and Jeanine Pirro.
206
The lawsuit also named
as defendants three non-Fox employees who appeared frequently as
guests on Fox programs after the 2020 election: Sidney Powell, an attor-
ney and author; Rudolph Giuliani, a former U.S. Attorney, Mayor of
New York City, and an attorney for Donald Trump and the Trump Cam-
paign; and Mike Lindell, the founder and CEO of My Pillow, Inc.
207
a. The Dominion Complaint
Dominion’s complaint alleged that Fox representatives repeatedly
made, or did not challenge guests on its programs, who made false con-
spiracy claims that the company was part of a plot to steal the 2020
election by altering vote counts and manipulating its voting machines
to benet Joseph Biden.
208
Dominion also stated that it suffered “enor-
mous and irreparable economic harm” as a result of the allegations that
included lost prots, which it projected to be not less than $600 million;
lost enterprise value, which it listed as not less than $1 billion; security
expenses of not less than $600,000; and expenses incurred in combat-
ting the disinformation campaign of not less than $700,000. Dominion
also sought punitive damages to be determined at trial, pre- and post-
judgment interest, and all its expenses, including attorneys’ fees.
209
Thirty pages of Dominion’s complaint detailed twenty specic
instances, between November 8, 2020, and January 26, 2021, in which Fox
published false and defamatory per se statements of fact about Domin-
ion, either by its own agents making the statements, or by intentionally
providing a forum for its guests on its programs, knowing they would
make defamatory statements.
210
The complaint also alleged that Fox
205. Complaint, U.S. Dominion, Inc. v. Fox News Network, LLC, No. N12C-03-257 EMD (Del.
Super. Ct., Mar. 26, 2021) [hereinafter Dominion Complaint]. The complaint is available at https://
www.documentcloud.org/documents/20527880-dominion-v-fox-news-complaint. Dominion’s law-
suit against Fox News was the fourth one it led arising from allegedly defamatory statements
made about it after the 2020 election.
206. Id. at 7–12.
207. Id. at 12–13.
208. See id. at 95–125.
209. Id. at 4, 136–37.
210. Id. at 95.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1029
program hosts also afrmed, endorsed, repeated, or agreed with their
guests’ statements, and republished defamatory statements either on the
air, Fox websites, Fox social media accounts, or other Fox digital plat-
forms and subscription services.
211
The subject matter of the allegedly
defamatory statements can be divided in four groups: election fraud;
algorithm ips; Dominion ties with Venezuela; and kickbacks for using
Dominion voting machines. Because the twenty allegedly defamatory
statements set out in the complaint are too lengthy to include in this
Article, the two examples below illustrate the allegations made against
Dominion.
The rst example occurred on the November 13, 2020 live broadcast
of Lou Dobbs Tonight, where the following conversation took place
between Lou Dobbs, the host, and his guest, Sidney Powell:
Sidney Powell: Well, I can hardly wait to put forth all the evidence
we have collected on Dominion, starting with the fact it was created
to produce altered voting results in Venezuela for Hugo Chavez and
then shopped internationally to manipulate votes for purchase in
other countries, including this one. We also need to look at and we’re
beginning to collect evidence on the nancial interests of some of
the governors and Secretaries of State who actually bought into the
Dominion Systems surprisingly enough—Hunter Biden type graft to
line their own pockets by getting a voting machine in that would ei-
ther make sure their election was successful or they got money for
their family from it.
* * *
People need to come forward now and get on the right side of this
issue and report the fraud they know existed in Dominion Voting Sys-
tems, because that’s what it was created to do. It was its sole original
purpose. It has been used all over the world to defy the will of people
who wanted freedom.
Lou Dobbs: Well, good, because this is an extraordinary and such
a dangerous moment in our history. Sidney, we’re glad that you are
on the charge to straighten out all of this. It is a foul mess and it is
far more sinister than any of us could have imagined, even over the
course of the past four years.
212
The second example occurred on the November 15th, 2020 live broad-
cast of Fox and Friends Sunday, where one of the hosts, Maria Barti-
romo, made the following statement:
Maria Bartiromo: [S]o much news on the software that was used on
the voting machines on election night. There is much to understand
about Smartmatic, which owns Dominion Voting Systems. They have
businesses in Venezuela, Caracas. We’re going to talk about it with
211. Dominion Complaint, supra note 205, at 95.
212. Id. at 98–99.
1030 DEPAUL LAW REVIEW [Vol. 73:995
Rudy Giuliani and why he does believe that he will be able to over-
turn this election with evidence. He will join me along with Sidney
Powell to give us an update on their investigation. This is very impor-
tant to understand what is going on with this software. Sidney Powell
is also talking about potential kickbacks that government ofcials
who were asked to use Dominion actually also enjoyed benets to
their families.
213
Dominion’s role in the 2020 presidential election made it a “public
gure,” as were the on-air program hosts at Fox News and the guests
on their programs. Fox News was a media defendant. Thus, Dominion
was required to prove that the allegedly defamatory statements made
against it were made with actual malice as required by the New York
Times v. Sullivan. None of the parties questioned the standard’s appli-
cation to the case. Fox News had no reason to challenge the applica-
tion of Sullivan since, without the requirement of a showing of actual
malice, Dominion would be able to recover simply by showing negli-
gence, a standard that it would have no trouble meeting. Fox also hoped
that Dominion would not be able to meet the stringent requirement
of actual malice. Dominion did not challenge Sullivan and alleged in
its complaint that Fox News personalities “recklessly disregarded the
truth” in making and endorsing statements about Dominion on their
programs.
214
b. Fox News’s Motion to Dismiss
On May 18, 2021, Fox Corporation, the most protable part of the
Fox media empire, led a motion in the Superior Court of Delaware
to dismiss Dominion’s complaint for failure to state a claim.
215
In its
sixty-one page brief, Fox raised three constitutional arguments that
its reporting and commentary were not actionable defamation. First,
Fox contended that truthfully reporting on newsworthy allegations,
such as claims of election fraud made by the President and his legal
team, were matters of public concern and not actionable.
216
Second, Fox
claimed that the media is protected by the “fair reportage” privilege,
which under New York law (the law governing the case), provides that
a civil action cannot be maintained “for the publication of a fair and
true report of any judicial proceeding, legislative proceeding, or other
213. Id. at 103.
214. Id. at 2.
215. Defendant’s Brief in Support of its Rule 12(b)(6) Motion to Dismiss for Failure to State a
Claim, U.S. Dominion, Inc. v. Fox News Network, LLC, No. N21C-03-257 EMD (Del. Super. Ct.,
May 18, 2021) [hereinafter Fox’s Brief in Support of its Motion to Dismiss]. For a copy of Fox’s
Brief in Support of Its Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim, see https://
www.justsecurity.org/wp-content/uploads/2021/06/Fox-Reply-Dominion.pdf.
216. Id. at 15–19.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1031
ofcial proceeding.”
217
Third, Fox asserted that opinion and hyperbolic
rhetoric about newsworthy allegations are constitutionally protected.
218
In addition to its constitutional arguments, Fox claimed that none of
the twenty examples of individual statements in Dominion’s Complaint
were actionable defamation.
219
Dominion argued that no privilege applied to Fox in this case.
220
First,
Dominion noted that New York law does not recognize the “neutral
reportage defense.”
221
Second, Dominion argued that, even if the
“neutral reportage defense” applied, a jury could nd that Fox went
beyond neutral reportage by broadcasting clearly irresponsible sources,
by espousing and concurring with the defamatory statements made
by others, and by communicating defamatory statements in its own
voice.
222
Third, Dominion contended that the “fair report” privilege did
not protect Fox’s defamatory statements because that privilege is lim-
ited to actual, accurate reports about a specic governmental proceed-
ing.
223
Fourth, Dominion stated that the alleged defamatory statements
were actionable statements of mixed opinion or opinion based on false
facts.
224
Finally, Dominion asserted that it had alleged facts from which
the court could infer actual malice.
225
On December 16, 2021, Delaware Superior Court Judge Eric M.
Davis ruled that none of the defenses Fox raised supported dismissal
of Dominion’s Complaint and that it was “reasonably conceivable that
Dominion has a claim for defamation.”
226
According to Judge Davis, the
“neutral reportage privilege” requires a showing of accurate and dispas-
sionate reportage of a newsworthy event.
227
In this case, Judge Davis
pointed to “SETTING THE RECORD STRAIGHT” emails sent by
Dominion to Fox in November 2020.
228
The emails contained analysis
from election experts which tended to disprove the election fraud claim.
However, Fox personnel continued to report claims of Dominion’s con-
nection with election fraud without also reporting Dominion’s emails
217. Id. at 19–20.
218. Id. at 15.
219. Id. at 30–52.
220. U.S. Dominion, Inc. v. Fox News Network, LLC, No. CV N21C-03-257 EMD, 2021 WL
5984265, at *16 (Del. Super. Dec. 16, 2021).
221. U.S. Dominion, Inc., 2021 WL 5984265, at *16.
222. Id.
223. Id.
224. Id.
225. Id.
226. Id. at *28.
227. U.S. Dominion, Inc., 2021 WL 5984265, at *22.
228. Id. at *24.
1032 DEPAUL LAW REVIEW [Vol. 73:995
and expressed their own view that evidence connected Dominion to an
illegal election fraud conspiracy.
229
Judge Davis noted that it was reasonably conceivable that Fox was
not dispassionate: “Given that Fox apparently refused to report con-
trary evidence, including evidence from the Department of Justice,
the Complaint’s allegations support the reasonable inference that Fox
intended to keep Dominion’s side of the story out of the narrative.”
230
Judge Davis also ruled that the “fair report privilege” did not apply to
Fox in this case because its “reporting (i) was not fair or true and (ii) did
not concern an ofcial proceedings.”
231
Finally, Judge Davis held that
the “opinion defense” did not support dismissal of the complaint.
Here, the complaint supports the reasonable inference that Fox was
reporting on a fact, i.e., that Dominion aided or caused election fraud.
Fox’s news personnel repeatedly framed the issue as one of truth-
seeking and purported to ground interview questions in judicial pro-
ceedings and evidence. Reviewing the Complaint, the Court does not
read Fox’s statements as mere statements of opinion.
232
Judge Davis concluded that whether Dominion ultimately would be
able to prove Fox’s actual malice by clear and convincing evidence was
irrelevant to the motion to dismiss. For purposes of Fox’s motion to
dismiss, it was “reasonably conceivable” that Dominion had a claim for
defamation per se and denied the motion.
233
The effect of this was to
allow Dominion’s claim to proceed to discovery where it would attempt
to uncover email and other communications among Fox News execu-
tives and on-line personalities. Finally, Judge Davis identied two issues
that he said needed further brieng: rst, whether New York’s anti-
SLAPP law applied to the case and, second, whether Dominion was a
“public” or “private” gure for purposes of the case.
234
Both Fox News
and Fox Corporation included counterclaims in their motions, alleging
that Dominion violated New York’s anti-SLAPP law because Domin-
ion led its lawsuits without a substantial basis in law and fact with
the purpose of infringing on Fox’s free speech and free press rights. On
January 27, 2023, Judge Davis issued two decisions on those issues. Since
Dominion did not contest application of the actual malice standard to
its defamation claims, Judge Davis ruled that Dominion was a “public
gure for the limited purposes of the defamation claims” in its lawsuits
229. Id. at *23–24.
230. Id. at *24.
231. Id. at *25.
232. Id. at *27.
233. U.S. Dominion, Inc., 2021 WL 5984265, at *28.
234. Id. at *29.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1033
against Fox.
235
In a separate memorandum opinion on applicability of
New York’s anti-SLAPP law, he said he would apply a standard requir-
ing Dominion to present evidence of “clear and convincing evidence”
of actual malice. However, he did not apply the heightened summary
judgment standard required by New York’s anti-SLAPP statute.
236
c. Discovery
In the months following Judge Davis’s opinion denying Fox’s motion
to dismiss, the company’s executives and anchors prepared for their
depositions and turned over to Dominion’s attorneys, as required, their
private emails, text messages, and related documents for the period after
the 2020 presidential election. For eight months, Dominion’s attorneys
analyzed the documents and took depositions from dozens of people
at all levels of the Fox organization. Depositions were taken from Fox
executives and on-air hosts including Maria Bartiromo, Tucker Carlson,
Lou Dobbs, Steve Doocy, Sean Hannity, Ed Henry, Lachlan Murdoch,
Rupert Murdoch, Dana Perino, Jeanine Pirro, Suzanne Scott, Shepard
Smith, and Chris Stirewalt. As the trial approached, Dominion released
portions of the depositions and documents it had obtained during dis-
covery in February 2023.
237
In their depositions, many Fox executives and on-air hosts stated that
they never believed the claims being made against Dominion by guests
such as Sidney Powell and Rudy Giuliani.
238
In his August 2022 deposi-
tion, for example, Sean Hannity said he did not believe Sidney Powell’s
claims of Dominion’s fraud “for one second.”
239
The most damaging
deposition to Fox was the one taken of Rupert Murdoch, the chair of
Fox Corporation.
240
He repeatedly rejected the conspiracy theories
235. U.S. Dominion, Inc. v. Fox News Network, LLC, No. N21C-03-257 EMD, 2023 WL 568869,
at *2 (Del. Super. Ct. Jan. 27, 2023).
236. U.S. Dominion, Inc. v. Fox News Network, LLC, No. N21C-03-257 EMD, 2023 WL 1067961,
at *6 (Del. Super. Ct. Jan. 27, 2023).
237. Jeremy W. Peters & Katie Robertson, ‘The Whole Thing Seems Insane’: New Documents
on Fox and the Election, N.Y. Times (Mar. 7, 2023), https://www.nytimes.com/2023/03/07/business/
media/fox-dominion-2020-election.html.
238. Jeremy W. Peters, In Testimony, Hannity and Other Fox Employees Said They Doubted
Trump’s Fraud Claims, N.Y. Times (Dec. 21, 2022), https://www.nytimes.com/2022/12/21/business/
media/sean-hannity-fox-trump-election.html.
239. Brad Dress, Sean Hannity Admits in Deposition He Didn’t Believe Trump Voter Fraud
Claims, The Hill (Dec. 22, 2022, 4:35 PM), https://thehill.com/homenews/3785645-sean-hannity-
admits-in-deposition-he-didnt-believe-trump-voter-fraud-claims/.
240. Jeremy W. Peters & Katie Robertson, Murdoch Acknowledges Fox News Hosts Endorsed
Election Falsehoods, N.Y. Times (Feb. 27 2023), https://www.nytimes.com/2023/02/27/business/me-
dia/fox-news-dominion-rupert-murdoch.html. Ed Pilkington, Stunning Rupert Murdoch Deposi-
tion Leaves Fox News in a World of Trouble, Guardian (Feb. 28, 2023), https://www.theguardian.
com/media/2023/feb/28/rupert-murdoch-deposition-fox-news-dominion-voting-systems [https://
perma.cc/T8WY-MFZ5]. See also, Michael Wolff, The Fall-The End of Fox News and the
1034 DEPAUL LAW REVIEW [Vol. 73:995
made by Fox News hosts after the election. On one occasion when he
was watching Rudy Giuliani and Sidney Powell on television, he told
Suzanne Scott, the CEO of Fox News: “Terrible stuff damaging every-
body, I fear.”
241
In a January 2023 deposition, Murdoch was asked: “Do
you believe that Dominion was engaged in a massive and coordinated
effort to steal the 2020 presidential election?” Murdoch’s response
was “No.” In another question, Murdoch was asked: “Have you ever
believed that Dominion engaged in a massive and coordinated effort to
steal the 2020 presidential election?” Again, Murdoch’s answered “No.”
Finally, one of Dominion’s attorneys asked Murdoch: “You’ve never
believed that Dominion was involved in an effort to delegitimize and
destroy votes for Donald Trump, correct?” Murdoch replied that “I’m
open to persuasion; but, no, I’ve never seen it.”
242
The emails and text messages also show that, while Fox hosts and
guests were making claims that Dominion voting machines rigged the
presidential election, in private, the Fox hosts were criticizing their
guests for their claims.
