What Some Politicians Still Don’t Get: New York Times v. Sullivan
In early eighteenth-century America, defamation law took the view that “the greater the truth, the greater the libel,” especially when truthful libels concerned public officials. As Professor Geoffrey Stone recounted in his superb book Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism, when a Federalist Congress passed the Sedition Act of 1798, the Federalists (and the U.S. government) declared war on dissent in America. We have certainly come a long way since then. Courts vigorously protect political and social criticism. As the Court found in New York Times v. Sullivan, “erroneous statement is inevitable in free debate.” Thus, when the alleged defamation concerns public figures or matters on which the public has a justified and important interest, plaintiffs must prove “actual malice” before collecting damages. The Sullivan Court explained that this would give the media “breathing room” to publish “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” In Sullivan, the Court expressly recognized the unconstitutionality of the Sedition Act.
All old news, right? Well, maybe not. In a lawsuit filed this month, Steve J. Theriot, the interim president of Jefferson Parish, La., has accused anonymous online commentators of defamation, seeking damages for his embarrassment, emotional suffering, and damaged reputation. The Complaint alleges that the defamation included statements “that members of Jefferson Parish Government such as Mr. Theriot are unethical and deceitful.” According to the Times-Picayune, the comments were “mostly reactions to news stories about a scandal involving a federal criminal investigation of former Parish President’s aide for self dealing in public contracts. A commentator named in the lawsuit lambasted the Parish Council for selecting Theriot: “Worse than that . . . golden boy Theriot who is supposed to be the know all and king of ethics and ethics laws took the appointment knowing what happened.” Another commentator wrote: “Theriot, just another Jefferson Parish politician thug mobster trained by his mentor John Alario, dressed up in a facade of respectability by a corrupt Louisiana Legislator.” Theriot now seeks the names of 11 posters from Nola.com, the online home of The Times-Picayune in New Orleans.
Unmasking the posters would surely interfere with the kind of breathing space sought in New York Times v. Sullivan and disrupt our commitment to anonymous speech. Even under a permissive approach to a “John Doe” subpoena request, the court would have to find that the defamation suit would survive a motion to dismiss or had been brought in good faith. This seems a daunting task. The comments amount to a mixture of political opinion and hyperbole, reactions to a report on political corruption. Because the remarks can be reasonably interpreted as political rhetoric and not as allegations of specific wrongdoing, the court should deny the request to unmask the posters and dismiss the suit. In considering John Does subpoenas, courts have been most willing to protect the anonymity of online speech that contributes to public debate. The court would do well to read Nathaniel Gleicher’s superb Yale Law Journal Note entitled John Doe Subpoenas: Toward a Consistent Legal Standard, which illuminates the array of John Doe approaches and proposes a standard that would ensure heightened protection for speech on public controversies involving public figures.
H/T: Greg Young