Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 1 of 27

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SARAH PALIN, an individual,

No. 17 Civ. 4853

Plaintiff,

Hon. Jed S. Rakoff

– against –

ECF Case

THE NEW YORK TIMES COMPANY,
a New York corporation, and JAMES
BENNET, an individual,
Defendant.

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

BAJO   CUVA   COHEN   TURKEL
100 North Tampa Street, Suite 1900
Tampa, Florida 33602
Telephone: (813) 443-2199
Facsimile: (813) 443-2193
and
GOLENBOCK EISEMAN ASSOR BELL
& PESKOE LLP
711 Third Avenue
New York, NY 10017
Telephone: (212) 907-7300
Facsimile: (212) 754-0330
Facsimile: (212) 754-0330
Attorneys for Plaintiff Sarah Palin

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 2 of 27

TABLE OF CONTENTS
Table of Contents .......................................................................................................................... i
Table of Authorities ..................................................................................................................... ii
I.

Introduction ..................................................................................................................... 1

II.

Stare Decisis Does Not Mandate Continued Adherence to the Actual
Malice Rule ...................................................................................................................... 6

III.

Precedent Establishing the Actual Malice Rule Should be Overruled ............................. 8

IV.

The Actual Malice Rule Arose from Distinguishable Facts and Should Not
Be Applied ...................................................................................................................... 13

Certificate of Service ................................................................................................................ 21

i

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 3 of 27

TABLE OF AUTHORITIES
Page(s)
CASES
American Civil Liberties Union v. Reno, 929 F.Supp. 824 (E.D. Pa. 1996),
judgment aff’d, 521 U.S. 844 (1997) ...................................................................................... 2
Bank of Or. v. Indep. News, Inc., 670 P.2d 616 (Or. Ct. App. 1983) ......................................... 17
Blankenship v. Manchin, 471 F.3d 523 (4th Cir. 2006).............................................................. 17
Blum v. State, 255 A.D.2d 878 (N.Y. App. Div. 1998) .............................................................. 17
Bostock v. Clayton County, Georgia, 2020 WL 3146686 (2020) ........................................... 9, 10
Burnett v. Coronado Oil & Gas Co., 285 U.S. 393 (1932) .......................................................... 7
Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883) ............................................... 11
Commonwealth of Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880) .................................. 11
Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967).................................. 5, 6, 7, 12, 13, 14, 15, 18, 19
De Jonge v. Oregon, 299 U.S. 353 (1937).................................................................................. 15
Dennis v. U.S., 341 U.S. 494 (1951) ........................................................................................... 13
Dilworth v. Dudley, 75 F.3d 307 (7th Cir. 1996) ........................................................................ 16
Drews v. Michelson, 327 N.W.2d 723 (Wis. Ct. App. 1982) ..................................................... 17
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) ....................... 7, 9, 20
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ........................... 4, 5, 6, 7, 8, 9, 10, 12, 13, 14,
16, 18, 19, 20
Gilbert v. WNIR 100 FM, 756 N.E.2d 1263 (Ohio Ct. App. 2001) ............................................ 17
Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) ................................ 1
Henderson v. Van Buren Pub. Sch. Superintendent, 644 F.2d 885, 6 Med.
L. Rptr. 2409 (6th Cir. 1981) ................................................................................................ 17
Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 853 N.E.2d 770 (Ill.
App. Ct. 2006)....................................................................................................................... 17
In re Ex Parte Commonwealth of Virginia, 100 U.S. 339 (1879) .............................................. 11