243
On their programs, Fox hosts asked questions
that helped them promote their conspiracy theories and made state-
ments themselves that agreed with their guests. Yet, in a series of text
messages turned over during discovery, Tucker Carlson, Lou Dobbs,
Sean Hannity, and Laura Ingraham attacked Sidney Powell and Rudy
Giuliani for making accusations of conspiracy without evidence. For
example, on November 16, 2020, the Lou Dobbs Tonight staff received
an email from Ed Rollins, a Republican strategist who had run a pro-
Trump PAC. Rollins stated that he believed Biden had won the election
because “I have seen or heard no evidence of fraud ... The conspiracy
theories put forth by Rudy and Sidney are all bulls---.”
244
Two days later,
Carlson texted Ingraham that “Sidney Powell is lying ...” Ingraham
Murdoch Dynasty 25–30, 115–27, 260–69 (2023), for the author’s description of Rupert Murdoch’s
reaction to the Dominion suit. In his book Wolff also explored the impact of the Dominion CEO’s
trial strategy: The Dominion CEO’s “pushing forward with the lawsuit, which had yielded more
and more favorable rulings, as well as the motherlode of discovery lings, had conrmed both the
likelihood of great prot as well as his righteous mission.” Id. at 265.
241. Jeremy W. Peters & Katie Robertson, Fox Stars Privately Expressed Disbelief About Elec-
tion Fraud Claims. ‘Crazy Stuff.’, N.Y. Times (Feb. 16, 2023), https://www.nytimes.com/2023/02/16/
business/media/fox-dominion-lawsuit.html [hereinafter Peters & Robertson, Fox Stars Privately
Expressed Disbelief About Election Fraud Claims].
242. Oliver Darcy, Fox Chairman Rupert Murdoch Rejected Election Conspiracy Theories, Do-
minion Lawsuit Documents Show, CNN (Mar. 8, 2023), https://www.cnn.com/2023/03/07/media/
fox-news-dominion-lawsuit/index.html [https://perma.cc/A4FL-5XLW].
243. Stuart A. Thompson, Karen Yourish & Jeremy W. Peters, What Fox News Hosts Said Pri-
vately vs. Publicly About Voter Fraud, N.Y. Times (Feb. 25, 2023), https://www.nytimes.com/interac-
tive/2023/02/25/business/media/fox-news-dominion-tucker-carlson.html.
244. Amanda Terkel & Jane C. Timm, See What Fox News Tried to Redact in the Dominion Def-
amation Case, NBC (Apr. 14, 2023), https://www.nbcnews.com/media/see-fox-news-tried-redact-
dominion-defamation-case-rcna77481 [https://perma.cc/4SGY-L2RF].
2024] NEW YORK TIMES v. SULLIVAN AT 60 1035
responded: “Sidney is a complete nut. No one will work with her. Ditto
with Rudy.”
245
However, they and other Fox news hosts continued to
invite Giuliani and Powell and others onto their evening programs and
continued to support their claims that electronic voting machines had
contributed to a stolen election. Finally, the emails and text messages
also show that Fox’s top executives and on-air hosts were less worried
about the factual accuracy of what they were saying than about rat-
ings, particularly after viewers who supported Trump’s claims of elec-
tion fraud began to switch to Newsmax and OANN which supported
his claims.
246
In the month leading up to the scheduled beginning of its defamation
trial, Fox faced more trouble. Abby Grossman, a news producer who
worked with on-air hosts Maria Bartiromo and Tucker Carlson, led
lawsuits in New York and Delaware accusing Fox of coercing her into
giving misleading testimony concerning the network’s coverage of elec-
tion fraud claims against Dominion.
247
In her complaint, she alleged that
Fox News lawyers coached her in “a coercive and intimidating man-
ner” before her deposition in the Dominion case. She settled her claim
against Fox in late June 2023, for $12 million.
248
d. Settlement and Aftermath
With less than a month before the trial of Dominion’s claim was
scheduled to begin, a number of decisions by Judge Davis went against
Fox and added to its problems. On March 22nd, Fox led a motion in
Delaware state court seeking partial summary judgment on the grounds
that Fox Corporation executives, including Rupert Murdoch and his
son Lachlan, had no direct involvement with what was aired on Fox
programs and thus were not liable to Dominion for defamation. A week
later, Judge Davis not only denied Fox News and Fox Corporation’s
motions for summary judgment, he also held the evidence developed
in the case “is CRYSTAL clear that none of the Statements relating to
Dominion about the 2020 election are true.”
249
This would have a major
245. Peters & Robertson, Fox Stars Privately Expressed Disbelief About Election Fraud Claims,
supra note 241.
246. Jeremy W. Peters, Fox Leaders Wanted to Break From Trump but Struggled to Make It
Happen, N.Y. Times (Feb. 28, 2023), https://www.nytimes.com/2023/02/28/business/media/fox-news-
trump-break.html.
247. See Grossberg v. Fox Corporation, No. 1:23-cv-02368 (S.D.N.Y. Mar. 20, 2023).
248. Notice of Voluntary Dismissal, Grossberg v. Fox Corp., No. 1:23-cv-02368 (S.D.N.Y. June 30,
2023), ECF No. 46. See Jeffrey A. Trachtenberg, Fox Settles Litigation With Former Producer for $12
Million; Former Producer Abby Grossberg Had Alleged a Toxic Workplace, Wall St. J. (June 30, 2023),
https://www.wsj.com/articles/fox-settles-litigation-with-former-producer-for-12-million-fe9f52b6.
249. US Dominion, Inc v. Fox News Network, No. N21C-03-257 EMD, 2023 WL 2730567, at *21
(Del. Super. Ct., Mar. 31, 2023).
1036 DEPAUL LAW REVIEW [Vol. 73:995
impact if the case went to trial since it left the jury to decide only two
questions: did Fox spread the false claims about Dominion with actual
malice (i.e., knowing that the statements were false or were made with
reckless disregard as to whether they were true) and, if so, what dam-
ages did Dominion suffer because of the publication of the defamatory
statements? On April 5th Judge Davis also held that Dominion could
compel both Rupert Murdoch and Lachlan Murdoch to testify at the
trial.
250
That ruling had the potential to further embarrass Fox if the
Murdochs, the top executives at Fox, along with other executives and
on-air hosts had to answer questions about why they made and allowed
conspiracy theories to be made about the 2020 election when they knew
the allegations were not true.
In the days before the trial was scheduled to begin, Fox faced further
trouble. First, Judge Davis said Fox had a “credibility problem” for its
late disclosure that Rupert Murdoch was the Chairman of Fox Cor-
poration.
251
Less than a week later, Judge Davis ruled that Fox News
could not claim that the false information about Dominion was pro-
tected under the “newsworthiness defense.”
252
Four days before the trial
was due to begin, another problem for Fox arose when a recording of
Rudy Giuliani was made public. The recording was made by a former
Fox employee of Giuliani saying, just before an appearance on a Fox
program, that he did not have any evidence to back up his claims of
election rigging by Dominion.
253
Jury selection for the trial began on Thursday, April 13th, and, at the
end of the day, Judge Davis announced that it would resume on Monday,
April 17th.
254
With the trial scheduled to begin on Tuesday, April 18th,
newspaper articles ran articles over the weekend on how the trial “could
reshape libel law” and how the trial would be a “dramatic moment in
250. Katie Robertson, Rupert Murdoch Can Be Forced to Testify in Defamation Trial, Judge
Says, N.Y. Times (Apr. 5, 2023), https://www.nytimes.com/2023/04/05/business/media/rupert-mur-
doch-testify-fox-dominion-trial.html.
251. Tom Hals, Judge Says Fox Has ‘Credibility Problem’ After Murdoch Disclosure, Reuters
(Apr. 11, 2023, 10:49 PM), https://www.reuters.com/business/media-telecom/judge-says-fox-news-
has-credibility-problem-after-murdoch-disclosure-2023-04-11/#:~:text=WILMINGTON%2C%20
Delaware%2C%20April%2011%20(,an%20ofcer%20of%20the%20company.
252. Jeremy W. Peters, Judge Limits Fox’s Options for Defense in Dominion Trial, N. Y. Times
(Apr. 11, 2023), https://www.nytimes.com/2023/04/11/business/fox-news-dominion-trial.html.
253. Marshall Cohen, Judge in Dominion Case Sanctions Fox for Withholding Evidence,
Plans to Appoint Special Master to Probe Misconduct, CNN Bus. (Apr. 12, 2023), https://www.
cnn.com/2023/04/12/media/fox-news-dominion-special-master/index.html [https://perma.
cc/66K8-VHAM].
254. Helen Coster, Dominion’s $1.6 Billion Suit Against Fox Set to Start Monday,
Reuters (Apr. 13, 2023, 6:25 PM), https://www.reuters.com/legal/jury-selection-set-
begin-dominions-16-billion-lawsuit-against-fox-2023-04-13/.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1037
American history.”
255
After swearing in the jury on Tuesday morning,
Judge Davis immediately adjourned for lunch and then further delayed
the opening statements.
256
Late in the afternoon, the parties announced
that they had reached a settlement in the case.
257
Under the terms of
the settlement, Fox News did not have to apologize or admit that it
had made and helped spread defamatory statements about Dominion.
Instead, it released a statement saying simply, “We acknowledge the
Court’s rulings nding certain claims about Dominion to be false.”
258
The statement then went on to claim that the settlement “reects Fox’s
continued commitment to the highest journalistic standards.”
259
Although the settlement was the lead story for most news organiza-
tions, Fox News devoted only six minutes of broadcast time to the set-
tlement on the night it happened.
260
However, the fact that Fox agreed
to pay Dominion $787.5 million in damages was an implicit admission
of guilt. The only larger award of damages in a defamation case came in
November 2022 when a jury awarded the families of the victims of the
Sandy Hook elementary school shooting $1.4 billion in damages in their
suit against Alex Jones.
261
However, the settlement not only saved Fox
255. Michael M. Grynbaum, Landmark Trial Against Fox News Could Affect the Future of Libel
Law, N.Y. Times (Apr. 13, 2023), https://www.nytimes.com/2023/04/13/business/media/fox-domin-
ion-libel-trial.html. See also Ankush Khardori, 6 Key Things to Watch for in the Dominion vs. Fox
News Trial. The View from the Courtroom Is Bleak for Murdoch, Intelligencer (Apr. 17, 2023),
https://nymag.com/intelligencer/2023/04/6-key-things-to-watch-for-in-the-dominion-vs-fox-news-
trial.html. One opinion author, Jeff Kosseff, wrote an article entitled What Protects Fox News Also
Protects Our Democracy, N.Y. Times (Apr. 14, 2023), https://www.nytimes.com/2023/04/14/opinion/
dominion-fox-news-supreme-court-sullivan.html#:~:text=The%20actual%20malice%20rule%20
protects,because%20of%20an%20accidental%20error. Kosseff argued: “The precedent does not
provide media outlets and other speakers with a blank check to knowingly lie. Actual malice is a
high bar but it is not insurmountable.... But Sullivan gives Fox the opportunity to present this
defense rather than automatically becoming liable for every error.”
256. Sam Levine & Kira Lerner, Fox and Dominion Settle for $787.5 Million in Defamation Law-
suit Over US Election Lies, Guardian (Apr. 18, 2023), https://www.theguardian.com/us-news/2023/
apr/18/fox-dominion-settle-us-defamation-lawsuit [https://perma.cc/T5BY-ZNHR].
257. Jim Rutenberg, Michael S. Schmidt & Jeremy W. Peters, Missteps and Mis-
calculations: Inside Fox’s Legal and Business Debacle, N.Y. Times (May 27, 2023),
https://www.nytimes.com/2023/05/27/business/media/fox-news-dominion-voting.
html; Erin Mulvaney, Fox Has Settled One Voting Machine Company’s Defamation
Case. Another Looms, Wall St. J. (Apr. 19, 2023, 9:13 PM), https://www.wsj.com/articles/
fox-has-settled-one-voting-machine-companys-defamation-case-another-looms-ffd90685.
258. Press Release, Fox News Media, Fox News and Dominion Voting Systems Reach Settle-
ment (Apr. 18, 2023), https://press.foxnews.com/2023/04/fox-news-and-dominion-voting-systems-
reach-settlement#:~:text=In%20making%20the%20announcement%2C%20the,to%20the%20
highest%20journalistic%20standards [https://perma.cc/EKD4-H4F5].
259. Id.
260. Stuart A. Thompson, Fox News’s Settlement in the Dominion Case Is Big News, Except
on Fox News, N.Y. Times (Apr. 18, 2023), https://www.nytimes.com/2023/04/18/business/media/fox-
news-dominion-settlement-coverage.html.
261. Wilfred Chan, Alex Jones Owes $1.5bn and Declared Bankruptcy. So How is Infowars Still
Running? Guardian (Dec. 8, 2022, 1:00 PM), https://www.theguardian.com/us-news/2022/dec/07/
1038 DEPAUL LAW REVIEW [Vol. 73:995
from a long and expensive trial, it had two other benets for the com-
pany: rst, it saved it from the embarrassment that the release during
trial of documents showing that Fox on-air hosts either did not believe
what they and their guests were saying or were deeply skeptical of their
claims and, secondly, it saved Fox from the strong possibility of an even
larger damage award if the jury found that the company had acted with
actual malice.
262
The settlement of its lawsuit with Dominion did not end Fox’s prob-
lems resulting from the allegations made following the 2020 presi-
dential election. A week after the settlement, Tucker Carlson, whose
program Tucker Carlson Tonight was the most widely watched cable
news program in the country, left Fox News.
263
Fox cancelled Carlson’s
program without providing a reason. However, text messages obtained
during discovery in the Dominion case showed that Carlson said he
hated Donald Trump and criticized some of his own guests.
264
In August
2023, Fox Corporation’s chief legal ofcer, Viet Dinh, also left his posi-
tion with Fox. Some inside Fox felt he gave the company awed legal
advice during the Dominion lawsuit.
265
The most serious problem confronting Fox after the Dominion set-
tlement is the lawsuit brought against it in New York by Smartmatic,
which is seeking $2.7 billion in damages.
266
That suit also arises out of
alex-jones-infowars-bankruptcy [https://perma.cc/CV9R-H86N]. In November 2023, the Sandy
Hook families made an offer in Jones’s bankruptcy case to settle for $85 million over ten years. It
is not clear whether Jones will accept the families’ offer. Timothy Bella, Sandy Hook Families Offer
Alex Jones a Deal to Settle $1.5 Billion Debt, Wash. Post (Nov. 28, 2023, 10:47 AM), https://www.
washingtonpost.com/nation/2023/11/28/alex-jones-bankruptcy-sandy-hook-settlement/ [https://
perma.cc/V4VW-4PHB].
262. See Michelle Goldberg, The Ludicrous Agony of Rupert Murdoch, N.Y. Times (Sept. 21,
2023), https://www.nytimes.com/2023/09/21/opinion/rupert-murdoch-fox-news.html (discussing
Michael Wolff’s 2023 book The Fall and the 2020 election).
263. Jeremy W. Peters, Katie Robertson & Michael M. Grynbaum, Tucker Carlson, a Source
of Repeated Controversies, is Out at Fox News, N.Y. Times (Apr. 24, 2023), https://www.nytimes.
com/2023/04/24/business/media/tucker-carlson-fox-news-dismissal.html#:~:text=Fox%20
News%20on%20Monday%20dismissed,activists%2C%20vaccines%20and%20national%20
identity.
264. Defamation Suit Produced Trove of Tucker Carlson Messages, As-
sociated Press (Apr. 24, 2023, 6:55 PM), https://apnews.com/article/
tucker-carlson-fox-news-dominion-lawsuit-trump-5d6aed4bc7eb1f7a01702ebea86f37a1.
265. Jeremy W. Peters, Fox’s Chief Legal Ofcer Will Depart, N.Y. Times (Aug. 11, 2023), https://
www.nytimes.com/2023/08/11/business/media/viet-dinh-fox-departing.html.
