First Amendment

A dark side to NYT v. Sullivan? Law prof says decision contributed to political polarization


Harvard law professor Cass Sunstein sees a “dark side” to the famous free-speech decision New York Times v. Sullivan.

Writing for Bloomberg View, Sunstein says the U.S. Supreme Court got it right 50 years ago when it required public officials to prove actual malice in libel suits.

But Sunstein says the decision “has also created a continuing problem for public civility and for democratic self-government.” The court ruling often protects critics who target public figures, even when they get some details wrong.

“When it comes to public figures” Sunstein writes, “all sorts of false allegations are permissible, whether they involve birth certificates, drug abuse, sexual misconduct or income tax fraud. One result is that those who seek public office put their reputation at immediate risk.

“One of the goals of the court’s ruling was to protect self-government, but the effects on self-government are not all good. Talk show hosts, bloggers and users of social media can spread ugly falsehoods in an instant—exposing citizens to lies that may well cause them to look on their leaders with unjustified suspicion.”

Sunstein says the wrong information is often refuted in the marketplace of ideas, “but sometimes the truth arrives too late.” The decision, he said, “can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.”

Hat tip to How Appealing.

Related article:

ABA Journal: “50 years after New York Times v. Sullivan, do courts still value journalists’ watchdog role?”

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