ii

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 4 of 27

Jaffree v. Board of Sch. Comm’rs, 554 F.Supp. 1104 (S.D. Ala. 1983) ....................................... 7
Jaffree v. Wallace, 705 F.2d 1526 (11th Cir. 1983) ..................................................................... 7
Janus v. American Federation of State, County, and Mun. Employees, Council 31,
138 S.Ct. 2448 (2018) ........................................................................................................... 10
Kimble v. Marvel Ent., LLC, 576 U.S. 446 (2015) ....................................................................... 7
Kiseau v. Bantz, 686 N.W.2d 164 (Iowa 2004) ......................................................................... 17
Knight first Amendment Institute at Columbia Univ. v. Trump, 928 F.3d 226 (2d
Cir. 2019) .............................................................................................................................. 15
Lee v. City of Rochester, 174 Misc. 2d 763 (N.Y. Sup. Ct. 1997) .............................................. 17
Lluberes v. Uncommon Productions, LLC, 663 F.3d 6 (1st Cir. 2011) ........................................ 1
Mahoney v. State, 236 A.D.2d 37 (N.Y. App. Div. 1997) .......................................................... 16
Marcone v. Penthouse Int’l Magazine for Men, 754 F.2d 1072 (3d Cir. 1985) ......................... 17
Mathis v. Cannon, 573 S.E.2d 376 (Ga. 2002) ........................................................................... 16
McKee v. Cosby, 139 S.Ct. 675 (2019) ......................................................................... 8, 9, 10, 20
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) .................................................... 5, 6, 18, 20
Moss v. Stockard, 580 A.2d 1011 (D.C. 1990) ........................................................................... 17
NAACP v. Button, 371 U.S. 415 (1963)........................................................................................ 8
New Prime Inc. v. Oliveira, 586 U.S. –––,139 S.Ct. 532, 202 L.Ed.2d 536 (2019) ..................... 9
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .................................. 5, 6, 7, 8, 10, 11, 12,
13, 14, 15, 18, 19, 20
Northern Securities Co. v. U.S., 24 S.Ct. 436 (1904) ................................................................... 9
Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014) .................................. 1, 19
Orr v. Argus-Press Co., 586 F.2d 1108 (6th Cir. 1978) ............................................................. 16
Patterson v. McLean Credit Union, 491 U.S. 164 (1989) ............................................................ 7
Pegasus v. Reno Newspapers, Inc., 57 P.3d 82 (Nev. 2002) ...................................................... 17
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) .................................................... 7

iii

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 5 of 27

Price v. Time, Inc., 416 F.3d 1327 (11th Cir. 2005) ................................................................... 17
Riddle v. Golden Isle Broad, LLC, 621 S.E.2d 822 (Ga. Ct. App. 2005) ................................... 17
Robertson v. Baldwin, 165 U.S. 275 (1897) ............................................................................... 13
Rodriguez v. Nishiki, 653 P.2d 1145 (Haw. 1982)...................................................................... 17
Rosenblatt v. Baer, 383 U.S. 75 (1966) ........................................................................................ 5
Sewell v. Trib Publ’ns, Inc., 622 S.E.2d 919 (Ga. Ct. App. 2005) ............................................. 17
Shelley v. Kraemer, 334 U.S. 1 (1948) ....................................................................................... 11
Smith v. Allwright, 321 U.S. 649 (1944) ....................................................................................... 7
Stare Decisis, 49 Colum. L. Rev. 735 (1949) ............................................................................... 7
State v. Phillips, 540 P.2d 936 (Utah 1975) .................................................................................. 7
State v. Taylor, 664 P.2d 439 (Utah 1983) ................................................................................... 7
Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir. 1980) ................................................. 17
Swate v. Schiffers, 957 S.W.2d 70 (Tex. Ct. App. 1998) ............................................................ 17
Terminiello v. Chicago, 337 U.S. 1 (1949) ................................................................................. 15
Thomas v. Tel. Publ’g Co., 929 A.2d 993 (N.H. 2007) .............................................................. 17
Time, Inc. v. Hill, 385 U.S. 374 (1967)......................................................................................... 6
Wilson v. Daily Gazette Co., 588 S.E.2d 197 (W. Va. 2003) ..................................................... 17
WJLA-TV v. Levin, 647 S.E.2d 383 (Va. 2002) .......................................................................... 17
OTHER AUTHORITIES
1 Law of Defamation § 1:21 (2d ed.) (Protection of Reputation—Purposes) .............................. 5
2 Internet Law and Practice § 24:15 ........................................................................................... 15
20 Am. Jur. 2d Courts § 125 ......................................................................................................... 7
Aaron Perzanowski, Relative Access to Corrective Speech: A New Test for
Requiring Actual Malice, 94 Calif. L. Rev. 833 ................................................................. 4, 5

