September 3rd, 2015

Recap:
We started this class by talking about what is not included as part of the
freedom of speech
o Ex: you beating someone up is not protected under freedom of
speech
o For a long time, being sharply critical of the government was
treated that way. It wasnt part of the freedom of speech.
Wigmore, after Abrams, said of Justice Holmes dissent: this
isnt freedom of speech; it is freedom of thuggery. At a time of
war, we cant let people undermine the war effort by
destroying weaponry so they also shouldnt undermine
morale.
o Before Brandenburg, there was no imminence requirement
(Schenck, Abrams).
Today we will discuss another exception to the freedom of speech, which
has also been narrowed over time False Statements of Fact
Policy: How do we figure out where these exceptions come from?
Distinction between Facts and Opinions
Liable and defamation laws look to the factual assertions that are being
made, whether implicitly or explicitly (not just to the literal words)
Sometimes opinions can be treated as a factual opinion (Ex: I think you
should never stay married to someone who cheats on you. Then you say,
I agree, X should divorce Y. While you havent said that Y cheated, you
are implying it).
In some situations, if you call someone a blackmailer, you are accusing
him of engaging in the crime of blackmail. But, depending on the context,
it may or may not be a factual assertion.
False Statements of Fact
Brandenburg was a change in the law. Pre-Brandenburg you had much
less room for criticism. NY Times v. Sullivan was also a very significant
change in the law. Before NY Times v. Sullivan, the libel and defamation
were completely outside of the freedom of speech. You could get money
damages against someone as long as you proved by mere preponderance
of the evidence that your reputation was hurt (strict liability). You werent
required to prove negligence or falsity. That is still the regime in lots of
other countries, but it is no longer the regime in this country.
NY Times v. Sullivan (SCOTUS 1964)
Facts: Sullivan says statements in an advertisement carried by the NY
Times had libeled him. He says there are inaccuracies in the
advertisement. The state action is the Alabama decision to award Sullivan
damages ($500,000). Affirmed by the Alabama Supreme Court.
Here, the Court chose to protect false statements by reversing.
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September 3rd, 2015

The Court makes it clear that governments can never be libeled. They
arent people, their reputation cant be harmed, so you get to lie about
the government. Government is uniquely disabled from preventing itself
from being lied about.
Policy: What is the best argument against application of the 1A to this
case?
o These statements add no value
o Using cost-benefit analysis, there could be significant costs to the
person and there are no measureable benefits for these false
statements
o We are not adding to the marketplace when people lie
o By allowing this, youre undermining the incentive for the
newspapers that have the resources to do any type of fact-checking
Counter: the marketplace will weed out tabloids that have
been confirmed liars
o Why have the costs be entirely placed on the person whose
reputation has been harmed? We have well-financed newspapers
and not as well-financed invidious person, why is the cost on the
person?
o No other country has adopted this regime and theyre doing fine.
This is unprecedented. Everyone has always understood that libel
and defamation are outside of the scope of the 1A.
o Once youre reputation is damaged, its very hard to get it back.
Justice Black and Goldberg concurred: libel suits should be categorically
prohibited. Its speech and any restrictions are unconstitutional
o Justice Black: we arent being protective enough
o Cites Garrison v. Louisiana, which explain why any libel liability
should be allowed
What can Sullivan do now? Sullivan has to show they acted with
knowledge they were printing false claims or that they had reckless
disregard (this is high barrier he wont be able to do this)
One could say that the central meaning of the 1A is protection of the
criticism of government officials. This case advocates for a robust ability
to criticize officials. They wont like it, but thats their problem.
Majority suggests that we the people need information (robust discussion,
space to be critical) because its actually how we evaluate the job the
government is doing.
The first Congress filed with framers of the Constitution passed the Alien
and Sedition Acts, under which individuals were arrested, prosecuted, and
convicted for criticizing the government.
o Under President Jefferson, this was repealed. All those convicted
were returned their fines and pardoned.
o Although the Sedition Act was never tested in this Court, the attack
upon its validity has carried the day in the court of history.

September 3rd, 2015

Governor v. Professor Problem (pg. 63)

Facts: Professor hears the Governor had sex with a 16-year-old girl. He
mentions this in a 1A Law class. He doesnt like the Governor and enjoys
saying bad things about him. The Governor sues the Professor for slander.
First: who was this statement said about? Public figure or private figure?
o Here, it is a public figure. His position invites public scrutiny (like
Sullivan).
o Is the mayor of Durham a public figure? Yes. Chief of police? Yes. A
captain in the police force? Not as obvious. A secretary in the police
station? Probably not. The custodian? No. You work for the
government, but youre not a public figure because your position is
not one that would invite public scrutiny and you dont have such a
power or importance that the public has an independent interest in
your abilities.
o Lower courts have found it almost impossible to police this
distinction. Its hard to do this line drawing. Lower courts have erred
on the side of finding people to be public figures, which means its
harder for people to bring lawsuits when there are allegedly false
statements made.
o The Court in Gertz: those classified as public figures have thrust
themselves to the forefront of particular public controversies in
order to influence the resolution of the issues involved. In either
event they invite attention and comment.
o Example of someone who didnt thrust themselves forward, but are
still public figures: Sasha and Malia Obama, children of celebrities
o You can be a public figure for all purposes or just some purposes.
Second: what is the topic of the speech? Is it a public concern or private
concern?
o Dun & Bradstreet: focusing on sexual practices, thats a matter of
private concern. But, that was written before Monica Lewinsky, so
that might not be true today
o The line of public versus private concern is drawn very differently
today and in this country in particular
o Once could argue that if the person ran on a certain campaign and
then act inconsistently, then that makes it rise to the level of public
concern
o What is a private concern? Health
o The difficulty is that you can argue and say whatever interests
people is a public concern. The Court has not said something that
dramatic yet.
o Who has the burden? Now, the plaintiff has to prove the falsehood.
Under common law, the defendant had to prove truth.

September 3rd, 2015

Assuming the Governor is a public figure and this is a matter of public

concern, so the actual malice test applies. What do we want to know to
satisfy the actual malice test?
o Malice is a misnomer here
o Governor must prove: the Professor knew it was false or he acted
with reckless disregard
We would need to know more about how he came across this
conversation
Also ask, did the Professor put it forward for its fact value?

Policy Discussion
Justice White (Dun & Bradstreet) concurrence: we could have the rule that
the rest of the world uses and still have a pretty vigorous press like all
these other countries have.
One critique of NY Times v. Sullivan is that we are protecting way too
much speech. The other argument (Hugo Black side) is that we are
protecting too much.
Thinking about this as the marketplace of ideas, theres a reasonable
argument that false statements add nothing to the marketplace of ideas.
Since NY Times v. Sullivan, a number of other countries have explicitly
considered this regime Australia, New Zealand, Canada, lots of Europe,
and not one has adopted our regime. Why not?
o Maybe its because the leaders of the countries want to protect
themselves
o Maybe its because we think there might be a cost to this that
people think their reputation is going to be trashed and itll be hard
to get it back
Private figures dont have the ability to get their reputation back, but
public figures do.
o Gertz: you assume the risk by being a public figure and has a better
ability to counteract speech that hurts their reputation
o Gertz, Brennan dissenting: denials and contractions are not hot
news and rarely receive the prominence of the original story. No one
can get their reputation back, not even public figures
o Gertz, White dissenting: someone has to bear the costs. Lets have
the publisher pay that costs, rather the person against whom the
false statement is made. The press today is vigorous and robust
already. Libel suits will not refrain the publishing the truth there is
no evidence that now, all of sudden, the press will stop printing if
there is a different libel and defamation regime. Also, damage to
reputation is hard to prove so requiring actual proof will destroy any
chance of actual compensation. This will deter people from entering
the public arena, even though they could make a positive
contribution because they dont want their reputation falsely
attacked.
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September 3rd, 2015

False statements serve no purpose whatsoever in furthering
the search for truth. We are not adding the marketplace of
ideas with falsehoods.
It really matters what your default is. Whites is that libel and
defamation laws are permissible.
Should debates about free speech be driven at all by empirics? And if so,
how should those empirics be gathered and used? Are there things that
arent subject to empirical verification?
Dont lose sight of the fact that there are real world consequence to this!
Its really hard for a public figure to win a case when false statements are
made about them. There are really high burdens. You have to be really,
really reckless.

Summary of different kinds of false statements (pg. 62):

Said about
Topic
Mens rea required in this situation
Public figure
Public concern Actual malice (NYT)
Private figure
Public concern Compensatory damages: negligence
Other remedies: actual malice (Gertz)
The government
Public concern All liability forbidden (NYT)
No particular
Public concern Sometimes, all liability forbidden (Alvarez);
person
otherwise, actual malice
Any person
Private
Negligence enough (Dun & Bradstreet),
concern
strict liability might also be possible
Next class:
Professor v. Governor problem
How we should understand exceptions? Should we have narrow categories
for exceptions to free speech?
What does freedom of the press add to freedom of speech? Use Citizens
United