266. Summons, Smartmatic USA Corp. v. Fox Corp., No. 151136/2021 (N.Y. Sup. Ct. Feb. 4, 2021).
For the complaint in the case, see Complaint, Smartmatic USA Corp. v. Fox Corp., No. 151136/2021
(N.Y. Sup. Ct. Feb. 4, 2021). On January 23, 2024, Judge David B. Cohen issued a decision denying
Smartmatic’s motion to dismiss the Fox Corporation defendants’ counterclaim against Smartmatic
for taking action allegedly “calculated to chill defendants’ free speech rights.” See Smartmatic
USA Corp. v. Fox Corp., No. 151136/2021, 2024 WL 247093, at *1 (N.Y. Sup. Jan. 23, 2024). Judge
Cohen found no decision in the Dominion v. Fox litigation had a collateral estoppel effect on the
Smartmatic case due to settlement before trial in the Dominion action. Moreover, even assuming
2024] NEW YORK TIMES v. SULLIVAN AT 60 1039
allegations of fraud in counting the 2020 residential ballots. The deci-
sion that Judge Davis made in the Dominion suit rejecting Fox’s First
Amendment defenses likely will have an impact on Smartmatic’s defa-
mation suit against Fox. Finally, in April 2023, Fox shareholders have
led a shareholders derivative suit against Rupert Murdoch and his son
and other Fox board members for not exercising adequate in Delaware
alleging duciary breach of duty for not exercising adequate oversight
of the company.
267
Dominion’s settlement with Fox is not the end of its litigation over
allegedly defamatory statements made about it after the 2020 election.
It currently has suits in the discovery stage against Sidney Powell,
268
Rudolph W. Giuliani,
269
My Pillow, Inc.,
270
Newsmax Media, Inc.,
271
Her-
ring Networks Inc.,
272
and Patrick Byrne.
273
As important as the Dominion case and settlement are, they have
little direct impact on the future of the New York Times v. Sullivan deci-
sion since neither party challenged its constitutionality. That was under-
standable for Fox, since, as a media defendant, it wanted to make it
as difcult as possible for Dominion to recover and the actual malice
standard sets a very high standard for recovery in defamation cases.
However, as the Dominion case progressed, particularly through the
discovery stage, it became clear to the company that the treasure trove
of emails and text messages between Fox on-air hosts, along with their
depositions and those of executives, would allow it to prove that Fox
was making and supporting statements it knew or strongly suspected
were false. Although Judge Davis left it to the jury to decide whether
estoppel is applicable, Judge Cohen ruled “there remain[s] a triable issue of fact for trial in that ac-
tion as to whether defendants acted with actual malice, which is an element that plaintiffs [Smart-
matic] need to prove here as well.” See id. at *4. Accordingly, both Smartmatic and Fox’s claims
will move forward.
267. Jody Goday & Helen Coster, Fox Shareholder Sues Rupert Murdoch, Other Directors
Over 2020 Election Coverage, Reuters (Apr. 12, 2023, 10:58 AM), https://www.reuters.com/legal/
fox-shareholder-sues-rupert-murdoch-other-directors-over-2020-election-coverage-2023-04-12/.
268. US Dominion, Inc. v. Powell, No. 1:21-cv-00040 (CJN) (D.C. led Aug. 11, 2021). The pend-
ing lawsuit alleges defamation and seeks damages of $1.3 billion. See Michael Conklin, Rage
Against the Voting Machine: Dominion’s Defamation Lawsuit Against Sidney Powell, 26 Ill. Bus.
L. J. 1 (2021).
269. US Dominion, Inc. v. Giuliani, No. 1:21-cv-00213 (D.C. led Aug. 11, 2021). The lawsuit
seeks $1.3 million in damages.
270. US Dominion, Inc. v. My Pillow, Inc., No. 1:21-cv-00445 (D.C. led Aug. 11, 2021). The law-
suit seeks $1,303,470,000 in damages.
271. US Dominion, Inc. v. Newsmax Media, Inc., No. N21C-08-063, 2022 WL 2208580 (Del.
Super. Ct. June 16, 2022). The lawsuit seeks at least $41.6 million in compensatory and punitive
damages.
272. US Dominion, Inc. v. Herring Networks, Inc., F. Supp. 3d 143 (D.C. 2022). The lawsuit seeks
at least $1.6 billion in damages.
273. US Dominion, Inc. v. Byrne, No. 1:21-cv-02131 (D.C. led Aug. 10, 2021). The lawsuit seeks
at least $1.6 billion in damages.
1040 DEPAUL LAW REVIEW [Vol. 73:995
there was actual malice, the fact that Fox settled for such a large amount
indicates that it seriously worried that the jury would legitimately nd
actual malice and would award even greater damages.
While the Dominion case shows that Sullivan does not make it
impossible to hold media organizations responsible for their false state-
ments, the case may be unique. It also is possible that the Dominion
case will make it more difcult to prove actual malice if media organi-
zations adopt policies prohibiting employees from emailing and texting
each other with their personal views and criticisms of the guests and
issues they are covering. Without the internal emails, text messages, and
depositions of Fox on-air hosts and executives, Dominion’s case would
have been much more difcult, and it is doubtful whether it could have
shown actual malice.
274
II.
NEW YORK TIMES V. SULLIVAN
: Political, Legislative, and
Judicial Challenges
Although the decision in New York Times v. Sullivan was unanimous,
the decision has not been without its critics over the past sixty years.
In our article commemorating the 50th anniversary of Sullivan, we dis-
cussed some of the judicial and academic critics and their claims that
Sullivan needlessly ignored common law standards, that it failed to stem
the tide of large verdicts in libel cases, and that the actual malice stan-
dard operates as a catalyst for the expenditure of even greater defense
costs.
275
However, the past ten years have seen more calls to reverse, or
at least revise, New York Times v. Sullivan than at any other time in the
decision’s sixty-year history. A new element was added in 2015 when
Donald Trump, then a candidate for president, began calling for the deci-
sion to be reversed. Additional criticism followed in February 2023 from
Florida Governor Ron DeSantis and the Florida state legislature which
introduced (but did not enact) bills whose major elements explicitly
274. For a recent analysis of the background of the Dominion litigation and the reaction of
Fox media representatives, see generally Brian Stelter, Network of Lies: The Epic Saga of Fox
News, Donald Trump, and The Battle for American Democracy (2023). Stelter’s analysis is
enlightening:
Of all the efforts at Big Lie accountability... Dominion’s lawsuit against Fox was the
most expensive. Fox’s executive team had dismissed Dominion’s chances... . But Fox ul-
timately paid a staggering self-imposed ne for its unchecked attacks on Dominion—and
the accountability did not end there. Because Fox was subject to the pretrial discovery
process, it was forced to share years of emails, texts, chats, and memos with Dominion.
Through court lings, Dominion ensured that thousands of documents were exposed to
the public.
Id. at 4. These documents not only exposed Fox to potential liability in the Smartmatic litigation
but also reect the value of broad discovery in cases with on-going statements of untruths.
275. Lewis & Ottley, supra note 7, at 27–36.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1041
conicted with Sullivan. One Supreme Court Justice, Clarence Thomas,
has called, in ve opinions since 2019, for Sullivan to be reversed as con-
icting with the First and Fourteenth Amendments.
276
Another Justice,
Neil Gorsuch, has urged the Court to “reconsider” the decision, with-
out specifying what that that would entail. Finally, criticism of Sullivan
has continued to come from the academy and from politically oriented
think-tanks with their focus now on the failure of Sullivan to meet the
originalism test, the changed nature of the media since 1964, and the
perceived threat that Sullivan poses to the political system.
So far, the Supreme Court has refused to take up the challenges to
Sullivan. However, the arguments and actions of some politicians, state
legislatures, judges, and scholars may leave the Court with little choice
but to consider the precedent of the case. This Part examines the politi-
cal, legislative, scholarly, and judicial challenges that have been made to
Sullivan since 2014. It also reviews the arguments made by those who
defend the decision and feel it should be preserved.
A. Political and Legislative Challenges
1. Donald Trump: Open Up Libel Laws!
U.S. presidents have complained about their treatment by the press
since the beginning of the republic.
277
However, the rst president to
propose changing defamation law to make it easier for public ofcials
and public gures to recover damages for stories about them published
by news organizations was Donald Trump. At a political rally in Fort
Worth, Texas, in late February 2016, Trump, then a candidate for presi-
dent, stated:
I think the media is among the most dishonest groups of people I’ve
ever met. They’re terrible. If I become President, oh, do they have
problems. They’re going to have such problems. * * * One of the things
I’m going to do if I win ... I’m going to open up our libel laws so that
when they write purposely negative and horrible and false articles, we
can sue them and win lots of money.... So when The New York Times
writes a hit piece which is a total disgrace or when the Washington
Post ... writes a hit piece, we can sue them and win money instead of
having no chance of winning because they are totally protected. You
see, with me they’re not protected ....
278
When Trump met with the Washington Post editorial board the fol-
lowing month, the members asked him what he wanted to do with libel
laws. Trump replied that if a newspaper gets a story wrong, it should
276. See infra notes 351–81.
277. Harold Holzer, The Presidents vs. The Press 422–43 (2020).
278. Donald J. Trump, Speech During Campaign Rally in Fort Worth, Texas (Feb. 26, 2016).
1042 DEPAUL LAW REVIEW [Vol. 73:995
publish a retraction. “They should at least try to get it right. And if they
don’t do a retraction, they should, you know, have a form of a trial.”
279
Unfortunately, Trump did not elaborate on what he meant by “a form of
a trial” or what would be the standard for recovery. However, he went
on to state that he did not want to “impede free press” and that all he
wanted was fairness because libel laws were “really impotent.”
280
After his election in 2016, President Trump repeated his desire to
change defamation law in a Twitter post in March 2017, in which he
stated that “[t]he failing [New York Times] has disgraced the media
world. Gotten me wrong for two solid years.”
281
He concluded his post
by asking: “Change libel laws?”
282
Since Trump was talking about the
effect of defamation on himself (a public ofcial), a “change” in the
law would require reversing or reinterpreting Sullivan and the actual
malice standard. That same month, Reince Priebus, Trump’s Chief of
Staff, said the White House actively was considering a change to libel
laws affecting news reporting. However, he admitted that “[h]ow that
gets executed and whether that goes anywhere is a different story....
This is something that is being looked at.”
283
Although the Trump
administration never stated specically what was “being looked at” and
did not propose specic steps to “open up” libel laws, at the beginning
of a Cabinet meeting in January 2018 Trump took implicit aim at the
Sullivan decision when he said his administration would:
take a strong look at our country’s libel laws so that when somebody
says something that is false and defamatory about someone, that per-
son will have a meaningful recourse in our courts .... Our current
libel laws are a sham and a disgrace and do not represent American
values and American fairness.
284
Trump made those comments shortly after his attorneys sent a cease-
and-desist letter and threat to sue for defamation to Henry Holt & Co.,
the publisher of Michael Wolff’s book, Fire and Fury: Inside the Trump
279. Brian Naylor, All Things Considered, Donald Trump Wants To ‘Open Up’ Libel Laws So He
Can Sue News Outlets, NPR (Mar. 24, 2016, 4:30 PM), https://www.npr.org/2016/03/24/471762310/
donald-trump-wants-to-open-up-libel-laws-so-he-can-sue-news-outlets [https://perma.
cc/8W4J-PYJE].
280. Id.
281. Jacob Sullum, Trump Wants to ‘Change Libel Laws’ So That Truth Is No Defense, Reason
Mag. (Mar. 31, 2017, 7:00 AM), https://reason.com/2017/03/31/trump-wants-to-change-libel-laws-
so-that/ [https://perma.cc/HG3B-SNCB].
282. Id.
283. Steve Benen, White House is Looking at Changing Laws that Protect U.S. Press, MSNBC
(May 1, 2017, 10:00 AM), https://www.msnbc.com/rachel-maddow-show/white-house-looking-
changing-laws-protect-us-press-msna985396 [https://perma.cc/9JEF-QMJU].
284. Michael M. Grynbaum, Trump Renews Pledge to ‘Take a Strong Look’ at Libel Laws, N.Y.
Times (Jan. 10, 2018), https://www.nytimes.com/2018/01/10/business/media/trump-libel-laws.html.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1043
White House,
285
in an unsuccessful attempt to block publication of the
book, which was critical of the Trump administration. In response,
the publisher increased the number of copies of the rst edition and
moved-up its release date.
286
Wolff’s book became a best-seller, and
Trump never led a lawsuit against him.
In response to critical excerpts from another book, Bob Woodward’s
Fear: Trump in the White House,
287
published a week before the book’s
release in September 2018, Trump called on “Washington politicians”
to change the nation’s libel laws.
288
Despite Trump’s repeated criticism
of defamation laws, there was little he or the Republican majority in
Congress could do to change those laws since defamation is an issue
for state courts and legislatures and has a constitutional component
as a result of the Sullivan decision. Although Trump could have used
his three appointments to the Supreme Court to nominate Justices
who supported reversing Sullivan and making defamation entirely an
issue of state law, he chose not do so. Only Justice Neil Gorsuch among
Trump’s Supreme Court appointees has indicated a desire to reexam-
ine Sullivan.
289
More importantly, in Counterman v. Colorado,
290
a June
2023 decision of the Supreme Court, seven of the nine Justices explicitly
referred to Sullivan and the actual malice standard to vacate a criminal
conviction in a case dealing with the appropriate level of recklessness
in “true-threats” cases.
291
Part of Trump’s stated desire during his administration to change
defamation law and make it easier for public ofcials and public gures
to recover may have stemmed from the fact that none of the defama-
tion suits he led in the thirty years before he became president had
been successful on their merits in a court. In a 2016 article published in
Communications Lawyer, Professor Susan Seager discussed the seven
speech-related lawsuits led by Trump and his companies between 1984
and 2015.
292
None of the seven unsuccessful suits were brought against
newspapers or cable news networks that became the focus of Trump’s
285. See Michael Wolff, Fire and Fury: Inside the Trump White House (2018).
286. Peter Baker, After Trump Seeks to Block Book, Publisher Hastens Release, N.Y. Times
(Jan. 4, 2018), https://www.nytimes.com/2018/01/04/us/politics/trump-threatens-sue-re-fury-pub-
lisher.html.
287. Bob Woodward, Fear: Trump in the White House, 318–19 (2018).
288. John Wagner, Trump Suggests Libel Laws Should be Changed After Uproar Over Wood-
ward Book, Wash. Post (Sept. 5, 2018, 3:07 PM), https://www.washingtonpost.com/politics/trump-
suggests-libel-laws-should-be-changed-after-uproar-over-woodwards-book/2018/09/05/9c00f2be-
b02b-11e8-9a6a-565d92a3585d_story.html [https://perma.cc/R8HN-5CZD].
289. Berisha v. Lawson, 141 S. Ct. 2424 (2021) (Gorsuch, J., dissenting).
290. Counterman v. Colorado, 600 U.S. 66 (2023).
291. Id. at 83–105 (opinion of Sotomayor, J.).
292. Susan E. Seager, Donald J. Trump Is a Libel Bully but Also a Libel Loser, 32 Commc’ns
Lawyer, Fall 2016, at 2.
1044 DEPAUL LAW REVIEW [Vol. 73:995
criticism and litigation after 2016. Instead, he and his companies sued
an architecture critic, a book author, a former Trump University stu-
dent, a Miss Pennsylvania winner, the cable television show host Bill
Maher, a culinary and bartender labor union, and a Spanish-language
television network’s programing chief.
293
As discussed previously, Southern politicians used defamation law-
suits, and the threat of such suits, during the struggle for civil rights
in the early 1960s to try to prevent the Northern media from writing
articles critical of their segregationist policies. In the same way, Trump
has used social media attacks, cease-and-desist letters, the threat of liti-
gation, and defamation actions since 2016 as tools to discredit publish-
ers, the media, journalists, and those he feels have been critical of him.
For example, in February 2019 Trump called for “retribution” (without
specifying what form it would take) against NBC for satirizing him on
Saturday Night Live.
294
The same week, he called the New York Times
“a true ENEMY OF THE PEOPLE,” a term he has used to describe a
number of news media outlets.
295
In a Twitter post he wrote, “The Press
has never been more dishonest than it is today. Stories are written that
have no basis in fact. The writers don’t even call for verication. They
are totally out of control ... The New York Times reporting is false.”
296
In June 2019, Trump accused the New York Times of committing “a
virtual act of treason” in response to an article about American interfer-
ence with the Russian electrical grid.
297
In his 2020 book The Presidents
vs. The Press,
298
historian Harold Holzer took the position Trump’s tac-
tics were designed to undermine condence in the media, which then
would undermine the believability of the press attacks on him. Holzer
wrote:
As president, Donald Trump increasingly made media-bashing a sta-
ple not only of his messaging but also of his policy. It would be hard
to argue that he did not intend to permanently fracture American
293. Id. at 1, 5–9.
294. CNN, Trump Threatens ‘SNL’ with ‘Retribution’ Over Parody, YouTube (Feb. 18, 2019),
https://www.youtube.com/watch?v=V7Qp4sg5fFg.
