Sullivan's Reckoning: Why It's Time to Overturn America's Defamation Shield
By: Elizabeth Price Foley and Mark I. Pinkert
Civil discourse is rapidly declining. The U.S. is mired in escalating, violent political rhetoric, acts of political violence, and dismal polls showing that twenty percent of young adults think violence is justified to achieve political goals. While there are many cultural factors at play, one obvious legal factor is the Supreme Court’s decision in New York Times v. Sullivan (1964).
Sullivan made it almost impossible to win a defamation lawsuit if it involves a public figure or a matter of public concern because the plaintiff must prove “actual malice.” This means the defendant either knew his statement was false or acted with “reckless disregard” because he had “serious doubts” about its truth.
The Sullivan Court thought the actual malice standard it created would protect the First Amendment’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” and that such “debate” will often involve “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Sixty years after Sullivan, however, robust debate has virtually disappeared, and Sullivan is unfortunately facilitating that dangerous trend.
Today, individuals often get the news from social media, which is fueled by algorithms that create information silos affirming and amplifying—and rarely challenging—individuals’ preexisting views. Going outside these silos takes real effort, and few have the time or inclination to make that effort. Once inside an information silo, an individual often firmly believes things are true when objectively, they are not.
Consequently, the “marketplace of ideas” upon which the First Amendment’s Free Speech Clause and Sullivan are based is rapidly disappearing. Debates have been replaced by angry, often violent outbursts designed to silence divergent views. Charlie Kirk was assassinated during one of his “Prove Me Wrong” debates, by an assassin hellbent on permanently silencing those debates. President Trump survived two assassination attempts in the past year and a half—one of which, at a political rally in Butler, Pennsylvania, killed one person and severely injured two more. Tesla vehicles were repeatedly vandalized and firebombed to “protest” Elon Musk’s support of Trump and DOGE. Pennsylvania Governor Josh Shapiro’s residence was set on fire by someone enraged by Shapiro’s support of Israel in its war with Hamas.
Even when violence doesn’t erupt, information silos perpetuate blatant and divisive falsehoods that go viral and, as the old adage goes, “travel halfway around the world before the truth can get its boots on.” In October 2020, on the eve of the presidential election, fifty-one former U.S. intelligence officials said emails found on Hunter Biden’s laptop discussing the Bidens’ business dealings in Ukraine had “all the classic earmarks of a Russian information operation,” and this was amplified by all legacy media outlets and even President Biden during the 2020 presidential debate. Major media outlets finally admitted the laptop’s contents were real in 2022, two years after the election. A July 2025 Rasmussen poll revealed that an astonishing 60 percent of Democratic voters still believe the “Trump campaign colluded with the Russian government to win the 2016 election.”
More recently, TV host Jimmy Kimmel was suspended after he falsely blamed Kirk’s assassination on the “MAGA gang.” Government officials routinely characterize ICE agents—who are enforcing longstanding federal immigration law—as “terrorists” who are engaged in “kidnapping” and “human trafficking.”
These are all lies, but those who utter them may believe them, so Sullivan’s actual malice standard substantially insulates them from defamation liability. Allowing blatant falsehoods like this to flourish with little to no legal risk doesn’t protect the “marketplace of ideas” that the First Amendment protects; it destroys it.
The actual malice standard may have encouraged robust debate in the 1960s when Americans obtained news from a few, highly professional journalistic sources that endeavored to verify allegations before publishing them. But in an age where many individuals get their news from custom-tailored echo chambers, the actual malice standard encourages fast publication of clickbait pieces spewing unverified assertions and ad hominem attacks.
Prior to Sullivan in 1964, centuries of common law recognized defamation premised on the publication of negligent falsehoods, which encouraged publishers to conduct reasonable investigations before dissemination. The founding generation that wrote and ratified the First Amendment evinced no desire to alter these longstanding, common law understandings of defamation. As Justice Clarence Thomas recently put it, Sullivan’s actual malice standard was policymaking “masquerading as constitutional law.”
Justice Thomas isn’t alone: Justice Gorsuch recently declared, “Under the actual malice regime as it has evolved, ‘ignorance is bliss’” and “publishing without investigation, fact-checking, or editing has become the optimal legal strategy.” Numerous other former Justices, on both sides of the aisle, have criticized the actual malice standard, including Chief Justices Burger and Rehnquist, and Justices White, Harlan, Marshall, Black, Goldberg and Stewart have questioned Sullivan’s soundness.
When the right case presents itself, the Roberts Court should overrule Sullivan. Doing so will restore legal liability for blatant lies, temper unchecked political rhetoric, and advance the Court’s effort to restore the original meaning of the Constitution.