iv

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 6 of 27

Ann E. O’Connor, Access to Media All A-Twitter: Revisiting Gertz and the Access
to Media Test in the Age of Social Networking, 63 Fed.Comm. L.J. 507 ............................. 14
California Code of Civil Procedure § 425.16 (California) ......................................................... 20
Fla. Stat. § 768.295 (Florida) ...................................................................................................... 20
Hatherine D. Gotelaere, Defamation or Discourse? Rethinking The Public Figure
Doctrine on the Internet, 2 Case W. Reserve J.L. Tech. & Internet 1 (2011) ........................ 4
Jeff Kosseff, Private or Public? Eliminating the Gertz Defamation Test, Journal
of Law, Technology & Policy [Vol. 2011] ........................................................................... 16
Marc A. Franklin, Suing Media for Liable: A Litigation Study, 1981 Am. B.
Found. Res. J. 795, 801, 829 ................................................................................................... 2
Marc A. Franklin, Winners and Losers and Why: A Study of Defamation
Litigation, 1980 Am. B. Found. Res. J. 455, 471, 489, 498 ................................................... 2
Mary-Rose Papandrea, The Story of New York Times Co. v. Sullivan, Boston
College Law School Legal Studies research Series, May 30, 2012........................................ 8
Michael L. Rustad, Sanna Kulevska, Reconceptualizing the Right to Be Forgotten
to Enable Transatlantic Data Flow, 28 Harv. J.L. & Tech. 349 (2015)................................ 18
Nat Stern, Unresolved Antithesis of the Limited Public Figure Doctrine, 33 Hous.
L. Rev. 1027 (1996) ................................................................................................................ 2

v

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 7 of 27

Plaintiff, Sarah Palin (“Gov. Palin”), by counsel and pursuant to Federal Rule of Civil
Procedure 56, moves for the entry of a partial summary judgment against Defendants, The New

York Times Company (“The Times”) and James Bennet (“Bennet”) (collectively, “Defendants”),
holding that Plaintiff is not required to prove the defamatory statements at issue in this case were
published with “actual malice.”1 In support, Gov. Palin states as follows:
I.

Introduction
Through the lens of the actual malice rule, Sarah Palin’s defamation claim against The

Times and James Bennet is viewed no differently than a claim by someone like Darnella Frazier
against an anonymous internet troll. The rule applies to plaintiffs irrespective of the popularity
of their beliefs and shields individual defendants as well as the press.2 Unbeknownst to many,
an exponentially increasing number of people arguably could be subjected to the rule’s
“elusive3” standard of fault in circumstances beyond contemplation when the rule came into
existence.
The actual malice rule was judicially-imposed to solve problems peculiar to a bygone era,
long-before the Internet and social media took hold of American society. Its justifications rest on
incorrect and outdated beliefs about assumed risk and access to methods of mass communication
which must be used to decide who must suffer the rule’s “heavy, often insurmountable4”

1

Plaintiff reserves all rights and arguments concerning the actual malice issue, including but not
limited to, her right to prove actual malice (if necessary) and oppose Defendants’ Motion for
Summary Judgment on actual malice by demonstrating a reasonable jury could find the
statements at issue in this case were published with actual malice.
2
Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284, 1291 (9th Cir. 2014) (“[T]he First
Amendment defamation rules in Sullivan and its progeny apply equally to the institutional press
and individual speakers”) (collecting cases).
3
Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 686 (1989).
4
Lluberes v. Uncommon Productions, LLC, 663 F.3d 6, 14 (1st Cir. 2011).
1