295. Michael M. Grynbaum & Eileen Sullivan, Trump Attacks The Times, in a Week of Un-
ease for the American Press, N.Y. Times (Feb. 20, 2019), https://www.nytimes.com/2019/02/20/
us/politics/new-york-times-trump.html [hereinafter Grynbaum & Sullivan, Trump Attacks
The Times]; see Erik Wemple, Trump Called the Media ‘the Enemy of the People.’ He Means It.,
Wash. Post (Mar. 20, 2023, 9:15 AM), https://www.washingtonpost.com/opinions/2020/03/20/
trump-called-media-enemy-people-he-means-it.
296. Grynbaum & Sullivan, Trump Attacks The Times, supra note 295.
297. See A.G. Sulzberger, Accusing the New York Times of ‘Treason’, Trump
Crosses a Line, Wall St. J. (June 19, 2019, 6:59 PM), https://www.wsj.com/articles/
accusing-the-new-york-times-of-treason-trump-crosses-a-line-11560985187.
298. Holzer, supra note 277.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1045
condence in the press—at least that sector of the bifurcated partisan
media that often-found fault with him.
299
Since 2020, Trump has led at least seven defamation lawsuits and
has been sued twice for defamation. However, in only one of the suits
did Trump urge that New York Times v. Sullivan should be reexamined.
In all the other suits, he focused on the alleged defamatory statements
made by the defendants and asserted that the publication of the state-
ments met the actual malice standard. All the suits led by Trump later
were dropped or dismissed or are pending.
• In February of 2020, Trump led a suit against the New York
Times arising out of a 2019 article he alleged falsely accused his
campaign of colluding with Russia to undermine the 2016 presi-
dential election. In March 2021, a New York state court dismissed
the suit, saying that the complaint failed to allege facts meeting
the requirements of the actual malice test.
300
• In March 2020, Trump sued the Washington Post claiming that a
series of articles the newspaper published during the 2020 cam-
paign were false and forced his campaign committee to spend
money refuting them. A federal district court judge in D.C. dis-
missed that suit in February 2023, again saying that Trump had
failed to plead sufcient factual allegations to support an infer-
ence of actual malice.
301
• In March 2020, Trump’s campaign led a defamation lawsuit in
Georgia against CNN. The suit alleged a statement that the cam-
paign “assessed the potential risks and benets of again seeking
Russia’s help in 2020 and has decided to leave that option on the
table” was defamatory. In November 2020, a federal district court
judge dismissed the suit saying that the complaint failed to plead
knowledge of the falsity or reckless disregard of the truth.
302
• In April 2020 Trump’s reelection campaign committee led a def-
amation suit against a television station in Wisconsin for broad-
casting a political advertisement prepared by the PAC Priorities
USA. Trump claimed that the ad made it appear that he had said
that the coronavirus was a hoax and that the broadcast of the
299. Id. at 422.
300. Marc Tracy, Court Dismisses Trump Campaign’s Defamation Suit Against New York Times,
N.Y. Times (Sept. 23, 2021), https://www.nytimes.com/2021/03/09/business/media/trump-new-york-
times-lawsuit-dismissed.html.
301. Zoe Tillman, Trump 2020 Campaign Suit Against Washington Post Dismissed, Bloomberg
(Feb. 3, 2023, 4:41 PM), https://www.bloomberg.com/news/articles/2023-02-03/trump-2020-cam-
paign-suit-against-washington-post-is-dismissed#xj4y7vzkg [https://perma.cc/5RLX-JCBM].
302. Eriq Gardner, Judge Dismisses Donald Trump’s Libel Suit Against CNN, Hollywood Rep.
(Nov. 12, 2020, 10:32 AM), https://www.hollywoodreporter.com/business/business-news/judge-dis-
misses-donald-trumps-libel-suit-against-cnn-4091792/ [https://perma.cc/2E3T-D7GK].
1046 DEPAUL LAW REVIEW [Vol. 73:995
advertisement met the actual malice test. However, in November
2020, Trump’s reelection campaign dropped the suit, with each
side agreeing to pay their own costs and attorney fees.
303
• In October 2022, Trump led a $475 million defamation suit
against CNN in federal court in Florida, alleging that the network
defamed him with fake news for the purpose of damaging his
chances of reelection in 2024.
304
In his December 2022 response
in opposition to CNN’s motion to dismiss, Trump alleged that his
complaint adequately established actual malice. But he urged the
court not to “reexively apply” Sullivan since “[t]he sustained
defamation of falsely linking President Trump to Nazis provides a
perfect vehicle for Supreme Court reexamination of Sullivan.”
305
The federal district court judge did not accept that argument and
in late July 2023, dismissed the suit, stating that all the statements
that Trump relied upon in his complaint were opinion and could
not be the basis for defamation.
306
• In May 2023, Trump’s media company, Trump Media & Technology
Group (TMTG) led a suit against the Washington Post claiming
that an article about it nances was defamatory. The suit alleged
that the Post acted with actual malice because it published “fabri-
cated facts about securities fraud and published and republished
Statements that were a product of their imagination.” The com-
pany is seeking $2.78 billion in compensatory and $1 billion in
punitive damages.
307
Trump’s near silence since 2018 on his earlier pledge to “open up
libel law,” which could be done only by reversing or revising Sullivan
and the actual malice standard, indicates that his earlier statement may
303. David Shepardson, Trump Campaign Drops Suit Against Wisconsin NBC Af-
liate Over Ad, Reuters (Nov. 16, 2020, 6:41 PM), https://reuters.com/article/
usa-election-ad-lawsuit-idUKL1N21235C.
304. Trump Files $475 Million Defamation Lawsuit Against CNN, Associated Press (Oct. 3,
2022, 10:46 PM), https://apnews.com/article/biden-lawsuits-orida-elections-8d652c0457b2c21539
4cd6063250149a.
305. Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss, Trump v. Cable News
Network, Inc., No. 0:22-CV-61842-AHS, at 5, 7 (S.D. Fla. Dec. 30, 2022).
306. Nicole Sperling, Judge Dismisses Trump’s $475 Million Defamation Suit Against CNN, N.Y.
Times (July 30, 2023), https://www.nytimes.com/2023/07/30/business/media/trump-cnn-lawsuit.
html; Ty Roush, Trump Loses $475 Million Suit Against CNN—Latest Defeat in Multiple Media Fa-
ceoffs, Forbes (July 29, 2023, 4:48 PM), https://www.forbes.com/sites/tylerroush/2023/07/29/trump-
loses-475-million-suit-against-cnn-latest-defeat-in-multiple-media-faceoffs/?sh=7f3f5dde793d
[https://perma.cc/LT58-AY44].
307. Complaint at 13, Trump Media & Tech. Grp. Corp. v. WP, Co., LLC, No. 2023-CA-004552
(Fla. Cir. Ct. May 20, 2023); Zach Everson, Trump’s Social Media Business Sues Washington Post,
Seeking $3.8 Billion In Damages, Forbes (May 23, 2023, 9:31 AM), https://www.forbes.com/sites/
zacheverson/2023/05/23/trumps-social-media-business-sues-washington-post-seeking-38-billion-
in-damages/?sh=36418bb575e0 [https://perma.cc/DJ8Q-KDGJ].
2024] NEW YORK TIMES v. SULLIVAN AT 60 1047
have been prompted by some or all of three factors: rst, his anger at
his loss of the several defamation suits he had led dating back to 1984;
second, his anger at the press for its critical reporting of him and his
administration; and nally, his desire to discredit the media among his
supporters. Since 2020, he also may have come to realize that abolishing
the actual malice standard of Sullivan, returning to a negligence stan-
dard, would make it much easier for those who have led defamation
lawsuits against him, his supporters, and news organizations, such as Fox
News and Newsmax, that support his claim that the 2020 election was
rigged and stolen to win their cases.
2. Governor Ron DeSantis and “Media Defamation”
Just as Donald Trump began his 2016 campaign for president by
attacking the media and libel laws, Florida Governor Ron DeSantis
began his campaign for the 2024 Republican presidential nomination
by criticizing the media in general and the New York Times v. Sullivan
decision in particular. In early February 2023, DeSantis sponsored a
round-table discussion in the Florida capital with people he said were
victims of “media defamation”
308
and experts who had fought to hold
“big media companies accountable for their actionable lies.”
309
DeSantis
stated that he wanted to make it easier for people to sue the media which
he claimed were society’s “leading purveyors of disinformation.”
310
He
accused the press of using Sullivan’s actual malice test as a shield to
intentionally “smear” politicians and said that “[t]here needs to be an
ability of people to defend themselves not through government reg-
ulation or restriction, but through being able to seek private right of
action ....”
311
DeSantis’s attack on the Sullivan decision was signicant because it
occurred only nine months after the Supreme Court’s June 2022 deci-
sion in Dobbs v. Jackson Women’s Health Organization.
312
In his concur-
ring opinion in that case, Justice Clarence Thomas signaled a willingness
308. News Release, Governor Ron DeSantis, Governor Ron DeSantis Hosts Roundtable Dis-
cussion on Legacy Media Defamation Practices (Feb. 7, 2023), https://www.gov.com/2023/02/07/
governor-ron-desantis-hosts-roundtable-discussion-on-legacy-media-defamation-practices/
[https://perma.cc/WRH7-34KQ].
309. Douglas Soule, DeSantis Wants to Make it Easier to Sue Media. Free Speech Advocates Say
that’s ‘Dangerous,’ Tallahassee Democrat (Feb. 7, 2023, 7:16 PM), https://www.tallahassee.com/
story/news/politics/2023/02/07/orida-gov-desantis-says-he-wants-to-make-it-easier-to-sue-the-
media/69880321007/ [https://perma.cc/APN3-547G].
310. Id.
311. Id.
312. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).
1048 DEPAUL LAW REVIEW [Vol. 73:995
by the Court to reconsider other long-time precedents.
313
However,
just three days after deciding Dobbs, the Court declined to reconsider
Sullivan when it denied a petition for a writ of certiorari in a defama-
tion case, Coral Ridge Ministries Media v. Southern Poverty Law Cen-
ter.
314
Justice Clarence Thomas was the only Justice to dissent from the
denial of cert. With the Supreme Court unwilling to accept a case chal-
lenging Sullivan, DeSantis decided to try to enact state legislation that
would create a direct challenge to the decision, trigger a reexamination
of it, and perhaps force the Supreme Court to overturn that decision.
3. Florida Legislature: A New Approach to Defamation
Two weeks after DeSantis’s round-table discussion, Representative
Alex Andrade, a Republican member of the Florida State Legislature,
introduced a bill in the Florida House that would make substantial
changes in the state’s defamation law and specically provided that a
public gure did not have to show actual malice to recover in a def-
amation case if the allegation did not relate to their public status.
315
Although a similar bill was introduced in the Florida Senate (S.B.
1220) at the same time the House bill was introduced, the House bill
(H.B. 991) received the most attention and is the focus of this analysis.
316
Although the House and Senate bills were pulled by their sponsors in
late April 2023, they would have made major changes in seven areas of
defamation law. First, H.B. 991 provided that the “journalist’s privilege”
did not apply to defamation claims when the defendant was a “profes-
sional journalist or media entity.”
317
The journalist’s privilege provides
that a journalist is not required to turn over information they have
obtained as part of their active newsgathering to courts or law enforce-
ment without a sufcient reason.
318
The effect of this provision is that, in a
defamation action, a journalist could be forced to testify about informa-
tion they had obtained when gathering the news, including the identity
of their sources. Second, the House bill expanded the venue options for
313. Id. at 333, 2301–02 (Thomas, J., concurring).
314. Coral Ridge Ministries Media, Inc., v. S. Poverty L. Ctr., 142 S. Ct. 2453, 2454 (2022).
315. Kirby Wilson, Those Accused of Discrimination Would Have New Protections Under Florida
bill, Tampa Bay Times (Feb. 23, 2023), https://www.tampabay.com/news/orida-politics/2023/02/23/
defamation-andrade-sexuality-race-gender-desantis-libel/ [https://perma.cc/N9XV-S6H7].
316. Angela Yang, New Florida Bill Aims to Limits Legal Protections for News Media, NBC
News (Feb. 28, 2023, 8:40 AM), https://www.nbcnews.com/news/new-orida-bill-aims-limit-legal-
protections-news-media-rcna71957 [https://perma.cc/5GYQ-P6EP].
317. Defamation, False Light, and Unauthorized Publication of Name or Likeness, Fla. HB 991,
§ 1 (2023).
318. Reporters Committee for Freedom of the Press, Introduction to the Reporter’s Privi-
lege Compendium (2021), https://www.rcfp.org/introduction-to-the-reporters-privilege-compen-
dium/ [https://perma.cc/YZ3D-4ZJZ].
2024] NEW YORK TIMES v. SULLIVAN AT 60 1049
a plaintiff in a defamation suit by providing that, when a suit was based
on material published on radio or television, venue for a lawsuit was
proper in any county in Florida where the material was accessed. If the
claim was based of material published on the internet, venue was proper
in any county in the state. This proposed change was intended to reect
the wide reach of broadcasts and the internet.
Third, the bill provided that Florida’s offer of judgment statute would
not apply to defamation claims. This meant that the fee-shifting provi-
sions of Florida law did not apply to defamation cases and that a pre-
vailing plaintiff was entitled to an award of their reasonable costs and
attorney fees.
319
Fourth, the proposed bill placed limits on the judicial
determination of who is a public gure by stating that a person could not
be considered a public gure for purposes of defamation if their noto-
riety arose solely from: (1) defending themselves against an accusation;
(2) granting an interview on a specic topic; (3) public employment
other than an elected ofce or an appointment by an elected ofcial; or
(4) a video, image or statement uploaded on the internet which reached
a broad audience.
320
Since these persons were not considered public g-
ures, they did not have to prove actual malice in a defamation case and
could recover by showing negligence.
The fth proposed change in defamation law was the lengthiest in
the bill. The provision set out three situations in which the fact nder
must infer that a statement was made with actual malice for purposes
of defamation. This provision moved actual malice from a subjective
inquiry to an objective one, which could be inferred when:
• The defamatory allegation is fabricated by the defendant, is the
product of his or her imagination, or is based wholly on an un-
veried anonymous report;
• An allegation is so inherently implausible that only a reckless
person would have put it into circulation; or
• There are obvious reasons to doubt the veracity of the defama-
tory allegation or the accuracy of an informant’s reports.
• The defendant willfully failed to validate, corroborate, or other-
wise verify the defamatory allegation.
321
The bill went on to state that “[t]here are obvious reasons to doubt
the veracity of a report when: (1) There is sufcient contrary evidence
that was known to or should have been known to the defendant after a
reasonable investigation; or (2) The report is inherently improbable or
implausible on its face ....”
322
319. Defamation, False Light, and Unauthorized Publication of Name or Likeness, Fla. HB 991,
§ 4 (2023).
320. Id. § 5.
321. Id. § 6(1).
322. Id.
1050 DEPAUL LAW REVIEW [Vol. 73:995
The bill also stated that an allegation that the plaintiff had discrimi-
nated against another person or group because of their race, sex, sexual
orientation, or gender identity constituted defamation per se.
323
Thus, if
the accusation was false, it automatically was defamation. The bill also
would have restricted the ability of a person to prove the truth of the
claim.
• A defendant cannot prove the truth of an allegation of discrimi-
nation with respect to sexual orientation or gender identity by
citing a plaintiff’s constitutionally protected religious expression
or beliefs.
• A defendant cannot prove the truth of an allegation of discrimi-
nation with respect to sexual orientation or gender identity by
citing a plaintiff’s scientic beliefs.
• A prevailing plaintiff for allegations under this subsection is, in
addition to all other damages, entitled to statutory damages of at
least $35,000.
324
The sixth proposed change in the bill made a journalist’s use of anon-
ymous sources much more difcult by providing that a statement by an
anonymous source was presumed to be false in defamation proceed-
ings.
325
If the defendant refused to reveal the anonymous source, “the
plaintiff need only prove that the defendant acted negligently in mak-
ing the defamatory statement.”
