Is it Free Speech or Isn’t It? (And Why WHO it Protects is All That’s Needed to Answer the Question.)

Ingrid Cherry

Clarence Thomas wants to overturn the actual malice standard articulated in the landmark case New York Times v. Sullivan.[1] He has been pushing for reducing the standard needed to win libel cases for years.[2] He hasn’t been alone in this crusade. Conservative groups have built a strong loathing for the standard, which they deem to be too onerous, a threat from liberal media brandished against their own who chose to “speak out.”[3] Since Justice Gorsuch has joined the Supreme Court, Thomas has not been alone in his cause.[4] While 2022 saw another year where the Supreme Court passed on the opportunity to hear a Sullivan-overturning case, 2023 may be the year the Court challenges the actual malice standard head-on.[5]

Sarah Palin is pursuing an appeal in her libel case against The New York Times.[6] The case is a right wing darling for taking down the actual malice standard and has positioned itself as a champion for public figures against massive media machines.[7] Interestingly enough, that seems to be the united approach towards overturning Sullivan; members of the small but growing movement, like Gorsuch and Palin, have claimed that actual malice was an actionable standard in 1964 (when it was articulated) but that it cannot keep up with what the media has turned into today.[8] Of course, Sullivan-critics are referring to the broad reach of the internet, and—despite not explicitly using the term—the “cancel culture” that comes along with it. Their fear-mongering ignores that it is easier than ever for news outlets to, (1) fact-check information, reducing the likelihood of defamatory stories making it to publication and (2) quickly and effectively correct defamatory statements with edit features for online publications and social media posts that reach millions. It is worth mentioning that the allegedly defamatory statement against Palin was quickly corrected by The New York Times in this manner.[9]

With a conservative-filled Supreme Court, it feels possible that Sullivan will be overturned for a standard that allows states to articulate their own barriers to finding libel.[10] Of course, such a ruling would be facially at odds with the values of a Supreme Court that looks as though it will take a hard stand on protecting other First Amendment rights.[11] This court has been comfortable with overturning precedent and writing contradictory opinions.[12] And it only takes a little digging to see that the court is more concerned with protecting a certain ethos of speech rather than a blanket freedom to it.

While a lot of the groundwork for the anti-Sullivan movement can be chalked up to conservative-case pushing, I think there is more at play. I mentioned above the pervasiveness of cancel culture, which in the past several years has grown increasingly in usage while simultaneously losing any actual meaning.[13] Liberal politicians and legal actors are just as afraid of cancel culture as the right. I also believe that public opinion towards the actual malice standard is heavily swayed based on the parties involved, making it a less controversial lodestar to overturn.

We most recently saw this at play with the Depp v. Heard trial, which found for defamation based on an op-ed written by Heard that detailed her experiences as a survivor of abuse and violence without directly naming Depp.[14] Boiled down to its simplest form, the outcome of this case says it’s libel for someone to imply that their very famous partner abused them via a published story. I think most people would balk at that suggestion, but the media frenzy around the case led to a shocking amount of vitriol towards Heard.[15] Should the Supreme Court decide to pick up Palin’s case, I’m not sure they will get quite as much engagement. But if they pick differently, the public may easily accept a limit on free speech in the name of taking down someone who is painted as a villain.


[1] Ariane de Vogue, Supreme Court Declines To Revisit Landmark First Amendment Decision, Leaving Higher Bar for Libel in Place, CNN (June 27, 2022), [] []. Thomas penned a dissent in regards to the Supreme Court’s refusal to take up a case that protected SPLC’s right to designate Coral Ridge, a religious organization, as a hate group on their website. “‘I would grant certiorari in this case to revisit the ‘actual malice’ standard,’ Thomas wrote. ‘This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’’”

[2] See Gabriel Snyder, The Quest To Overturn Actual Malice, FINE PRINT (Feb. 20, 2022), [] []. For a brief history of Thomas’ anti-actual malice opinions.

[3] Id.  

[4] See Ariane de Vogue, Justices Gorsuch and Thomas Call To Revisit Landmark First Amendment Case New York Times v. Sullivan, CNN (July 2, 2021), [] [].

[5] See de Vogue, supra note 1. See also Coral Ridge Ministries Media, Inc. v. S. Poverty L. Ctr., 142 S. Ct. 2453 (2022).

[6] See Bruce D. Brown & Gabe Rottman, Sarah Palin's Fight Against the New York Times Shows the Free Press Isn't Safe, TIME (Oct. 19, 2022), [] [].

[7] See Brown & Rottman, supra note 6. “But her appeal of that decision goes beyond her own case. Palin is trying to take down a landmark 1964 Supreme Court ruling that protects the press by requiring a public official who sues for libel to prove that the defendant knew or strongly suspected a published statement to be false. ‘The rule,’ Palin’s brief reads, ‘is obsolete in the modern speech landscape’ where the rise of the internet, she claims, has made it easier to defame.” See also Genevieve Lakier, Is the Legal Standard for Libel Outdated? Sarah Palin Could Help Answer., WASH. POST (Feb. 3, 2022), [] []. “Some have suggested, for example, that Palin’s lawsuit against the Times might provide a vehicle for the Supreme Court to overturn, or substantially limit, the Sullivan rule.”

[8] See Brown & Rottman, supra note 6. “Justice Gorsuch has shown a desire to reconsider the decision, saying that a shifting “media landscape” may warrant weakening its protections.”

[9] Josh Gerstein, Palin v. New York Times Pushes New Boundaries on Libel Suits, POLITICO (Jan. 23, 2022), [] []. “Within a day, the Times corrected the editorial and noted that no connection was ever established between the rampage and a map that Palin’s political action committee circulated with crosshairs superimposed on the districts of 20 Democrats, including Giffords.”    

[10] See Brown & Rottman, supra note 6. “Last year, Supreme Court Justices Clarence Thomas and Neil Gorsuch separately called for the high court to revisit its 1964 ruling in Sullivan, sparking renewed hope among the decision’s opponents of a judicial retreat from its protections.”

[11] See Mark Joseph Stern, The Easy-to-Miss Twist that Makes the Supreme Court’s New Gay Rights Case so Strange, SLATE (Dec. 5, 2022), [] []. For a discussion on 303 Creative v. Elenis, a recent Supreme Court case that appears likely to result in the court protecting freedom of speech concerns over state anti-discrimination laws.

[12] See Brown & Rottman, supra note 6. “This summer’s abortion rights ruling in Dobbs v. Jackson Women’s Health Organization showed the Supreme Court is capable of overturning decades of precedent.”

[13] See Jonah Valdez, Lizzo Tweeted ‘Cancel Culture Is Appropriation.’ Not Everyone Agreed with Her Point, L.A. TIMES (Jan. 9, 2023), [] []. For a discussion on how the term “cancel” has lost meaning as it has gone mainstream.

[14] Kalhan Rosenblatt, Johnny Depp and Amber Heard Defamation Trial:  Summary and Timeline, NBC NEWS (Apr. 27, 2022), [] []. “Heard writes the op-ed for The Washington Post at the heart of the defamation lawsuit. In the op-ed, she writes: ‘I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.’ Heard's article mentions her experience with abuse from her childhood to adulthood. It does not include Depp's name.”

[15] See Rosenblatt, supra note 14. “Heard also returns to the stand on May 26 before closing arguments. She says she has been inundated with death threats since the start of the trial.”