Professor Lakier Washington Post op-ed today:
[R]Returning to the Pre-Sullivan Standard would have its problems. Most important, it would leave journalists and other public speakers vulnerable to the kind of politically motivated litigation that the Times faced in 1964, when, after the newspaper published an advertisement containing minor factual inaccuracies about civil rights movement in Alabama, a phalanx of segregationist forces tried to use libel suits to run the paper out of business—and almost succeeded. The return to this situation should not be seen as a good thing by anyone who is concerned about independent media in America.
However, Sullivan The rule is not all that can be used to defend press freedom and avoid vexatious litigation. Other changes can be made in the law to reduce costs and make it easier for officials and public figures to protect their reputations when sued.
Most obvious among these are damage caps, which could be used instead of the actual malice rule to limit the possibility that libel lawsuits could drive media organizations out of business…. A stronger statutory protection at the state-federal level against politically motivated litigation could help to reconcile reputation protection and press freedom in this age of the Internet. Court procedure changes could reduce discovery time and cost and shorten libel trial lengths. This would allow media companies to spend less energy, money and time defending their cases. Venue rules can help media companies avoid being brought before hostile juries outside of the state.
These reforms are not being discussed seriously, but instead, the debates over the future of the libel laws overwhelmingly center on the Sullivan Standard, but not affected by the facts and rules surrounding it. It’s perhaps not surprising that the rule has become an iconic symbol of American constitution law. This rule is an American emblem for free speech exceptionalism, and it’s a source pride. It’s also an unfortunate result of historical events. But we don’t need to. Sullivan limit our imagination of how First Amendment law could better serve the public interest in a vastly different media environment from the one in which the decisionwas originally handed down.