326
Thus, the actual malice standard did
not apply in such cases.
The seventh proposed change made by the bill confronted Sullivan
directly by stating that a public gure did not have to show actual malice
to prevail in a defamation suit if the alleged defamatory statement did
not relate to the reason for their public status.
327
Finally, the bill elimi-
nated the prevailing party attorney fee awards in suits led in violation
of Florida’s anti-SLAPP law, which were a means of protecting pub-
lishers from expensive and frivolous lawsuits. The bill also would have
eliminated the ability of the winning party to recover attorney’s fees
awards in connection with a claim that a lawsuit was led in violation
of the anti-SLAPP laws. Instead, the bill provided that the court must
award the non-moving party (i.e., the plaintiff) the reasonable attorney
fees and costs they incurred if they prevailed on a motion such as one to
dismiss or for summary judgment led by the defendant under the anti-
SLAPP laws. However, where the moving party (i.e., the defendant)
323. Id. § 6(2).
324. Id.
325. Defamation, False Light, and Unauthorized Publication of Name or Likeness, Fla. HB 991,
§ 7(1) (2023).
326. Id. § 7(2).
327. Id. § 8.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1051
prevailed on such a motion, they would not be entitled to an award of
their reasonable attorney fees and costs.
328
The Florida House and Senate bills were referred to their appro-
priate committees for consideration. On April 20, 2023, however, the
Florida House and Senate pulled both bills. The reason given by legisla-
tors was that the House and Senate were too far apart in their negotia-
tions for any immediate compromise and, with the annual legislative
session coming to an end, it was necessary to focus on the budget and
other bills.
329
A more likely explanation is that the bills were withdrawn
because they drew opposition from all sides of the political spectrum:
the liberal media, free speech advocates, the Florida Press Association,
Christian broadcasters, and business groups who feared that the leg-
islation, if enacted, would result in costly litigation against all media
outlets.
330
One owner of a media outlet in Florida sent an email to state
legislators telling them to “KILL” H.B. 991.
331
All the media owners
in Florida were familiar with the defamation lawsuits led by Donald
Trump against the New York Times, the Washington Post, and CNN,
as well as the numerous defamation suits led by Dominion Voting
Machines and Smartmatic against Fox News, Newsmax, and election
result deniers resulting from the 2020 presidential election. Although
Dominion Voting Machines settled its defamation lawsuit against Fox
News for $787.5 million before the Florida bills were withdrawn, numer-
ous other suits against Fox News and Smartmatic still were (and still
are) pending. According to one commentator, the Florida bills repre-
sented an “existential threat” to the media of all political persuasions.
332
One sign that withdrawing the bills has not ended the legislative debate
over the future of Sullivan, at least in Florida, is that Representative
Andrade has stated that he intends to le a revised version of his House
bill when the Florida legislature reconvenes in 2024.
333
328. Id. § 11.
329. Defamation Law Overhaul Despised on the Left and Right Dies in Dwindling Days of Ses-
sion, Fla. Politics (Apr. 21, 2023), https://oridapolitics.com/archives/605348-controversial-defa-
mation-bill-now-dead-in-house-and-senate/ [https://perma.cc/48TB-WRSL].
330. Ken Bensinger, Right-Wing Media Splits From DeSantis on Press Protections, N.Y. Times
(Apr. 3, 2023), https://www.nytimes.com/2023/04/03/us/politics/desantis-defamation-libel-laws-or-
ida.html#:~:text=Ron%20DeSantis%20has%20long%20courted,have%20helped%20propel%20
his%20rise.
331. Id.
332. Margie Menzel, Florida’s Defamation Bill Failed Due to Opposition from Media of All
Political Persuasions, WFSU Pub. Media (May 9, 2023, 8:35PM), https://news.wfsu.org/state-
news/2023-05-09/oridas-defamation-bill-failed-due-to-opposition-from-media-of-all-political-
persuasions [https://perma.cc/F72M-SSSK].
333. Ken Bensinger, In Blow to DeSantis, Florida Bills to Limit Press Protections Are Shelved,
N.Y. Times (May 3, 2023), https://www.nytimes.com/2023/05/03/us/politics/desantis-orida-defama-
tion-bills.html.
1052 DEPAUL LAW REVIEW [Vol. 73:995
B. Judicial Challenges
1. Early Critics of Sullivan
The Supreme Court’s decision in New York Times v. Sullivan was
unanimous. Yet, in the following decades, Justice Byron White and Chief
Justice Warren Burger expressed some degree of dissatisfaction with
the actual malice test. It was not until 2007 that the rst Justice, Antonin
Scalia, expressed support for reversing Sullivan. However, he did not do
so in the context of a judicial opinion, nor did he indicate whether he
favored returning to the common law rules or adopting some modied
version of the common law.
334
In addition, while she was a Professor at
Harvard Law School in the early 1990s, Elena Kagan expressed concern
in a law review article about what she called the “questionable exten-
sions” of the actual malice test to public gures and to cases which had
little connection with the factual situation in Sullivan.
335
She suggested
focusing on the underpinning of the decision, limiting the actual malice
standard to speech on matters of public importance or cases involving
powerful individuals.
336
It would be a mistake to give too much emphasis to Justice Kagan’s
comments about Sullivan since they were made in a law journal article,
more than thirty years ago, and before she became a Supreme Court
Justice. A guide to her current views of Sullivan and the actual malice
standard can be found in three cases since 2019 in which, as a Supreme
Court Justice, she voted with the majority to deny a writ of certiorari
where the future of Sullivan could have been an issue.
337
In a fourth
case, Counterman v. Colorado,
338
decided in June 2023, the Court con-
sidered the mental state required to establish criminal liability for “true
threats” of violence, a category of speech that the First Amendment
does not protect. The case arose from the criminal conviction of Count-
erman, who had sent hundreds of Facebook messages (many of them
threatening) to a woman who was a singer and musician. Counterman
was convicted under a Colorado statute making it unlawful to “[r]
epeatedly ... make[] any form of communication with another person”
334. Dahlia Lithwick, Target Practice, Slate (July 17, 2007, 2:42 PM), https://slate.com/news-and-
politics/2007/07/justice-scalia-sets-his-sights-on-new-york-times-co-v-sullivan.html [https://perma.
cc/RR7J-XVLN] (“In an interview, Justice Antonin Scalia told me that given the chance, he would
probably vote to reverse New York Times v. Sullivan.”).
335. Elena Kagan, A Libel Story: Sullivan Then and Now, 18 Law & Soc. Inquiry 197, 209
(1993) (reviewing Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment
(1991)).
336. Id. at 212–15.
337. See McKee v. Cosby, 139 S. Ct. 675 (2019); Berisha v. Lawson, 141 S. Ct. 2424 (2021); Coral
Ridge Media Ministries v. S. Poverty L. Ctr., 142 S. Ct. 2453 (2022).
338. Counterman v. Colorado, 600 U.S. 66 (2023).
2024] NEW YORK TIMES v. SULLIVAN AT 60 1053
in “a manner that would cause a reasonable person to suffer serious
emotional distress and does cause that person ... to suffer serious emo-
tional distress.”
339
Counterman argued that the messages were not “true
threats” and could not be the basis of a criminal prosecution.
340
Ulti-
mately, the trial judge rejected that argument using an objective stan-
dard and found that the statements “rose to the level of a true threat.”
341
The judge sent the case to the jury which found Counterman guilty.
342
On appeal Counterman argued that the First Amendment required
the prosecution to show not only that his statements were objectively
threatening but that he was aware of their threatening character.
343
The
Colorado Court of Appeals upheld his conviction on appeal and the
state Supreme Court denied review.
344
In vacating the conviction and remanding the case, Justice Kagan,
writing for the Court, held that the First Amendment requires a mental
state of recklessness for true-threats prosecutions, and that the govern-
ment “must show that the defendant consciously disregarded a sub-
stantial risk that his communications would be viewed as threatening
violence.”
345
Although the facts in Counterman did not involve defama-
tion, Justice Kagan turned toSullivan and to the actual malice standard
to show how that decision protects speech by requiring that, in a defama-
tion case, a public gure must act with “knowledge that [the statement]
was false or with reckless disregard of whether it was false or not.”
346
Justice Kagan extended a similar subjective recklessness standard to
true threat cases. She did so even though “the protected speech near
the borderline of true threats ... is, if anything, further from the First
Amendment’s central concerns than the chilled speech inSullivan-type
cases (i.e., truthful reputation-damaging statements about public of-
cials and gures).”
347
Chief Justice John Roberts and Associate Justices
Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson joined Jus-
tice Kagan’s opinion of the Court. In her concurring opinion in Count-
erman, Justice Sonia Sotomayor viewed the case as one of stalking
involving threatening speech and thus did not require resort to the true-
threats exception to the First Amendment.
348
However, because Justice
Kagan “relie[d] heavily” on Sullivan and the actual malice standard,
339. Id. at 70.
340. Id. at 66.
341. Id. at 71.
342. Id.
343. Id.
344. Counterman, 600 U.S. at 71.
345. Id. at 69.
346. Id. at 66.
347. Id. at 81.
348. Id. at 84–85 (Sotomayer, J., concurring).
1054 DEPAUL LAW REVIEW [Vol. 73:995
Justice Sotomayor discussed the decision favorably and endorsed its
use in true-threats cases.
349
While Justice Neil Gorsuch concurred in
parts of Justice Sotomayor’s concurring opinion, he did not concur in
the part of her opinion discussing and approving Sullivan.
350
2. Justice Clarence Thomas and Originalism
The Supreme Court Justice who has been the most vocal in his oppo-
sition to the Sullivan decision is Justice Clarence Thomas. Beginning
with his concurring opinion in the Court’s denial of a writ of certio-
rari in McKee v. Cosby
351
in 2019, he has echoed Justice Antonin Sca-
lia’s view that Sullivan is not consistent with the First and Fourteenth
Amendments when they were drafted and ratied. Justice Thomas
agreed with the majority in denying a writ of certiorari to Kathrine
McKee, who had accused Bill Cosby of sexual assault forty years ear-
lier. McKee argued that Cosby’s attorney responded for him by writing
and leaking a defamatory letter. According to McKee, the letter deliber-
ately distorted her personal background to “damage her reputation for
truthfulness and honesty, and further to embarrass, harass, humiliate,
intimidate, and shame” her. She alleged that excerpts of the letter were
sent via the internet and published by news outlets around the world.
352
Applying Sullivan, the U.S. Court of Appeals for the First Circuit con-
cluded that, by disclosing her accusation of sexual assault to a news-
paper reporter, McKee had “‘thrust’ herself to the ‘forefront’ of the
public controversy over ‘sexual assault allegations implicating Cosby’”
and thus was a “limited purpose public gure.”
353
However, she could
not prove, as required by Sullivan, that the lawyer had knowingly or
recklessly said something false.
354
McKee asked the Supreme Court to
review the appeals court’s determination that she was a public gure.
355
In his fourteen-page concurring opinion, Justice Thomas began by
stating that he agreed with the Court’s decision not to take up the
“factbound question” of whether McKee was a limited-purpose public
gure. However, he then said that he was writing a concurring opin-
ion “to explain why, in an appropriate case, we should reconsider the
precedents that require courts to ask it [i.e., whether she was a limited
349. Id. at 101 (Sotomayer, J., concurring).
350. Counterman, 600 U.S. at 66 (Syllabus at 3).
351. McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring).
352. Id. at 675.
353. Id.
354. Id.
355. Id.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1055
purpose public gure] in the rst place.”
356
Justice Thomas called Sul-
livan and the Court’s decisions extending it to public gures, “policy-
driven decisions masquerading as constitutional law” and said that,
instead of “reexively apply[ing] this policy-driven approach to the
Constitution.... we should carefully examine the original meaning of
the First and Fourteenth Amendments. If the Constitution does not
require public gures to satisfy an actual-malice standard in state-law
defamation suits, then neither should we.”
357
Justice Thomas then exam-
ined the background and decision in Sullivan and subsequent decisions,
nding that: “None of these decisions made a sustained effort to ground
their holdings in the Constitution’s original meaning.”
358
After apply-
ing his originalist approach to the historical basis of common law libel
and seditious libel at the time of the adoption of the First and Four-
teenth Amendments,
359
he concluded that it was the intent of the fram-
ers, and their understanding of the meaning of the First and Fourteenth
Amendments, that should control.
[T]here appears to be little historical evidence suggesting that the
New York Times actual-malice rule ows from the original under-
standing of the First or Fourteenth Amendment.... We did not be-
gin meddling in this area until 1964, nearly 175 years after the First
Amendment was ratied. The States are perfectly capable of striking
an acceptable balance between encouraging robust public discourse
and providing a meaningful remedy for reputational harm. We should
reconsider our jurisprudence in this area.
360
Two years after McKee, the Supreme Court again was asked to recon-
sider whether the actual malice requirement of Sullivan applied to a
“public gure.” In Berisha v. Lawson,
361
Shkëlzen Berisha sued Guy
Lawson who had written a book entitled, War Dogs: The True Story
of How Three Stoners from Miami Beach Became the Most Unlikely
Gunrunners in History.
362
Berisha alleged that portions of the book
defamed him by incorrectly identifying him as an arms dealer and a
“key gure” in the “Albanian maa” and that Lawson “recklessly relied
on imsy sources to contend that he was.”
363
Because the U.S. District
Court for the Southern District of Florida found that the Berisha was a
public gure, it granted the Lawson summary judgment because of the
356. Id. at 676.
357. McKee, 139 S. Ct. at 676.
358. Id. at 678.
359. Id. at 682.
360. Id. at 682.
361. Berisha v. Lawson, 141 S. Ct. 2424 (2021).
362. Guy Lawson, War Dogs: The True Story of How Three Stoners from Miami Beach Be-
came the Most Unlikely Gunrunners in History (2015).
363. Berisha v. Lawson, 141 S. Ct. 2424, 2424 (2021) (Thomas, J., dissenting).
1056 DEPAUL LAW REVIEW [Vol. 73:995
lack of evidence that Lawson had acted with actual malice.
364
The Elev-
enth Circuit afrmed, and Berisha asked the Supreme Court to recon-
sider the actual malice requirement as it applied to public gures.
365
However, the Supreme Court again denied the writ of certiorari.
In Berisha both Justice Thomas and Justice Neil Gorsuch dissented
from the denial of the writ. In his three-page dissent, Justice Thomas
again took an originalist approach and said that the actual malice
requirement “bears no relation to the text, history, or structure of the
Constitution”
366
and that, in fact, the opposite rule historically applies:
“[T]he common law deemed libels against public gures to be ... more
serious and injurious than ordinary libels.”
367
For Justice Thomas, the
“lack of historical support for this Court’s actual-malice requirement
is reason enough to take a second look at the Court’s doctrine.”
368
He
also felt that reconsideration of Sullivan was even more required by
what he called the “real-world effects” of conspiracy theories and other
disinformation, such as the Pizzagate conspiracy theory that resulted in
a shooting at the pizza shop that was said to be the home for a Satanic
child abuse ring involving top Democrats and Hillary Clinton.
369
“The
proliferation of falsehoods is, and always has been, a serious matter.
Instead of continuing to insulate those who perpetrate lies from tradi-
tional remedies like libel suits, we should give them only the protection
the First Amendment requires.”
370
In late June 2022, the Supreme Court denied a writ of certiorari to
revisit Sullivan for a third time in three years. As was becoming the
norm in such cases, Justice Thomas dissented. In Coral Ridge Ministries
Media v. Southern Poverty Law Center,
371
the plaintiff was a Christian
non-prot ministry dedicated to spreading “a biblically informed view
of the world, using all available media.”
372
In 2017 Coral Ridge applied
to receive donations through AmazonSmile, a program that permits
Amazon customers to contribute to approved nonprots. However,
Coral Ridge learned that it was ineligible for the program due to the
Southern Poverty Law Center (SPLC) designating Coral Ridge an “[a]
nti-LGBT hate group” because of its views concerning human sexuality
364. Id.
365. Id.
366. Id. at 2425 (quoting Tah v. Global Witness Publishing, Inc., 991 F.3d 231, 251 (C.A. D.C.
2021) (Silberman, J., dissenting)).