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 8 of 27

burden.5 Not surprisingly, the rule’s effects have transgressed far afield from its intended
purpose; prominent among them self-professed immunity for media companies like The Times
and the intimidation of plaintiffs with legitimate claims.6
It has become clear that the rule is obsolete and unworkable, incapable of consistent
application, and holds no footing in the modern speech landscape. Defamation plaintiffs should
not be subjected to its unwarranted burden. This is not to say the importance of protecting
speech from governmental censorship has diminished. Rather, the foundation of the actual
malice rule has eroded as society, technology, and the platforms for free speech evolved. Gone
are the days when a small group of powerful people enjoyed exclusive influence and control over
the public debate through unmatched access to a limited means of communication with the
American public. Now, the Internet and social media have given a loud and far-reaching voice
to virtually every citizen and empowered them with an equal opportunity to decide what
information and ideas flow to and from their fellow citizens and to shape the public debate.
Even as far back as 30 years ago, the Internet’s impacts were obvious:

“It is no

exaggeration to conclude that the Internet has achieved, and continues to achieve, the most
participatory marketplace of mass speech that this country—and indeed the world—has yet
seen.” See American Civil Liberties Union v. Reno, 929 F.Supp. 824, 881 (E.D. Pa. 1996),
judgment aff’d, 521 U.S. 844, 851, 853 (1997) (“Anyone with access to the Internet may take

5

“In practice, this requirement poses an insurmountable barrier in all but a relative handful of
egregious cases.” See Nat Stern, Unresolved Antithesis of the Limited Public Figure Doctrine, 33
Hous. L. Rev. 1027, 1028 (1996) (citing Marc A. Franklin, Suing Media for Liable: A Litigation
Study, 1981 Am. B. Found. Res. J. 795, 801, 829 (study results demonstrate “trial court decisions
overwhelmingly favored defendants”); Marc A. Franklin, Winners and Losers and Why: A Study
of Defamation Litigation, 1980 Am. B. Found. Res. J. 455, 471, 489, 498 (analyzing a study of
defamation decisions and concluding that “the most striking point shown . . . is the plaintiffs'
notable lack of success”)).
6
See Plaintiff’s Statement of Material Facts (“SMF”) ¶ 1.
2

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 9 of 27

advantage of a wide variety of communication and retrieval methods…[and]…with a computer
connected to the Internet can ‘publish’ information.”). Since then, these impacts have continued
to expand.
One need only look to the growing number of movements spawned by ordinary citizens
without assistance from the press—Arab Spring, Occupy Wall Street, Black Lives Matter, the
Woman’s March, March for Our Lives7—to see how much free speech has progressed. Most
recently, a 17-year-old girl from Minneapolis altered the course of American history by using
Facebook to post a video of George Floyd being murdered by police.8
The current speech environment is incomparable to what confronted the Supreme Court
in the 1960’s and 1970’s. Then, Martin Luther King Jr. was at the mercy of the press to
disseminate his “Letter From Birmingham Jail”—which The Times declined to publish.9 Now,
one person with a cell phone has the power to instantly start a worldwide movement without any
media assistance. One’s ability to be heard by the masses, effectuate change, and criticize the
government is no longer dependent upon a centralized group of newspapers, magazines, and
broadcasters.
The opportunities, access, and audience available through the Internet were unimaginable
when the actual malice rule was created. And when the rule was extended to public figures, no
one could have anticipated the extraordinary number of people who use the Internet and social
media on a daily basis to inject themselves into and influence the resolution of countless issues
and controversies; all of whom arguably may be crossing into “public figure” territory.

7

See Plaintiff’s SMF ¶ 2.
See Plaintiff’s SMF ¶ 3.
9
See Plaintiff’s SMF ¶ 4.
8

3

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 10 of 27

It is a mistake to instinctively apply the actual malice rule while ignoring the Internet’s
impacts and the rule’s unanticipated potential consequences.10

An intellectually honest

evaluation of the justifications for the rule in the context of Internet and social media use shows a
far greater number of people seemingly fall within the category of speakers that could be deemed
to have sacrificed their ability to adequately defend their reputations.11 This includes people who
engage in speech similar to that of Darnella Frazier12, Greta Thunberg13, Parkland students14, and
countless others; presumably unaware doing so could subject them to the same standard
Defendants seek to impose on Sarah Palin.
The continued use of the actual malice rule ignores the existing imbalance between the
right to protect one’s reputation and the need to prevent government suppression of speech.15
The Internet substantially weakened the free speech side of the rule’s required balancing test;
while the instantaneous, autonomous access it provides all Americans to free expression16

