The Magazine

The Incivility Epidemic

How the Supreme Court's defamation decisions coarsened our public life

Dec 7, 2009, Vol. 15, No. 12 • By ROBERT F. NAGEL
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In recent weeks charges of defamation have been flying thick and fast. Writing in the Wall Street Journal, Rush Limbaugh accused the Reverend Jesse Jackson, as well as CNN, MSNBC and various unidentified sportswriters, of attributing to him racist statements that he never made. Limbaugh traced these statements, including one supporting slavery and another praising the murderer of Martin Luther King Jr., to a Wikipedia post that was in turn based on a fabrication printed in a book that provided no source for the quotations. Limbaugh's article also mentioned the Reverend Al Sharpton, whom Limbaugh described as having played a leading role in two race riots in the 1990s, and Sharpton promptly threatened to sue Limbaugh for defamation.

The spectacle of these two famous and outspoken men complaining about damage to their reputations has its risible side, but their complaints are part of a more general pattern of charges and countercharges concerning irresponsibility in public debate. The House speaker, Nancy Pelosi, has voiced the fear that rhetoric criticizing President Obama is so overheated that it might lead to an assassination attempt. But Pelosi has used some overheated rhetoric herself--for instance, calling some of the protesters at last summer's town-hall meetings "un-American." Obama has accused the medical insurance industry of being "dishonest" in its opposition to his proposed reform legislation. The president himself was famously accused of lying about health care by Representative Joe Wilson, who was later admonished by the House of Representatives for having "degraded the proceedings" during a joint session of Congress.

Granted, there is something suspicious in sanctimonious complaints about irresponsible public debate when the complaints are voiced by those who engage in irresponsible public debate. Even assuming that these complaints involve large doses of posturing, though, it is also possible that powerful and prominent people sense that they are caught up in a political culture that is vicious. Indeed, the very fact that people are expected to accept calumny as an ordinary part of taking a leadership role in political life is itself a sign of something gone wrong. In any event, observers of the political scene are entitled to note with dismay the prevalence of distortions and insults and to wonder about the causes of degenerate public discourse.

The nasty character of modern political argumentation is commonly traced to a number of factors. For one thing, Americans are--and always have been--a contentious people. Today, however, this contentiousness is magnified enormously by new technologies. Many lament the anonymity of the blogosphere, as well as the unremitting hunger for angry confrontation that sustains interest during 24-hour news cycles. But technology is only part of the story. The nationalization of divisive issues, like abortion, has surely contributed to the current climate. So has the ideological polarization of the two political parties and the politicization of higher education. One cause that receives less attention than it deserves is the work of that paragon of thoughtful decorum, the Supreme Court.

The Court's role in coarsening the culture by protecting profanity and pornography does get some attention. But the role its defamation decisions have played in lowering the standards of political discourse is mostly ignored. Indeed, New York Times v. Sullivan, the watershed opinion that in 1964 began the Court's ambitious campaign to protect defamatory speech, has been the object of much adulation. Two highly respected free speech scholars, Harry Kalven Jr. and Alexander Meiklejohn, greeted Sullivan with the declaration that the decision was "an occasion for dancing in the streets." Anthony Lewis's well-received book on the case called it a "transforming judgment" that dispelled a threat to "the right of the press to report on tense social issues." Many of the criticisms that do exist accept the basic logic of the defamation decision and argue that the justices should have gone even further in protecting libel and slander.

The reasons so many are in favor of privileging defamatory speech have partly to do with the intellectual force of the classic arguments for an unfettered marketplace of ideas made by people like John Stuart Mill and Justice Oliver Wendell Holmes. Yet the free pass for Sullivan and subsequent defamation decisions is also partly traceable to intellectual fashion, an odd fact given the premium that Mill and Holmes put on the need to challenge orthodoxies of all kinds.

And then there is plain old self-interest. Journalists, law professors, and political commentators are in the business of publishing and thus stand to benefit from the protections created by the Court. Whatever the causes, the result has been an underappreciation for the degree to which the Supreme Court's efforts have been based on a limited and distorted understanding of the nature of a healthy system of political debate.

