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Two Supreme Court justices could have a big impact on the freedom of the press

NOEL KING, HOST:

Two Supreme Court justices are open to rewriting a 50-year-old ruling that protects the press from lawsuits. How would that change journalism? Here's NPR's David Folkenflik.

DAVID FOLKENFLIK, BYLINE: In recent years, it became something of a rallying cry for a certain candidate.

(SOUNDBITE OF ARCHIVED RECORDING)

DONALD TRUMP: I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.

(CHEERING)

FOLKENFLIK: That was Donald Trump on the campaign trail in 2016. And he garbled the facts there. But regardless, he wasn't talking about a law, exactly, but a U.S. Supreme Court ruling from 1964 in a case called New York Times v. Sullivan.

GENEVIEVE LAKIER: It is one of the core, I would say, canonical, First Amendment cases of the 20th century.

FOLKENFLIK: Genevieve Lakier teaches courses on freedom of speech and constitutional law at the University of Chicago. At the time of the ruling, she says...

LAKIER: The law professor Harry Kalven said the decision was an occasion for dancing in the streets.

FOLKENFLIK: Because the justices set a very high bar for public officials to be able to sue for defamation. Sullivan was L. B. Sullivan, a public safety commissioner in Montgomery, Ala., who collaborated with the Ku Klux Klan in suppressing civil rights activists. Sullivan sued the Times over the publication of an ad protesting the treatment of the Reverend Martin Luther King Jr. Under Alabama law, Sullivan only needed to prove the ad had mistakes in it - it did, but not serious ones. The U.S. Supreme Court sided with the Times, saying the First Amendment sought to encourage robust public debate. Two decades ago, however, First Amendment law professor David Logan crunched some numbers and concluded that Sullivan made it hard to hold news organizations accountable for their false claims.

DAVID LOGAN: At that point, I said something in an article in the Virginia Law Review - said, you know, the chances of a media defendant paying substantial damages for a libel case is like being hit by lightning.

FOLKENFLIK: Times have changed since then and not, in Logan's judgment, for the better. He suggests new limits to the Sullivan ruling.

LOGAN: It would be a more fair system with more deterrents of sloppy, hotheaded publication driven by the 24-hour news cycle and the competitiveness to get there first. And if the news cycle slows down by an hour or two and people are incentivized to do a little more fact-checking, I think that's for the good.

FOLKENFLIK: Justice Clarence Thomas made it clear a few years ago he'd happily scrap New York Times v. Sullivan altogether. Professor Logan's legal writings have now inspired Justice Neil Gorsuch to argue for revisiting the Sullivan ruling. Both Thomas and Gorsuch are conservatives. Yet before she joined the court, Justice Elena Kagan, a liberal, had published her own doubts about the court's position. Professor Lakier says some changes could be valuable. But she warns that erasing Sullivan's protections for the press would be perilous.

LAKIER: So in that world, we would worry that journalists, bloggers, anyone who is reporting news are going to be very unwilling to report on controversial news because they will know that as soon as they do so, they may be facing libel liability. And this isn't a mere theoretical concern.

FOLKENFLIK: Eve Burton says she sees cases spiking up. She's is the chief legal officer for the Hearst corporation, which owns newspapers, magazines and television stations.

EVE BURTON: It used to be people would sue you because they felt that you got the story wrong.

FOLKENFLIK: Burton says public officials accused of wrongdoing now sue the media as part of a PR offensive. And she says wealthy backers bankroll plaintiffs to drive news organizations out of business, though, not all suits are technically for defamation.

BURTON: Now lawsuits are just part and parcel of daily life.

FOLKENFLIK: Republican Congressman Devin Nunes sued Hearst's Esquire Magazine. Trump recently sued The New York Times in his own name, the first time he's done so after many threats. And full disclosure, NPR is facing such lawsuits, and so am I. Watering down New York Times v. Sullivan could make it easier to file them.

David Folkenflik, NPR News. Transcript provided by NPR, Copyright NPR.