Supreme Court Signals That Landmark Libel Ruling Is Secure

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Supreme Court Signals That Landmark Libel Ruling Is Secure

Attacked by two justices, lower-court judges and litigants, the 1964 ruling in New York Times v. Sullivan keeps getting cited approvingly in the Supreme Court’s decisions.


From left, Justices Stephen G. Breyer, Neil M. Gorsuch, Elena Kagan, Brett M. Kavanaugh and Clarence Thomas and Chief Justice John G. Roberts Jr. in 2018. Pool photo by Jonathan Ernst

By Adam Liptak
Reporting from Washington

Feb. 10, 2025, 5:02 a.m. ET

Starting in 2019, Justice Clarence Thomas has repeatedly called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark First Amendment decision that made it hard for public officials to prevail in libel suits. ... That project gained momentum in 2021, when Justice Neil M. Gorsuch said the decision “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

So it was notable that just five days before President Trump took office last month, the Supreme Court seemed to go out of its way to signal that it is not ready to embrace one of his most dearly held goals: to “open up our libel laws” and overrule the Sullivan decision. ... The signal, faint but unmistakable, came in a routine case on whether sales representatives were entitled to overtime. Justice Brett M. Kavanaugh cited the Sullivan decision with seeming approval, noting that it had held that the Constitution insists that public officials suing for libel must prove their cases with clear and convincing evidence.

It was only an aside, one that Justice Kavanaugh used to help explain a distinction between the ordinary standard of proof that applies in most civil cases — a mere preponderance of the evidence — and the heightened standard required by the Sullivan decision. But justices do not typically invoke disfavored precedents to make general points. ... The choice was particularly telling, as the demanding standard of proof in Sullivan fortified its already transformative requirement that public officials must prove that the publishers of false and defamatory statements about them had acted with “actual malice.”

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The passage in last month’s decision went almost entirely unnoticed, but it helps explain an otherwise cryptic concurring opinion from Justice Gorsuch, joined by Justice Thomas. It said courts should apply the usual standard of proof “unless Congress alters it or the Constitution forbids it.” Justice Gorsuch added that the alternative would be to “choose sides in a policy debate rather than to declare the law as our judicial duty requires.” ... The two justices did not mention Sullivan, but they did not have to. The discussion of a policy debate was an echo of Justice Thomas’s initial 2019 dissent. “New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote at the time.

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Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak