Likely, most readers of this blog have heard of the landmark U.S. Supreme Court case of New York Times v. Sullivan, which came down in 1964. That case imposed a big limitation on the state law of libel, said to be based on the First Amendment to the U.S. Constitution. The law of libel — which is a matter of state rather than federal law, and mostly of common law rather than statutory law — generally allows a plaintiff to sue someone who harms his reputation by publishing false statements about him. At the time of the New York Times decision in the 1960s, there was widespread perception that state libel rules were being abused by public officials to silence legitimate criticism of them by the press.

The holding of New York Times v. Sullivan was that, to be consistent with the First Amendment, a public official cannot sue for libel, even based on published false statements, unless the official proves that the publisher acted with “actual malice” in making the statements. Subsequent federal court decisions have expanded the protections of the rule to apply not only to “public officials,” but also to “public figures” — a broad and indefinite category that might include anyone who speaks out on any subject of public interest.

But has the pendulum now swung too far? The issue is whether the New York Times standard now essentially gives a too-powerful press the ability to destroy anyone it wants by making false statements without any accountability.

This issue suddenly sprang back into public consciousness last week when Judge Laurence Silberman of the D.C. Circuit issued a notable dissent in a case called Tah v. Global Witness Publishing. The case involved a libel claim brought by two public officials — of Liberia by the way — who sued Global Witness for publishing allegedly false statements accusing them of taking bribes from Exxon. The District Court dismissed the case for failure to sufficiently allege “actual malice” by the publisher; and the majority of the D.C. Circuit panel affirmed.

In his dissent, Judge Silberman urged that New York Times v. Sullivan should be overruled. He called that precedent (accurately) a “policy-driven decision” with no basis in the actual text of the Constitution. And then he went on to describe how the decision has conferred enormous power on a media establishment that has become almost entirely a Democratic Party monoculture. I’ll give a fairly lengthy excerpt:

There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. . . . As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon. . . . The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.

Following Judge Silberman’s opinion, several right-side commentators promptly joined the call for overruling New York Times v. Sullivan as a way to rein in the over-powerful mainstream media. Notable among these was Roger Kimball, writing in the Epoch Times on March 22 (probably behind pay wall).

So do I join the call for overruling the New York Times case? Actually no.

Let me describe the case that best illustrates the other side of the story. That would be Michael Mann v. National Review and Mark Steyn. You may be familiar with this case as well, perhaps because I have covered its tortured history several times on this blog. Michael Mann, a professor at Penn State University, is the celebrated hero of the climate alarm movement, most famous for the iconic “Hockey Stick” graph that first appeared in papers he published back in 1998 and 1999. The Hockey Stick graph purports to give a dramatic demonstration of human effect on climate, and has been a key illustration used by the UN’s IPCC in its efforts to bring fear of climate catastrophe to the world’s populace. During the early 2000s, various skeptical scientists gradually dismantled the factual basis of the Hockey Stick; and then in 2009 there emerged the so-called Climategate emails, showing Mann and other climate scientists who were principal authors of IPCC reports conspiring to manipulate and truncate data to achieve the visual presentation they desired in the Hockey Stick graph. Before climate alarm turned into a religion, this kind of manipulation and truncation was what was known as classic scientific fraud.

The year 2011 is when the Jerry Sandusky scandal broke at Penn State. Sandusky was the assistant football coach who had been sexually abusing young men for years, and whose conduct was known but covered up by the Penn State administration. Also in 2011, Penn State came out with a report purporting to exonerate Mann for his conduct in generating the Hockey Stick graph. Then in 2012 Penn State finally issued a report revealing the years of coverup of the Sandusky matter. That report then inspired commentator Mark Steyn to write a July 2012 blog post, published by National Review, titled “Football and Hockey.” Excerpt:

Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing. If an institution is prepared to cover up systemic statutory rape of minors, what won’t it cover up? Whether or not he’s “the Jerry Sandusky of climate change”, he remains the Michael Mann of climate change, in part because his “investigation” by a deeply corrupt administration was a joke.

Mann then promptly (in 2012) brought a libel lawsuit against Steyn and National Review. Mann selected as his venue the Superior Court in the District of Columbia — DC’s equivalent of a state court. Without doubt, Mann selected this venue as the place of all those in the U.S. where he could get the most favorable judges and jury, given the propensity of DC voters to give well upwards of 90% of their votes to Democrats. In emails that have been produced in discovery in the case, Mann explicitly stated to his correspondent that his intent was to “ruin” National Review through the costs of the litigation. Although Mann’s funder has never been revealed, it is clear that some person or persons are paying major dollars to fund the litigation. In this March 18, 2021 post, National Review states that it has spent “millions of dollars” in its defense, a rather remarkable sum for a small conservative opinion journal.

On March 19, the DC Superior Court finally granted the motion of National Review to dismiss Mann’s case. The basis of granting the motion was — you guessed it — New York Times v. Sullivan. The reasoning was that Mann could not show “actual malice” against NR because Steyn was not an employee there and put up his blog post without anyone at NR reviewing it. The case against Steyn, by the way, continues. Steyn has filed a summary judgment motion that essentially addresses the question of whether his post was true — in other words, whether Mann’s graph was fraudulent.

You might be wondering how this case could have been kicking around for almost nine long years, and still be at the stage of motion practice. Excellent question, the answer to which is way too long for me to give in detail here. The short version is that NR tried to get the case dismissed under a statute in DC called the “anti-SLAPP” statute (SLAPP stands for “Strategic Lawsuit Against Public Participation”). The statute tries to protect commentary on issues of public import from libel claims, but obviously was unsuccessful in that goal here. Two motions by NR to seek dismissal under the anti-SLAPP statute ended up in the DC Court of Appeals, and one went to denial of certiorari at the Supreme Court. For more details, you can read Justice Alito’s dissent from the denial of cert here.

My bottom line is that, as bad as things are under the regime of New York Times v. Sullivan, they could be even worse if the crazed left, with near infinite funding from its billionaire class, had free rein to bring libel suits against every dissenting voice in favorable venues. I think the case for scientific fraud against Mann is a complete laydown, but the issues are so politicized that only a bright-line constitutionally-based rule has any chance to achieve a rough semblance of justice.