Beginning with Sullivan, the Court's decisions have been premised on a clear but false dichotomy. The interests thought to be at stake are, on the one hand, the individual's personal interest in reputation and, on the other, the public's interest in a robust system of free expression. Once the relevant interests are identified in this way, the logic behind constitutional protections for defamation is simple: Forcing people to pay for damage they have caused to someone's reputation acts as a disincentive to vigorous expression.

The argument goes on to claim that it is not only false and harmful messages that are discouraged but also--because of the need to stay clear of the risk of litigation and liability--some truthful messages. Traditional defamation rules, then, have a generally inhibiting effect on free-wheeling debate. In fact, the Sullivan Court declared that the possibility of large monetary awards will create a "pall of fear and timidity .  .  . in which the First Amendment freedoms cannot survive."

That Sullivan's logic was based on an oversimplification is suggested by this ahistorical conclusion. If the kinds of defamation rules that had existed throughout American history threatened to create a pall of fear and timidity, where was the evidence that up until 1964 political criticisms had been inhibited or timid? Apparently satisfied that its economic analysis was sufficiently persuasive in itself, the Court offered no historical support for its dire conclusion.

Supported or not by the facts of American history, the Supreme Court widened its campaign for robust public debate in the years after Sullivan. That initial case had been about the defamation of a public official and thus involved the special place that the right to criticize the government has in First Amendment law. The Court soon expanded the same protections to defamations of individuals who, while outside of government, had entered "the vortex of public debate."

Next the justices constructed an elaborate set of privileges for messages that relate to a private person but on "a matter of public concern." These new privileges are less protective of a speaker or writer than those that apply to the defamation of public officials and public figures but are more protective than had commonly been applied to the defamation of private individuals. In the Court's view, this intermediate level of protection appropriately balances the same two interests that underlay the logic of Sullivan--the individual's interest in reputation and the public's interest in robust discussion.

The Court's campaign to protect defamatory speech has now drastically altered the law in virtually every state. Only defamation relating to a private individual on a matter of private concern is subject to traditional penalties. Constitutional protections have also been announced to limit the right to recover for invasion of privacy and intentional infliction of emotional distress.

To the many individuals complaining about the prevalence of careless and ugly untruths in our public discourse, those convinced by the logic of the Court's decisions have a stock reply: "This is the price we must pay for a vigorous system of free expression." But that answer is as simplistic as the justices' decisions, because it assumes that traditional protections from defamation and other harmful speech served only private interests.

As Justice Byron White fruitlessly argued, the defamation rules in place throughout most of our history helped to create a healthy system of public debate. That is one reason why American political debate had been reasonably vigorous during all those decades prior to Sullivan when, according to the Court's suppositions, it should have been characterized by a pall of fear and timidity. What the Court missed in its eagerness to limit protections for reputation is the fact that those protections serve both private interests and free speech interests.

Consider, for example, the incentives that traditional protections against defamation created for active participation in public life. Because those protections were not diminished when a person held governmental office or became active in public debate, people who sought that kind of prominence paid no special reputational price. In its defamation decisions, the Court saw that traditional defamation law discouraged certain kinds of criticisms of people in public roles, but it did not see how this very fact encouraged active engagement in political affairs.

To allow politically active people to recover for harm to their reputations on the same terms as others had a more subtle benefit as well. The possibility of recovery would have had more significance for those who placed an especially high value on their reputations. Thus, valuable voices were added to political discourse--the voices of people who cared about their standing in the community and, presumably, would be inclined to understand why others might care about their reputations as well.

In contrast, the legal scheme put in place since 1964 tends to discourage the participation of people who care about reputation. Left on the public stage are those for whom civility means less.

Even the disincentives to speech that the Sullivan Court did recognize are more complex than it acknowledged. It is true, of course, that traditional defamation law discouraged certain kinds of criticisms of people in public life. Since truth was a defense, however, the law encouraged truthful criticisms. It encouraged the kind of careful research and fact-gathering that could provide a defense to a defamation claim.

The legal scheme created by Sullivan does just the opposite. That scheme protects defamatory statements unless the speaker acted with "knowing or reckless disregard for the truth." In many situations this means, perversely, that the more the speaker knows, the more he risks liability. So the Sullivan standard contains its own disincentives to speech. It can discourage the impulse to investigate further and thus to write more fully and more accurately.