367. Id. (quoting McKee v. Cosby, 139 S. Ct. 675, 679 (2019) (opinion of Thomas, J.)).
368. Id. at 2425.
369. Berisha, 141 S. Ct. at 2425.
370. Id.
371. Coral Ridge Ministries Media, Inc. v. S. Poverty L. Ctr., 142 S. Ct. 2453 (2022).
372. Id. at 2454 (Thomas, J., dissenting).
2024] NEW YORK TIMES v. SULLIVAN AT 60 1057
and marriage.
373
Coral Ridge sued the SPLC for defamation in federal
district court in Alabama, arguing that it “opposes homosexual conduct
based on its religious belief” and was not a hate group.
374
The district
court dismissed Coral Ridge’s complaint for failure to state a claim
because the SPLC’s “hate group” designation has a highly debatable
and ambiguous meaning” and Coral Ridge did not “plausibly allege[]
that SPLC acted with actual malice ....”
375
The Eleventh Circuit Court
of Appeals afrmed but rested its decision entirely on the actual mal-
ice standard, saying that Coral Ridge had not “sufciently alleged that
SPLC doubted or had good reason to doubt the truth of the ‘hate group’
designation.”
376
The Supreme Court, by an 8-1 vote, declined to grant the writ of
certiorari to review the defamation decision. Only Justice Thomas dis-
sented, stating that he would grant the writ “to revisit the ‘actual mal-
ice’ standard.”
377
According to Justice Thomas, the Coral Ridge case
was “one of many showing how New York Times and its progeny have
allowed media organizations and interest groups ‘to cast false asper-
sions on public gures with near impunity.’”
378
In June 2023, the Supreme Court decided Counterman v. Colorado.
379
The fact that Chief Justices Roberts, Alito, Kavanaugh, and Jackson
joined Justice Kagan’s opinion, including her support for Sullivan, indi-
cates that they either accept Sullivan and the actual malice standard or
they have not encountered a case that makes them rethink their attitude
toward the decision. Although Justice Amy Coney Barrett led a dis-
senting opinion in Counterman, she did not question the Sullivan deci-
sion. Thus, her views on Sullivan remain unclear, although she voted to
deny the writs of certiorari in Berisha and Coral Ridge Ministries Media.
The fact that Justice Gorsuch did not join in the portion of Justice Soto-
mayor’s concurring opinion in Counterman supporting Sullivan, indi-
cates that he still has the reservations he expressed towards the decision
in Berisha.
Finally, Justice Thomas wrote a brief two-page dissent in Counter-
man, rejecting what he called “the majority’s surprising and misplaced
reliance on New York Times Co. v. Sullivan.”
380
He concluded his dis-
sent by stating: “It is thus unfortunate that the majority chooses not
373. Id.
374. Id.
375. Id.
376. Id.
377. Coral Ridge Ministries, 142 S. Ct. at 2455.
378. Id.
379. Counterman v. Colorado, 600 U.S. 66 (2023).
380. Id. at 105 (Opinion of Thomas, J., dissenting).
1058 DEPAUL LAW REVIEW [Vol. 73:995
only to prominently and uncritically invoke New York Times, but also
to extend its awed, policy-driven First Amendment analysis to true
threats, a separate area of this Court’s jurisprudence.”
381
In his ve dissents and concurring opinions advocating that the
Supreme Court “reconsider,” and possibly reverse, New York Times
v. Sullivan, Justice Thomas argued that the actual malice test has no
basis in the Constitution.
382
He labeled Sullivan and its progeny as
“policy-driven decisions masquerading as constitutional law”
383
and
based that view on originalism, one of a number of methods of consti-
tutional interpretation.
384
Under the theory of originalism, all articles
and amendments to the Constitution must be interpreted according to
their “original meaning,” which is xed at the time they were adopted.
385
For Justice Thomas, like Justice Scalia before him, the critical ques-
tion in evaluating New York Times v. Sullivan is whether the “original
meaning” of the First and Fourteenth Amendments was understood to
include an actual malice requirement for defamation actions brought
by public ofcials. Since persons in 1789 and 1868 did not understand
those amendments to include an idea of an actual malice standard, they
could not be interpreted in 1964 to include such a meaning. If people
want an actual malice standard for defamation cases, they must change
their state law or amend the Constitution.
The “originalist” approach to constitutional interpretation stands in
marked contrast to the “living constitution” theory used by the Supreme
Court and Justice William Brennan when it decided Sullivan and other
cases in the 1960s. Living constitutionalists believe that the meaning
381. Id. at 106 (Thomas, J., dissenting).
382. In the Cosby case, Justice Thomas wrote: “The constitutional libel rules adopted by this
court in New York Times and its progeny broke sharply from the common law of libel, and there
are good reasons to question whether the First and Fourteenth Amendments displaced this body
of common law.” McKee v. Cosby, 139 S. Ct. 675, 678 (2019) (Thomas, J., concurring).
383. Id. at 676.
384. For a discussion of the different approaches to constitutional interpretation, see generally
Cass R. Sunstein, How to Interpret the Constitution (2023) [hereinafter Sunstein, How to In-
terpret the Constitution]; Randy E. Barnett, Restoring the Lost constitution: The Presump-
tion of Liberty (2013); Robert W. Bennett & Lawrence B. Solum, Constitutional Originalism:
A Debate (2011).
385. For support and criticism of originalism, see generally Erwin Chemerinsky, Worse Than
Nothing: The Dangerous Fallacy of Originalism (2022); Duncan Hosie, Bad Facts, Bad Law,
N.Y. Rev. Books (Nov. 25, 2023), https://www.nybooks.com/online/2023/11/25/bad-facts-bad-law-
supreme-court-guns/ [https://perma.cc/NJ3F-2DLQ]; John O. McGinnis & Mike Rappaport,
The Finished Constitution, L. & Liberty (Sept. 28, 2023), https://lawliberty.org/book-review/the-
nished-constitution/ [https://perma.cc/C8ET-FTWM] (book review); Neil Gorsuch, Why Origi-
nalism Is the Best Approach to the Constitution, Time Mag. (Sept. 6, 2019, 8:00 AM) https://time.
com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/
[https://perma.cc/LNH2-HY8P]; Cass R. Sunstein, Originalism, 93 Notre Dame L. Rev. 1671
(2018); see generally Ilan Wurman, A Debt Against the Living: An Introduction to Original-
ism (2017).
2024] NEW YORK TIMES v. SULLIVAN AT 60 1059
of constitutional articles and amendments changes with the evolution
of social attitudes. They see part of the job of the Court as keeping the
Constitution relevant without formally amending it.
386
If, as Justice Thomas argues, the Supreme Court must follow the
“original meaning” of the Constitution in defamation cases, what is that
“original meaning”? In his concurring opinion in McKee v. Cosby, Jus-
tice Thomas set out his view of the history of defamation law in the
United States.
387
Under the common law in place at the time the First
and Fourteenth Amendments were ratied, a public gure did not need
“to satisfy any kind of heightened liability standard as a condition of
recovering damages. Typically, a defamed individual needed only to
prove “‘a false written publication that subjected him to hatred, con-
tempt, or ridicule.’”
388
Justice Thomas drew on Blackstone’s Commen-
taries as support for his view of the common law of libel and his view
that the common law considered “libels against public gures to be more
serious and injurious than ordinary libels.”
389
Far from being protected,
Blackstone considered libels against a public ofcial a criminal offense
“most dangerous to the people and deserv[ing of] punishment.”
390
Although the common law permitted a privilege to comment on pub-
lic questions and matters of public interest, that privilege applied only
“when the facts stated were true.”
391
To Justice Thomas, these common
law rules provided the backdrop for the First and Fourteenth Amend-
ments, which did not repeal the common law of libel, and were the basis
of numerous Supreme Court decisions extending from the early 1800s
until 1964.
392
Thus, according to Justice Thomas, “there appears to be
little historical evidence suggesting that the New York Times actual-
malice rule ows from the original understanding of the First of Four-
teenth Amendments.”
393
Justice Thomas’s views of the historical meaning of the First and
Fourteenth Amendments and their application to defamation law have
a number of supporters, among them Glenn Harlan Reynolds,
394
Carson
386. For support and criticism of the living constitution theory, see generally Sunstein, How
to Interpret the Constitution, supra note 384; Lawrence B. Solum, Originalism Versus Living
Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243 (2019);
see generally David A. Strauss, The Living Constitution (2010).
387. McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring).
388. Id. at 678 (citation omitted).
389. Id. at 679.
390. Id.
391. Id.
392. Id. at 682.
393. McKee, 139 S. Ct. at 682 (Thomas, J., concurring).
394. See generally Glenn Harlan Reynolds, Rethinking Libel for the Twenty-First Century, 87
Tenn. L. Rev. 465 (2020).
1060 DEPAUL LAW REVIEW [Vol. 73:995
Holloway,
395
Ed Whelan,
396
Michael L. Smith,
397
and John M. Kang.
398
These critics agree that the Sullivan decision does not comport with
the original and traditional view that libel claims raised no constitu-
tional issues because libel was not protected by the First Amendment.
399
However, they go further and make three other broad arguments: rst,
Sullivan is another example of the improper judicial activism of the
Warren Court; second, the decision undermines self-government by
permitting the press to spread defamatory falsehoods without having to
pay damages, thus harming individual rights and particularly the right
to reputation; and nally, the actual malice standard gives the press
power that is inconsistent with legal equality.
At the same time, Justice Thomas and the other supporters of origi-
nalism are not without their critics. The most prolic and historically
detailed of these critics is Matthew Schafer, who, in a series of articles,
has shown that the historical record of common law libel contains
evidence supporting the actual malice test adopted by the Supreme
Court in Sullivan.
400
Schafer points out that many of the drafters of the
Constitution disagreed with Blackstone, who has been cited frequently
by Justice Thomas in his concurring and dissenting opinions involving
Sullivan, and his view that freedom of the press consisted only of free-
dom from prior restraint.
401
This led Schafer to ask: “Blackstone hated
the Colonists and the cause of independence. He hated republican sen-
timent. He rejected the idea that sovereignty resided, rst, in the People.
Why the Supreme Court treats him as the nal arbiter of questions of
history more than 200 years later dees understanding.”
402
395. See generally Holloway, supra note 21; Carson Holloway, Sullivan and the Right to Repu-
tation, L. & Liberty (Oct. 30, 2023), https://lawliberty.org/sullivan-and-the-right-to-reputation/
[https://perma.cc/5JE7-WZTE]; Carson Holloway, Malice Toward All, Defamation for None?, L.
& Liberty (Dec. 20, 2022), https://lawliberty.org/malice-towards-all-defamation-for-none/ [https://
perma.cc/2P9D-2FVJ].
396. See generally Whelan, supra note 21.
397. See generally Michael L. Smith & Alexander S. Hiland, Using Bruen to Overturn New York
Times v. Sullivan, 49 Pepp. L. Rev. 80 (2023).
398. See generally John M. Kang, Why the Actual Malice Test Should Be Eliminated, 50 Fla. St.
L. Rev. 513 (2023).
399. See Carson Holloway, Overturn New York Times v. Sullivan, Am. Conservative (Sept. 9,
2022, 12:00 PM), https://www.theamericanconservative.com/overturn-new-york-times-v-sullivan/
[https://perma.cc/8LV9-DQU2].
400. Matthew L. Schafer, A Response to Justice Thomas, in New York Times v. Sullivan: The
Case for Reserving an Essential Precedent 9–78 (2023). See also the six essays focusing on
New York Times v. Sullivan that make up his multi-part series, Matthew Schafer, On Freedom
of Press in the United States (July 12, 2020), https://matthewschafer.medium.com/the-attack-on-
new-york-times-v-sullivan-7c80ee86332d [https://perma.cc/5HFA-C9KN].
401. Matthew Schafer, William Blackstone Is The Most Powerful Person You’ve Never Have
Heard Of, Medium (Sept. 23, 2020), https://matthewschafer.medium.com/william-blackstone-was-
not-that-great-b381d9554bac [https://perma.cc/D6HD-XGN8].
402. Id.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1061
Schafer also presents historical evidence for the actual malice rule
adopted by Sullivan and shows that the drafters of the Constitution
and the post-Civil War Congresses intended, by the First or Fourteenth
Amendments, to place limits on state libel law.
403
Finally, in a recent
article, Schafer analyzes twelve nineteenth-century U.S. treatises, and
concludes that early American commentators did not adopt Black-
stone’s views as their own.
404
Instead, they created a new understanding
of press freedom built on negotiated conicts between libel’s speech-
suppressing tendency and the need for democratic debate powered by
the press. The result was an American idea of freedom of the press that
replaced the English authorities.
3. Justice Neil Gorsuch and the Shifting Media Landscape
While Justice Neil Gorsuch made brief reference to the common law
and Backstone in his dissent in Berisha v. Lawson,
405
the main focus
was not on the doctrine of originalism but on how “our Nation’s media
landscape has shifted” since Sullivan was decided in 1964.
406
To Justice
Gorsuch, the actual malice test might have made sense then because of
the limited number of broadcasting licenses for television and radio and
domination of the press by a few large companies employing “legions of
investigative reporters, editors, and fact checkers.”
407
However, as a result
of “revolutions in technology, today virtually anyone in this country can
publish virtually anything for immediate consumption anywhere in the
world.”
408
This revolution in technology also has meant that a large num-
ber of newspapers and periodicals have gone out of business and that
television news networks have lost viewers. In their place are twenty-
four-hour cable news channels and the internet. According to Justice
Gorsuch: “What started in 1964 with a decision to tolerate the occasional
falsehood to ensure robust reporting by a comparative handful of print
and broadcast outlets has evolved into an ironclad subsidy for the publi-
cation of falsehoods by means and on a scale previously unimaginable.”
409
Justice Gorsuch raised other concerns. While in 1964, the Supreme
Court may have thought that the actual malice standard could be lim-
ited to a small number of government ofcials, today private citizens
403. See Schafer, In Defense, supra note 21.
404. Matthew L. Schafer, An American Freedom: The Intelligentsia and Freedom of the Press
After Blackstone, 127 Penn. St. L. Rev. 445 (2023).
405. Berisha v. Lawson, 141 S. Ct. 2424, 2426 (2021) (Gorsuch, J., dissenting).
406. Id. at 2427.
407. Id.
408. Id.
409. Id. at 2428.
1062 DEPAUL LAW REVIEW [Vol. 73:995
can become public gures on social medial overnight and courts have
extended the situations in which a person can become a limited public
gure.
410
To Justice Gorsuch, it is unclear how well these modern devel-
opments serve Sullivan’s original purposes. He admitted in his dissent
that he did not have “any sure answers” as to whether Sullivan still pro-
moted the goals of 1964 and said he was not even sure of all the questions
that should be asked.
411
But, unlike Justice Thomas, Justice Gorsuch did
not call explicitly for the reversal of Sullivan. Instead, he asked that the
Court reconsider the decision, saying that “the Court would prot from
returning its attention, whether in this case or another, to a eld so vital
to the ‘safe deposit’ of our liberties.”
412
4. Shrinking Local Newspapers and the Continuing Impact of the
“Actual Malice” Standard
In deciding whether Sullivan still promotes the goals of 1964, it also
is necessary to examine the shrinking number of local newspapers and
its impact on the actual malice standard. The Sullivan case arose at a
time when libel suits were being used in an attempt to silence Northern
newspaper coverage of the growing civil rights movement in 1960’s in
the South. Many authors have acknowledged this litigation strategy.
413
In her book, Actual Malice, Professor Samantha Barbas declared:
The fate of the New York Times, the nation’s press, and the civil rights
movement hung in the balance. * * * Sullivan’s lawsuit was one of a
string of lawsuits brought by Southern segregationist ofcials against
Northern media outlets in a massive regional vendetta intended to
intimidate them and prevent them from reporting on the civil rights
movement.
414
Another analyst of the media, the Southern civil rights movement in
the 1960s, and related litigation has declared:
Libel law was fast becoming a political cudgel to intimidate the press
and stop the reporting of racial upheaval of the day. * * * Without the
U.S. Supreme Court’s landmark decision in New York Times ... in
1964, media coverage of the civil rights struggle ... would have been
sharply curtailed if not squelched altogether.
415
As noted above, some commentators and judges have questioned
the need or validity of the actual malice standard in a changed print
410. Id. at 2429.
411. Berisha, 141 S. Ct. at 2430.
412. Id.
413. Barbas, supra note 1, at 1.
414. Id. at 1–2.
415. Edmondson, supra note 2, at 1–2.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1063
media environment.
416
However, one cannot ignore the present plight
and even extinction of many local newspapers or the negative impact
on society of a local “news deserts.”
417
While addressing the actual malice standard in 2021, Justice Gorsuch
acknowledged what many media experts and reports have stated: the
new media environment “also facilitates the spread of disinformation.”
418
So, many may question the impact of depriving the print media of defa-
mation protection if negative results actually ow from the elimination
of local newspapers. Indeed, many articles and reports authored by uni-
versities and research institutions reect the devastating effects of hav-
ing communities lose their local newspapers. The 2022 Report on the
State of Local News by Penny Abernathy of Northwestern University
describes the hazards to communities when local news media decline or
disappear altogether.
419
The Report declares:
This is a nation increasingly divided journalistically, between those
who live and work in communities where there is an abundance of
local news and those who don’t. * * * The loss of local journalism has
been accompanied by the malignant spread of misinformation and
disinformation, political polarization, eroding trust in the media, and
a yawning digital and economic divide among citizens.”
420
Other studies and articles have reached similar conclusions. For exam-
ple, Penelope Muse Abernathy, in a 2018 report, conrmed that:
The stakes are high, not just for the communities that have lost news-
papers or are living with the threat of losing a local newspaper—but
also for the entire country. Our sense of community and our trust in
democracy at all levels suffer when journalism is lost or diminished.
In an age of fake news and divisive politics, the fate of communities
across the country—and of grassroots democracy itself—is linked to
the vitality of local journalism.
421
416. See Justice Neil Gorsuch’s dissent from the denial of certiorari in Berisha v. Lawson, 141 S.
Ct. 2424 (2021).
417. Penelope Muse Abernathy, The Expanding News Desert 6 (2018) [hereinafter Aberna-
thy, The Expanding News Desert]. There is no doubt that even small papers can reveal criminal
activity. See Sam Roberts, David Mitchell, Weekly Editor Who Exposed a Corrupt Cult, Dies at
79, N.Y. Times (Nov. 1, 2023), https://www.nytimes.com/2023/11/01/business/media/david-mitchell-
dead.html (“[S]even news articles and 13 editorials... earned [The Point Reyes Light] the Pulitzer
gold medal for public service in 1979, for its ‘Pioneering expose of this quasi-religious corporate
cult’ demonstrated the potency of local journalism and drew attention to the paper for its role in
the classic David-and-Goliath story.”).
418. Berisha, 141 S. Ct. at 2427.
419. Penny Abernathy, Nw. Univ. Medill, The State of Local News, The 2022 Report
(June 29, 2022), https://localnewsinitiative.northwestern.edu/research/state-of-local-news/
report/#executivesummary [https://perma.cc/SN28-979D].
420. Id.
421. Abernathy, The Expanding News Desert, supra note 417.
1064 DEPAUL LAW REVIEW [Vol. 73:995
Similarly, a March 2020 article in Harvard Business Review recognized
that local U.S. journalism was vanishing. The author, Victor Pickard,
detailed the impact of declining local newspapers:
Democracies need independent, fact-based journalism to provide a
voice for a diverse range of people, to watchdog the powerful, and
keep members of a society informed. * * * The demise of local news-
papers—which are still by far he main source of original reporting in
their communities—is also linked to a rise in local corruption and an
increase in polarization, as news consumers rely more on partisan-
inected national outlets for their information.
422
Finally, in his book, Cheap Speech—How Disinformation Poisons Our
Politics—And How To Cure It, UCLA law Professor Richard L. Hasen
observed:
Many traditional journalistic outlets, especially local ones, have col-
lapsed or in danger of being scaled back to irrelevance; barriers to
entry for producing slick, objective-looking false information have
fallen dramatically; the ood of false information is hitting American
voters at the same time that condence in legitimate media is falling;
and people are most likely to fall for false information when it lines
up with their preexisting ideological preferences.
423
While there is no one solution, acknowledging the rapid decline in
local media is a rst step.
424
Few, if any, articles or studies dispute the
demise of local newspapers. Cities like Youngstown, Ohio have lost
local papers that existed for 150 years. The closing of the Youngstown
Vindicator left “a community of hundreds of thousands without a daily
newspaper.”
425
As Margaret Sullivan, a former member of the Pulitzer
422. Victor Pickard, Journalism’s Market Failure Is a Crisis for Democracy, Harv. Bus. Rev.
(Mar. 12, 2020), https://hbr.org/2020/03/journalisms-market-failure-is-a-crisis-for-democracy
[https://perma.cc/F7X9-8M7B].
423. Richard L. Hasen, Cheap Speech, How Disinformation Poisons Our Politics—And
How To Cure It 38 (2022).
424. See Katerina Eva Matsa & Kirsten Worden, Local Newspapers Fact Sheet, Pew Rsch. Ctr.
(May 26, 2022), https://www.pewresearch.org/journalism/fact-sheet/local-newspapers/ [https://
perma.cc/65N5-BLR3] (“The transition to digital news consumption has hit the newspaper indus-
try hard in recent years. Some national publications have managed to weather the storm... but
many local newspapers have been forced to shutter their doors permanently... .”).
425. Jordyn Grzelewski, The Vindicator, Youngstown’s Daily Newspaper, Will Close After 150
Years, Cleveland.com (June 28, 2019, 7:24 PM), https://www.cleveland.com/news/2019/06/the-
vindicator-youngstowns-daily-newspaper-will-close-after-150-years.html [https://perma.cc/65H2-
EWY5]. Ted Diadium, If You Don’t Mourn the Passing of Newspapers, at Least Understand What
You’ll Be Missing, Cleveland.com (July 26, 2019, 5:24 AM), https://www.cleveland.com/opin-
ion/2019/07/if-you-dont-mourn-the-passing-of-newspapers-at-least-understand-what-youll-be-
missing-ted-diadiun.html [https://perma.cc/QV4C-3E8E]. Adam Gabbatt, Ohio Newspaper that
Battled Injustice for 150 Years to Shut Down: ‘Scary for Democracy’, Guardian (Aug. 21, 2019, 2:00
PM), https://www.theguardian.com/us-news/2019/aug/21/the-vindicator-ohio-newspaper-shut-
down [https://perma.cc/PZ9U-ARXL] (“The Vindicator’s closure means Youngstown will be the
largest city in the U.S. without a major paper and is the latest blow to an ailing American news
industry.”).
2024] NEW YORK TIMES v. SULLIVAN AT 60 1065
Prize Board and media critic conrmed in her 2020 book Ghosting The
News
426
stated:
The decline of local news is every bit as troubling as the spread of
disinformation on the internet.... [A]nother crisis is happening more
quietly. Some of the most trusted sources of news—local sources, par-
ticularly local newspapers—are slipping away, never to return. The
cost to democracy is great.
427
In response to Justice Gorsuch’s dissent in Berisha v. Lawson,
428
which questioned whether Sullivan and the actual malice standard still
are necessary due to changes in the media environment, two authors
responded “yes” because the “premises of that question ... are incor-
rect, on both the facts and law.”
429
The authors, Richard Tofel and Jer-
emy Kutner responded:
There is ... one segment of the body politic that will suffer greatly
if Sullivan were to be overruled. And it is the same target that was
under assault back when the case was decided: responsible journal-
ists. Back then, it was the New York Times that was chief among the
coordinated attacks to deter critical reporting. Such political attacks
against critical reporting were, and remain, the motivating animus be-
hind calls to “loosen the libel laws” whether such calls come from
former presidents or members of the judiciary.
430
Based on recent reporting, the defamation actions that can imperil local
(or any) newspaper are not decreasing.
431
Some philanthropic groups
are aware of the continuing loss of local news media and stepped in
to give needed aid.
432
However, this aid is to keep the news outlets in
426. Margaret Sullivan, Ghosting The News: Local Journalism and the Crisis of American
Democracy (2020).
427. Id. at 15.
428. Berisha v. Lawson, 141 S. Ct. 2424 (2021).
429. Richard Tofel & Jeremy Kutner, A Response to Justice Gorsuch, in New York Times v.
Sullivan: The Case for Preserving an Essential Precedent (2022).
430. Id.
431. Curriden, supra note 32, at 36–38.
432. Katie Robertson, Philanthropies Pledge $500 Million to Address Crisis in Local
News,N.Y. Times (Sept. 7, 2023), https://www.nytimes.com/2023/09/07/business/media/macarthur-
foundation-grants-to-local-news.html#:~:text=On%20Thursday%2C%20more%20than%20
20,the%20crisis%20in%20local%20news [hereinafter Roberston, Philanthropies Pledge $500
Million to Address Crisis in Local News]. A recent article acknowledged that many local papers
are “going extinct” and the negative impact. See Serge Schmemann, A Powerful Tool for Fight-
ing Corruption Is Going Extinct, N.Y. Times (Nov. 26, 2023), https://www.nytimes.com/2023/11/26/
opinion/local-newspapers-democracy-journalism.html. Mr. Schmemann noted “[l]ooking back at
those [small daily or weekly] papers isn’t just the nostalgia of an old newspaperman. They were the
building blocks of community, democracy, politics. Their loss is a major reason behind the acute
polarization and political confusion we are suffering today.” Mr. Schmemann did recognize that
there were some areas of hope where nonprots are working to “restore local coverage.” A new
book, Ellen Clegg & Dan Kennedy, What Works in Community News: Media Startups, News
Deserts, and the Future of the Fourth Estate (2024), offers more information on the perils of
1066 DEPAUL LAW REVIEW [Vol. 73:995
business, after “some 2500 newspapers have shut down since 2005—
and more continue to close,”
433
not to make papers immune from the
growing number and expense of libel suits.
III. Can Defamation Proceedings Be Improved Without Doing
Away With the Actual Malice Standard?
As discussed in Part I, some have suggested doing away with the
actual malice standard, but we feel that’s like throwing the baby out
with the bath water.
434
That said, some steps can be taken to improve
the present state of defamation litigation without changing the Sullivan
test.
The cases discussed in this Article have demonstrated many dis-
putes involving false, baseless statements eventually reach the correct
result or settle, but they clearly could be resolved more quickly with
less related expenses. One way to effectively combat false information
in a defamation action and decrease the staggering expense and attor-
neys’ fees is to require rapid disclosure of supporting information and
to determine if the statements are colorable through motion practice. A
signicant number of states and the District of Columbia have enacted
what are known as anti-SLAPP laws.
435
While the provisions of the laws
differ signicantly, the central purpose of the various statutes remains
the same. As the Institute for Free Speech recognizes:
Anti-SLAPP statutes are intended to provide a legal defense for
those who have been targeted by litigation solely because they have
said or written something that a plaintiff does not like ... Importantly,
however, anti-SLAPP statutes generally have a procedural aspect that
many conventional defenses lack—an opportunity for the defendant
to le a motion that forces judicial consideration of certain issues at
an early stage of the litigation (known as an anti-SLAPP motion).
436
local media and the creation of new models to preserve news coverage. Yet, both the existing local
media and new start-ups will be subject to expanding defamation actions and its costs.
433. Roberston, Philanthropies Pledge $500 Million to Address Crisis in Local News, supra
note 432.
434. See Doris DelTosto Brogan, Lies, Damn Lies, and Kamikaze Lies: Protecting Falsehoods
in the Name of Truth, 54 Loy. U. Chi. L.J. 225, 260–67 (2022); Schafer, In Defense, supra note 21,
at 82–84, 157–60; and Hasen, supra note 423, at 115–17.
435. See Dan Greenberg & David Keating, Anti-SLAPP Statutes: A Report Card, Inst. for
Free Speech (Feb. 28, 2022), https://www.ifs.org/wp-content/uploads/2023/10/2023-Anti-SLAPP-
Report-Card.pdf.
436. Id. “Thirty-three states and the District of Columbia have passed laws to help defendants
dispose of such claims relatively quickly. These are called anti-SLAPP laws based on the notion
that people should not be burdened with meritless lawsuits for exercising their First Amendment
rights.” Dennis Hetzel & Brandi Snow, SLAPP Suits, Free Speech Ctr. at Middle Tenn. State
Univ. (Jan. 19, 2024), https://rstamendment.mtsu.edu/article/slapp-suits/#:-:text=Thirty-three-
states-and-the-exercising-their-First-Amendment-rights [https://perma.cc/H5Y4-N6ZA].
2024] NEW YORK TIMES v. SULLIVAN AT 60 1067
While the various anti-SLAPP statutes do vary markedly, their provi-
sions illustrate some of the type that can protect parties from actions
designed to silence speech or retaliate against those involved.
437
Both
the Palin v. New York Times
438
and the Carroll v. Donald Trump
439
cases
involved questions concerning New York’s latest iteration of its anti-
SLAPP law.
A. The New York Anti-SLAPP Law
In November 2020, New York expanded its anti-SLAPP law, which
was originally adopted in 1992.
440
The law covers defendants in legal
actions “involving public petition and participation.”
441
The prior law
limited this term to only cases brought by plaintiffs seeking public per-
mits, zoning changes, or other entitlements from a government entity.
The 2020 amendments expanded this coverage to cases involving “any
communication in a place open to the public or a public forum in con-
nection with an issue of public interest” or “any other lawful conduct in
furtherance of the exercise of the constitutional right of free speech in
connection with an issue of public interest ....”
442
The revised law also requires that courts “broadly” construe the
term “public interest” to “mean any subject other than a purely private
matter.”
443
The revised law is framed to make it easier for a defendant
to obtain dismissal of a SLAPP suit. A defendant is only required to le
a motion to dismiss, illustrating that the legal action involves “public
petition and participation,” and then the burden shifts to the plaintiff
to show that the lawsuit “has a substantial basis in law or is supported
by a substantial argument for an extension, modication or reversal of
existing law.”
444
If the plaintiff does meet this burden, the court must
dismiss the case.
Based on the amended law, courts ruling on anti-SLAPP motions
will consider the pleadings (that is the plaintiff’s complaint and defen-
dant’s answer) plus “supporting and opposing afdavits stating the facts
upon which the action or defense is based.”
445
The revised law permits
437. For a detailed description of anti-SLAPP statutes, see Brogan, supra note 434, at 274–77.
438. See Palin v. New York Times Co., 510 F. Supp. 3d 21, 24–29 (S.D.N.Y. 2020).
439. See Carroll v. Donald Trump, 590 F. Supp. 3d 575, 580–81 (S.D.N.Y. 2022).
440. N.Y. Civ. Rts. § 70-a (McKinney 2023). The Reporters Committee For Freedom of the Press
provides a detailed summary of the New York Law. New York, Rep’s Comm. for Freedom of the
Press, https://www.rcfp.org/anti-slapp-guide/new-york/ [https://perma.cc/WFS7-59XD].
441. N.Y. Civ. Rts. § 70-a (McKinney 2023).
442. Id. § 76-a(1)(a)(1)–(2).
443. Id. §76-a(1)(d).
444. N.Y. C.P.L.R. § 3211(g)(1) (McKinney 2024).
445. Id. § 3211(g)(2).
1068 DEPAUL LAW REVIEW [Vol. 73:995
the defendant to submit evidence early in the case—before expensive
discovery takes place.
The 2020 amendment also mandates the court to stay “all discovery,
pending hearings, and motions” from the time an anti-SLAPP motion
is led until the court rules on that motion.
446
But the law does allow
courts to permit some discovery, “limited to the issues raised in the
motion to dismiss,” if the plaintiffs demonstrate specic reasons why
they cannot otherwise provide facts “essential” to their opposition to
the anti-SLAPP motion.
447
The revised anti-SLAPP law requires that
plaintiffs may not recover damages in libel cases involving “public peti-
tion and participation” unless they show “by clear and convincing evi-
dence” that the defendant made the statement knowing it was false or
“with reckless disregard” as to whether it was false.
448
Despite the benets of the revised New York law, its enforcement
has not been without challenges. While Judge Jed S. Rakoff held that
the revised New York law applied retroactively to litigation pending
when the amendments were passed, others have differed on this issue.
449
Still other courts have reached divergent conclusions on whether the
amended anti-SLAPP law even applies in federal court.
450
And, some
federal district courts also have refused to apply § 70a, the revised law’s
attorneys’ fee provisions.
