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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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).