This strange result can be seen in the facts that led to the Court's decision. The New York Times had published a fundraising advertisement sponsored by the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South." The ad charged Montgomery police with ringing Alabama State College and padlocking the school's dining hall in an attempt to "starve [students] into submission." It also asserted that police had bombed Dr. King's home. In fact, the police had never ringed the campus and had not locked the dining hall, where students continued to eat their meals. Rather than having bombed King's home, the police had made strenuous efforts to find those responsible.

The manager of the Advertising Acceptability Department at the Times had not checked the accuracy of the inflammatory claims in the advertisement. He had not even checked the Times's own news stories. Under the Court's reasoning, however, since the manager had not done any research that might have raised doubts about the ad's accuracy, he was justified in simply relying on the reputations of those who had signed it.

Under Sullivan, then, while reckless disregard for the truth can support a defamation award, relative ignorance can absolve the speaker of recklessness. This disincentive to thoroughness and accuracy deprives the system of important information. It is especially destructive because journalists know that competitors in their high pressure world have been liberated by Sullivan to publish spectacular claims quickly and carelessly.

Sullivan illustrates other ways that traditional defamation law enriched the system of free expression. In many situations--including in the original trial that resulted in a substantial monetary award for the Montgomery police commissioner L. B. Sullivan--the defamed person did not have to prove pecuniary injury. Thus when Sullivan demonstrated that the statements injured his reputation, the law presumed that he had been harmed in a way that could warrant compensation.

This presumption, obviously, created an incentive for a person whose reputation had been sullied to seek vindication in court. The law could provide a remedy even if proof of damages was costly or uncertain. A judicial determination, in turn, not only could compensate the victim but also could provide the public with important information about the truth or falsity of the information asserted to be defamatory. The rigorous presentation of evidence at trial can produce a different, and sometimes fuller, picture of the relevant events than might emerge from the more chaotic methods of public argumentation.

The jury granted punitive damages to Sullivan in part because the Times had been offered an opportunity to retract the false information in the advertisement it published and had refused. This feature of pre-Sullivan defamation law also could work to improve public discourse by providing an incentive for self-correction.

Traditional defamation law, then, in many ways served to enrich American political discourse. Since Sullivan, the Court has ignored this complexity by relying on a simplistic model of a healthy system of free speech. What has mattered is volume, speed, and audacity. A healthy system, however, also requires quality, deliberation, and responsibility.

 A healthier system of free speech--of the sort that would be promoted by protections against defamation--is not a radical idea. In fact, anyone who steps out of the artificial world of free speech jurisprudence into the real world of functioning public institutions will see this model in action. It can be seen, perversely enough, in the Supreme Court's own procedures. The Court does not hear oral arguments until it has been provided detailed and exhaustively researched legal briefs. During oral arguments, one advocate speaks at a time and is held to answer for weak arguments or inaccurate depictions of the record in the case. The Court's opinions emerge slowly after discussion among the justices, laborious research, and multiple drafts.

You might expect, therefore, that the members of the Court would be appreciative of how care and civility can enrich discourse. Nevertheless, it is not hard to understand at least one reason why the Sullivan Court ignored the many ways that traditional defamation law helped to enrich American political discourse. The justices must give authoritative answers to constitutional questions. If First Amendment values actually lie on both sides of a dispute--if free speech is not only inhibited but also promoted by traditional defamation law--justifying any particular resolution to a case like Sullivan becomes much more difficult.

Because the need for clear-cut answers in constitutional cases impels the Court toward a simplified and unrealistic understanding of the requirements of a successful system of free expression, it is probably futile to expect the federal judiciary to rethink its doctrines. However, inasmuch as the Court has thoroughly constitutionalized the issue of defamation, there is no alternative route to reform. The best that can be hoped for is that state legislatures might be bold enough to challenge the Court's constitutional straitjacket, at least around the edges. Efforts at carefully drafted right-to-reply statutes might be a place to start.

Unfortunately, in recent decades the Court has not reacted with interest or respect when the political branches contest its pronouncements. In a way, though, this is all the more reason to give the justices an opportunity to reconsider their assumptions about the nature of public debate in a democracy.


Robert F. Nagel is the Rothgerber professor of constitutional law at the University of Colorado Law School and author most recently of Unrestrained: Judicial Excess and the Mind of the American Lawyer (Transaction, 2008).