10

“The traditional public figure doctrine, as formulated through Supreme Court jurisprudence, is
unable to meet the needs of the Internet. In an age where virtually anyone can create an online
profile and a video can go ‘viral’ in a matter of hours, it is exceedingly difficult to analyze
whether an individual, through his online activity, has voluntarily assumed the public spotlight
and accompanying criticism such that he should be subject to the actual malice standard in a
defamation suit.” Defamation or Discourse? Rethinking The Public Figure Doctrine on the
Internet, Hatherine D. Gotelaere, 2 Case W. Reserve J.L. Tech. & Internet 1 (2011).
11
Actual malice is a “substantial abridgment” of reputational rights and “exacts a
correspondingly high price from the victims of defamatory falsehood [as] many deserving
plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier
of the New York Times test.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 342-343 (1974).
12
See FN 8.
13
See Plaintiff’s SMF ¶ 5
14
See Plaintiff’s SMF ¶ 6
15
Gertz, 418 U.S. at 343 (needs of the press must be balanced against an individual’s right to
protect their reputation)
16
“New technologies, most notably the Internet, democratized communication in ways
inconceivable to the Gertz court…Where traditional media allowed for one-to-many distribution
of information, the Internet facilitates many-to-many communication. On the Internet, for better
or worse, each of us can have our say.” Aaron Perzanowski, Relative Access to Corrective
Speech: A New Test for Requiring Actual Malice, 94 Calif. L. Rev. 833, 834.
4

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 11 of 27

(including the dissemination of false information and defamatory speech) tilted the scales even
further in favor of protecting human dignity.

“The protection of reputation has taken on

additional gravity since the development of the Internet. It is now easier to defame another
person than at any time in world history, as the Internet makes everyone a potential mass-media
publisher.” See 1 Law of Defamation § 1:21 (2d ed.) (Protection of Reputation—Purposes).
This imbalance continues to grow as the number of “private” people potentially exposing
themselves to “public figure” status increases and social media permeates the fabric of more
people’s daily lives.
What this all shows is that the Defendants seek to impose the actual malice standard on
Plaintiff in substantially dissimilar circumstances to those present in New York Times v. Sullivan,
376 U.S. 254 (1964), Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967), and Gertz v. Robert Welch,
Inc., 418 U.S. 323 (1974).17 The right to protect one’s reputation and recover compensation for
the permanent harm Internet defamation causes outweighs the outmoded policies from which the
actual malice rule arose. Continuing to apply the rule subverts human dignity18 even though the
justifications for doing so have ceased to exist. What’s more, as explained in Section IV, the rule
poses a substantial risk to free expression because it chills speech and fosters the proliferation of
false information.

17

94 Calif. L. Rev. at 847-848 (“By focusing on the Court’s conception of the media during the
decade between Sullivan and Gertz, a picture of a doctrine inextricably tied to outdated
assumptions emerges.”)
18
“[W]e have regularly acknowledged the ‘important social values which underlie the law of
defamation,’ and recognized that ‘[s]ociety has a pervasive and strong interest in preventing and
redressing attacks upon reputation… ‘The right of a man to protection of his own reputation
from unjustified invasion and wrongful hurt reflects no more than our basic concept of the
essential dignity and worth of every human being—a concept at the root of any decent system of
ordered liberty.’” Milkovich v. Lorain Journal Co., 497 U.S. 1, 22 (1990) (quoting Rosenblatt v.
Baer, 383 U.S. 75, 86 and 92-93 (1966)).
5