451
In response to the differing state laws relating to SLAPP suits, the
Uniform Law Commission (ULC) created the Uniform Public Expres-
sion Protection Act (UPEPA).
452
Recently, a number of organizations
joined in an open letter expressing support for anti-SLAPP laws “mod-
eled after” UPEPA.
453
The model act provides a number of features that
would improve existing state anti-SLAPP laws. The letter focused on
“six features in the UPEPA ... necessary for an effective anti-SLAPP
law”
454
: The “features” include:
1. Protection of all expression on matters of public concern;
446. Id. § 3211(g)(3).
447. Id.
448. N.Y. Civ. Rts. § 76-a(2).
449. Palin v. N.Y. Times Co., 510 F. Supp. 3d 21, 27 (S.D.N.Y. 2020). But see Gottwald v. Sebert,
165 N.Y.S.3d 38 (App. Div. 2022).
450. See Palin, 510 F. Supp. 3d at 26.
451. Carroll v. Trump, 590 F. Supp. 3d 575, 582 (S.D.N.Y. 2022).
452. See Uniform Public Expression Protection Act, Unif. Law Comm’n (2020), https://.
uniformlaws.org/higherlogic/system/dowload document file.ashx? documentfilekey=
46ab46fa-5ef6-8ddo-760a-ce95c59f0d14&forcedialog=0.
453. An Open Letter in Support of Uniform Law Commission’s Uniform Public Expression
Protection Act, Inst. for Free Speech (June 23, 2022), https://www.ifs.org/expert-analysis/an-open-
letter-in-support-of-the-uniform-law-commissions-uniform-public-expression-protection-act/.
454. Id.
2024] NEW YORK TIMES v. SULLIVAN AT 60 1069
2. Minimization of litigation costs by allowing defendants to le an
anti-SLAPP motion in court;
3. Requiring plaintiffs to show they have a legitimate case early in
the litigation;
4. The right to an immediate appeal on anti-SLAPP motion ruling;
5. Award of costs and attorneys’ fees; and,
6. Broad judicial interpretation of anti-SLAPP laws to protect free
speech.
455
The letter concluded with the statement: “We appreciate the work of
the Uniform Law Commission to craft the UPEPA and support its pas-
sage in states across the country with weak or no anti-SLAPP laws.”
456
While anti-SLAPP statutes can provide useful protection for defen-
dants, they are far from uniform and not all states have adopted them
in any form. Moreover, there has been no adoption of a federal anti-
SLAPP law and no evidence that it will happen in the near future.
457
As noted previously, the focus on protecting journalists, does not tell
the whole defamation liability story in an era when major public g-
ure defamation cases are on the rise. Concocted stories and bold lies
also have spawned a ood of litigation. Alex Jones’s lies about the mass
shooting of twenty-six people at Sandy Hook Elementary School have
been a catalyst to huge awards against him in a number of cases.
458
In
August 2022 a Texas jury ordered Alex Jones, host of Infowars, to pay
parents of killed six-year-olds in the Sandy Hook, Connecticut shoot-
ing $4.1 million in compensatory damages and $45.2 million in punitive
damages for spreading a lie that the shooting was actually a hoax.
459
Jones had falsely claimed that the shootings were created by government
nancial “gun grabbers” who used actors to serve as grieving parents. In
455. Id. The Organizing signers included the American Civil Liberties Union (ACLU) Institute,
Institute for Free Speech, Institute for Justice, Public Participation Project and Reporters’ Com-
mittee for Freedom of the Press, as well as twenty other organizations that joined in.
456. Id.
457. See Daniel A. Horwitz, The Need for a Federal Anti-SLAPP Law, N.Y.U. J. Legis. & Pub.
Pol’y Quorum (2020), https://nyujlpp.org/quorum/the-need-for-a-federal-anti-slapp-law/ [https://
perma.cc/4Q5F-AUP6]; Brogan, supra note 434, at 276–77 (2022).
458. Leslie Brody, Sandy Hook Parents Sue Radio Host Alex Jones for Calling Shooting a
Hoax, Wall St. J. (Apr. 17, 2018, 7:54 PM), https://www.wsj.com/articles/sandy-hook-parents-sue-
radio-host-alex-jones-for-calling-shooting-a-hoax-1524000776; Elizabeth Williamson, ‘We Told the
Truth’: Sandy Hook Families Win $1 Billion From Alex Jones, N.Y. Times (Oct. 12, 2022, 10:12 PM),
https://www.nytimes.com/2022/10/12/us/politics/alex-jones-sandy-hook-damages.html.
459. Curriden, supra note 32, at 38; Elizabeth Williamson, How They Did It: Sandy Hook
Families Gain Long-Awaited Legal Wins, N.Y. Times (Feb. 21, 2022), https://www.nytimes.
com/2022/02/20/us/politics/sandy-hook-legal-victories.html (discussing the Pozner v. Fetzer case
based on Fetzer’s false statements); Elizabeth Williamson, Sandy Hook: An American Tragedy
and the Battle for Truth (2022).
1070 DEPAUL LAW REVIEW [Vol. 73:995
October of the same year, a Connecticut jury awarded $96.5 million to
eight Sandy Hook victims’ families and an FBI agent.
460
Another example of how a spreader of baseless lies can be held
accountable is the Freeman v. Giuliani
461
case. In the Freeman action,
Rudy Giuliani was alleged to have claimed that two Georgia election
workers improperly handled ballots during tabulation of votes in the
2020 election in Atlanta.
462
Giuliani had claimed “that plaintiffs were
pulling suitcases lled with mystery ballots from under tables while tab-
ulating the votes on election night ... .”
463
The decision by U.S. District
Judge Beryl Howell demonstrates several factors crucial to defama-
tion law. First, regardless of who the parties are—public gures, limited
purpose public gures or private gures, prompt disclosure of relevant
information is crucial to a just and economical resolution.
Second, having judges prepared to intervene to ensure compliance
with applicable rules and law is necessary for all parties. In Freeman, the
Judge found Giuliani had failed to comply with court ordered discovery
obligations.
464
This need applies to defendants wrongfully targeted by
460. Curriden, supra note 32, at 37–38 (discussing Alex Jones jury awards). Recently,
U.S. District Judge Christopher Lopez of Houston ruled that Jones could not use bank-
ruptcy proceedings to avoid payment of over $1.1 billion to the victims’ families who
brought legal actions based on Jones’ conspiracy theories concerning the school massacre.
Judge Rules Alex Jones Can’t Use Bankruptcy Protection to Avoid Paying Sandy Hook
Families, PBS (Oct. 20, 2023, 4:54 PM), https://www.pbs.org/newshour/nation/judge-rules-alex-
jones-cant-use-bankruptcy-protection-to-avoid-paying-sandy-hook-families.
461. Memorandum Opinion, Ruby Freeman v. Giuliani, Case No. 21-3354-BAH, 2023 WL
5600316, at *26 (D.D.C. Aug. 30, 2023). See also Freeman v. Giuliani, Case No. 21-3354-BAH, 2022
WL 16551323 (D.D.C. Oct. 31, 2022) and Freeman v. Giuliani, Case No. 21-3354-BAH, 2023 WL
4750552 (D.D.C. July 13, 2023) for the background of the litigation.
462. Alan Feuer & Ben Protess, Giuliani Is Liable for Defaming Georgia Election Work-
ers, Judge Says, N.Y. Times (Aug. 30, 2023), https://www.nytimes.com/2023/08/30/us/politics/
giuliani-defamation-georgia.html; Jan Wolfe, Rudy Giuliani Is Found Liable for Defaming
Georgia Poll Worker—Federal Judge Blasts Former Trump Lawyer, Citing ‘Willful Discov-
ery Misconduct’, Wall St. J. (Aug. 30, 2023, 2:02 PM), https://www.wsj.com/us-news/law/
rudy-giuliani-is-found-liable-for-defaming-georgia-poll-workers-d0786323.
463. Memorandum Opinion, Freeman v. Giuliani, No. 21-3354 (BAH), 2023 WL 5600316, at *17
(D.D.C. Aug. 30, 2023).
464. Id. In a 2021 case with similar delay tactics, Freeman v. Hoft, the plaintiffs Ruby Freeman
and Wandrea “Shaye” Moss claimed they were “targets of... a campaign of lies” by an ultra-
conservative St. Louis website, known as The Gateway Pundit, concerning “ballot fraud to alter the
outcome of the 2020 presidential election in Georgia.” The Gateway Pundit ultimately published
many stories about election workers counting illegal ballots to steal the presidential election. But
despite trying to delay the action, St. Louis Circuit Judge Michael Stelzer, dismissed a counter-
claim as well as defendant’s motion to dismiss the entire case. See Amended Complaint at 1–2,
Freeman v. Hoft, No. 4:21-CV-1424-HEA, (E.D. Mo. Jan. 14, 2022). See also Jason Hancock, Gate-
way Pundit Accused of Purposely Delaying Defamation Case Involving False Fraud Claims, Mo.
Indep. (Oct. 12, 2023, 10:03 AM), https://missouriindependent.com/briefs/gateway-pundit-accused-
of-purposely-delaying-defamation-case-involving-false-fraud-claims/ [https://perma.cc/3DY7-
9APY]; Jason Hancock, As Fox News Case Heads to Trial, Far Right St. Louis Site Faces its Own
Defamation Suit, Mo. Indep. (Apr. 17, 2023, 5:55 AM), https://missouriindependent.com/2023/04/17/
2024] NEW YORK TIMES v. SULLIVAN AT 60 1071
plaintiffs to bully them and to plaintiffs subjected to falsehoods and
disinformation.
465
No one has all the answers in this era of falsehoods and disinforma-
tion that come from a variety of sources including social media, televi-
sion news and websites, but we do have some meaningful conclusions.
One thing that has been demonstrated by the Alex Jones, Fox News,
and Rudy Giuliani cases is that those who spread and cultivate false-
hoods can be held accountable under the actual malice standard. There-
fore, while the application of actual malice standard can be modestly
adjusted, for example, to expedite discovery and disclosure of proba-
tive information
466
—but throwing out the long standing and broadly
applied actual malice test is not required.
467
Many defamation scholars
have reached similar conclusions. In his 2021 article, Matthew L. Schafer
concluded:
Nor is there reason to believe that removing the protections of the
actual-malice rule will confront the serious problems that do face
the news industry or our broader mass-communication eco system.
If anything, overturning Sullivan would likely worsen matters, to chill
reputable news organizations while doing little to deter bad actors
operating anonymously on the internet.
468
Professor Jane E. Kirtley also voiced concerns with “doing away with
New York Times v. Sullivan” in a 2020 article. She declared: “There is
no question that the defense of libel suits can be very costly, and that
news organizations, facing signicant challenges of their own, may well
be deterred from investigative reporting if they fear that crippling legal
expenses or even bankruptcy, may follow.”
469
And, as Professor Richard L. Hasen noted in his 2022 book titled
Cheap Speech, he does not believe that changing the defamation stan-
dards is a viable solution. He explained in greater detail:
as-fox-news-case-heads-to-trial-far-right-st-louis-site-faces-its-own-defamation-suit/ [https://
perma.cc/KJ55-DV7S].
465. Sunstein, Liars: Falsehoods and Free Speech in an Age of Deception, supra note 97, at
104–05 (2021).
466. For sources concerning the development and viability of the “limited purpose public g-
ure” analysis, see Barbas, supra note 1, at 224–27 (2023); Lee Levine and Stephen Wermiel, The
Progeny 153–59 (2014); see also Berisha v. Lawson, 141 S. Ct. 2424, 2425–30 (2021) (Gorsuch, J.,
dissenting). A response to Justice Gorsuch can be found at Tofel & Kutner, A Response to Justice
Gorsuch, in New York Times v. Sullivan: The Case for Preserving an Essential Precedent,
supra note 429, at 79–95.
467. This issue has received signicant coverage. See Zachary R. Cormier, The News Media
Engagement Principle: Why Social Media Has Not Actually Overrun the Limited Purpose Public
Figure Category, 78 U. Miami L. Rev. 64, 78–90 (2023).
468. Schafer, In Defense, supra note 21, at 159.
469. Jane E. Kirtley, Uncommon Law: The Past, Present and Future of Libel Law in a Time of
“Fake News” and “Enemies of the American People”, 2020 U. Chi. Legal F. 144 (2020).
1072 DEPAUL LAW REVIEW [Vol. 73:995
Easing the actual malice standard will do little to counter disinforma-
tion, given that much of it does not defame anyone in particular and
lawsuits are cumbersome things. * * * The openness of these conser-
vative justices to rethinking First Amendment law in light of cheap
speech is encouraging, but lowering the bar for libel suits is a danger-
ous way of attacking the disinformation problem.
470
The law surrounding the actual malice standard is sometimes com-
plex and nuanced. But, because the standard has withstood the test of
time while preserving free speech, its wholesale replacement is uncalled
for. Indeed, the print media and those subjected to politically-oriented
bullying and rampant falsehoods are likely in need of even greater pro-
tections. Clearly, anti-SLAPP laws and the aggressive enforcement of
defamation pleading and discovery standards by the court system is
required. Spreaders of falsehoods should not be able to postpone dis-
covery responses for years—all the while they bleed their opponents of
thousands of dollars in attorneys’ fees or force them into bankruptcy.
Conclusion
Defamation law has changed over time. But, its negative motivations
and substantial downsides have only increased. Indeed, more defama-
tion actions are led now than in the recent past. Moreover, the new use
of the social media and other informal means to spread untruths and to
bludgeon opponents only increases the hazards to all parties and to the
print media, in particular. And, some defendants are motivated to con-
tinue making defamatory statements to stimulate supporters regardless
of the law or ultimate cost. Yet, the support for the actual malice stan-
dard remains. As discussed in this Article, the standard can be better
supported with active judicial oversight and more aggressive pleadings,
motion practice and anti-SLAPP statutes to help avoid the substantial
attorneys’ fees and other related costs that can be incurred in defend-
ing even totally meritless claims. The Alex Jones Sandy Hook Families
Litigation
471
and the Freeman and Moss v. Giuliani
472
cases illustrate
that baseless lies can take years to resolve and even longer to compen-
sate the victims of untruths that have been spread for the economic or
political benet of adverse parties.
473
470. Hasen, supra note 423, at 117.
471. See supra note 460 and accompanying text.
472. See Memorandum Opinion, Freeman v. Giuliani, Case No. 1:21-cv-03354, 2023 WL 5600316,
at *26 (D.D.C. Aug. 30, 2023). See also Andy Kroll, The Unsettling Truth at the Heart of the Giuliani
Case, N.Y. Times (Dec. 23, 2023), https://www.nytimes.com/2023/12/23/opinion/giuliani-bankrupt-
election-workers.html.
473. RonNell Andersen Jones, The E. Jean Carroll Verdict Exposes the Limits of Libel Law,
N.Y. Times (Jan. 28, 2024), https://www.nytimes.com/2024/01/28/opinion/donald-trump-e-jean-car-
roll-libel-damages.html (“[R]ecent cases have revealed some defendants who seem motivated to
2024] NEW YORK TIMES v. SULLIVAN AT 60 1073
So, while there have been a number of critics of the actual malice
standard on the bench, in political parties and academies, there is no
substantial evidence that changing the standard would lead to better,
more just, or less expensive results. And, even though some members
of the media may even be responsible for false and defamatory state-
ments, there is no evidence that overturning New York Times v. Sullivan
will lead to different outcomes. Indeed, the plaintiffs in the Sandy Hook
and Dominion Voting cases were ultimately able to secure substantial
awards and fees despite the actual malice standard that some have
termed an insurmountable barrier to recovery. This conclusion does
not mean that defamation law cannot be made more efcient by use of
detailed pleading rules as well as expedited discovery and motion prac-
tice requirements. These measures, in applicable cases, together with
anti-SLAPP statutes, can hasten resolution of subject defamation cases
and contain litigation costs.
The Sullivan standard sometimes may protect negligent conduct, but
not baseless statements meant to cause harm to others or for political
gain. One can hope that the impact of substantial awards against those
who spread false statements for their own benet, ultimately may dis-
courage others from doing so in the future.
defame even as their assets are depleted or made unreachable to plaintiffs. Rudy Giuliani who
reasserted his defamatory allegations against two Georgia poll workers outside the courthouse as
the jury decided his case, led for bankruptcy just days after he was ordered to pay $148 million
for those lies.”).
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