Currently in FQ there is a discussion going on about Palin v New York Times. It is mentioned several times that is an attempt to get the Court to reconsider Sullivan.
What if they did? Really lowered the bar for libel/slander/general defamation. Seems to me it should be the Right that should be afraid of this. Given what they say every day about the Left, I’d think the lawsuits would all be aimed at Fox, not the Times. What says the Teeming Millions?
Why do you think the Right wouldn’t be suing the Times, Post, et al, every time they got butthurt by an editorial?
The New York Times can afford lawyers and settlements. So can FoxNews.
But most American newspapers are on the brink of dissolution. The effect of burdening them with the legal costs of British-style journalism would be fewer newspapers, which means less independent oversight of government. And remaining newspapers, afraid of legal costs, would hesitate to investigate local politicians and businesspeople.
Someone may say that small town newspapers will die anyway. But for medium sized cities, this would often be the difference.
I’m not really crazy about the concept of actual malice, but it seems to be a good-enough solution. I say let the conservatives give it their best shot. Roughly 99% of the nutjob accusations come from that side, and I’d love to see them all sued into bankruptcy.
Mind expanding on this? I understand that the British version of Free Speech is considerably more, shall we say, fluid, than the American version, but I’m not really up to speed on the specifics.
I think I’d have to know what the new standard would be before I’d know if it were better.
A lower standard for public figures than actual malice along with strong anti-SLAPP protections to keep public figures/rich people from using defamation suits to bully people might be a better situation on balance.
Except that the anti-slapp protection would have to come from legislation, which means that in conservative states, there would be no protection. (I am discounting entirely the possibility that Congress could pass anything meaningful). So if someone wanted to ruin a newspaper, they would just forum shop into a place with no protection.
Try:
How UK libel law warps journalism: A case study
And:
How Britain’s Crazy Libel Laws Created the News of the World Monster
The conservative position is to not change things for the sake of change, but to do so reluctantly, and only when it’s necessary. Right?
So, what’s the justification for changing Sullivan? It creates a heightened standard for public figures to provide an important implementation of the 1st Amendment’s freedom of the press provision.
One reason for this different standard was that public figures would be more able to respond than private individuals, in that they have their own public channels to address the audience.
I would tend to think that this is even more true than it was when Sullivan was first written. Public figures can directly communicate with the masses - they no longer even need the media to serve as an outlet.
The Times wrote something objectionable about Palin. It’s absurd to think that she doesn’t have a platform to respond in kind.
I agree. This is rare for us. 
But remember what caused the Sullivan case. Alabama was basically outlawing criticism of racial segregation in the south by allowing plaintiffs, local sheriffs and judges, to sue for libel in state courts and getting enormous verdicts.
And what was at issue wasn’t an editorial in the NY Times, but an advertisement that someone else had taken out. The problem is apparent on its face. No newspaper or website or anything could pay all of the judgments in an unfriendly forum. Free press would be destroyed.
But I think just to cover both sides of the issue, people on my side say something like, “Yeah, but these businesses are abusing this by being actually malicious and false, but saying neener, neener, you can’t prove it, so we win.” I still think that the best course is to say that Palin can fire back at the Times with her own speech.
As a modern example, imagine a world without the Sullivan case. Jeff Bezos says in an interview that Amazon won’t sell rebel flags because they represent white supremacism.
Well, then just get every plaintiff’s lawyer in every county from West Virginia to Oklahoma and all points in between to get a local jury and convince them that what Bezos said was an absolute libel on their good southern heritage. And how much should you award, ladies and gentlemen? Just ask yourself what would punish a man worth over $100 billion. Two billion? That seems fair.
A couple billion here and there adds up to real money, even for Bezos.
The meaning of words changes over time.
Then there’s another old definition of conservatism which involves returning to a prior era. That kind of conservative might want to return to the year before Sullivan, when the top U.S. marginal income tax rate was 91 percent and union membership was near-peak.
As I said, definitions change.
I think that is unfair. I think the best way to describe a conservative as I am, and as I know them is that basically change will happen as it always does. But if we have done something the same way and for a very long time, then that still doesn’t mean we don’t change it, but we don’t rush into it. We typically view that the old way has worked “well enough” and that the new thing may be faddish and not have been subject to good testing.
So I don’t think we look at change reluctantly but pragmatically. X has served human beings well for 100 years. Are we changing that? We’ll let’s give it time to play out before rushing into it. And it doesn’t mean anything so silly that we believe because of a possible disagreement about Sullivan that thus ALL things 1963 must be the way to do everything for all time. That’s a pretty silly characterization.