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 12 of 27

The historical importance of Sullivan, Butts, and Gertz, can easily obscure the obligation
to question whether they should still apply. But it is wrong to instinctively presume the necessity
and appropriateness of the actual malice rule—and potentially subvert the right of basic human
dignity—simply because it cured evils that imperiled speech in a bygone era and invoked rousing
concepts like our “profound national commitment to the principle of debate on public issues” and
the importance of “assur[ing] the unfettered exchange of ideas for the bringing about of political
and social changes desired by the people.” Sullivan, 376 U.S. at 269-70. Indeed, the Supreme
Court counseled against such a “blind application” of the rule. Butts, 388 U.S. at 148 (citing
Time, Inc. v. Hill, 385 U.S. 374, 390 (1967)). No one questions the importance of the free
speech principles Sullivan sought to protect. What must be questioned is a Pavlovian-adherence
to the actual malice rule every time the press invokes Sullivan, which ignores the Internet’s
profound impacts on speech, the unfettered access to the marketplace of ideas it provides, and
the resulting proliferation of the uninhibited, robust, and wide-open debate Sullivan and its
progeny sought19—but are no longer necessary—to ensure.
Society changed, and with it so must the law. At bare minimum, the actual malice rule
should not be applied because the reasons for doing so no longer exist.
II.

Stare Decisis Does Not Mandate Continued Adherence to the Actual Malice Rule
The arguments raised herein undoubtedly arouse stare decisis reservations. Defendants

may try to pigeonhole Plaintiff’s arguments as embodying a singular request to ignore binding
precedent, but that is not the case.
There is one component of Plaintiff’s argument (Section III) that asserts the actual malice
rule should be overruled. Plaintiff is not oblivious to the implications of stare decisis. Although
19

“The New York Times-Butts-Gertz culpability requirements further ensure that debate on
public issues remains ‘uninhibited, robust, and wide-open.” Milkovich, 497 U.S. at 20.
6

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 13 of 27

there are instances of lower courts refusing to apply binding precedent,20 the appropriateness of
doing so is admittedly suspect21 (and often depends on the eyes of the beholder or injustice
motivating the departure from controlling law).

Notably, Constitutional questions are less

susceptible to stare decisis.22
Independently, Plaintiff contends the actual malice rule is inapplicable because the
surrounding context of this case is substantially dissimilar from that presented in Sullivan, Butts,
Gertz, and the like. Stare decisis is limited in application to cases involving substantially similar
facts. 20 Am. Jur. 2d Courts § 125 (“Under the doctrine of stare decisis, when a court has laid
down a principle of law as applying to certain facts, it will adhere to that principle and apply it to

20

See e.g., Jaffree v. Board of Sch. Comm’rs, 554 F.Supp. 1104, 1128 (S.D. Ala. 1983); rev’d in
part sub nom, Jaffree v. Wallace, 705 F.2d 1526 (11th Cir. 1983), cert. denied, 446 U.S. 926
(1984), aff’d 472 U.S. 38 (1985); State v. Phillips, 540 P.2d 936, 938 (Utah 1975), overruled by
State v. Taylor, 664 P.2d 439, 448 n.4 (Utah 1983).
21
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 764 (1985) (Burger,
concurring) (noting “Gertz, however, is now the law of the land, and until it is overruled, it must,
under the principle of stare decisis, be applied by this Court.”)
22
Kimble v. Marvel Ent., LLC, 576 U.S. 446 (2015); William O. Douglas, Stare Decisis, 49
Colum. L. Rev. 735, 736 (1949) (“A judge looking at a constitutional decision may have
compulsions to revere past history and accept what was once written. But he remembers above
all else that it is the Constitution which he swore to support and defend, not the gloss which his
predecessors may have put on it.”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 95455 (1992) (Rehnquist, J., concurring in the judgment in part and dissenting in part) (“Erroneous
decisions in such constitutional cases are uniquely durable, because correction through
legislative action, save for constitutional amendment, is impossible. It is therefore our duty to
reconsider constitutional interpretations that ‘depart from a proper understanding’ of the
Constitution.”) (citations omitted); Patterson v. McLean Credit Union, 491 U.S. 164, 175 n.1
(1989) (“[C]onsiderations of stare decisis have added force in statutory cases because Congress
may alter what we have done by amending the statute. In constitutional cases, by contrast,
Congress lacks this option, and an incorrect or outdated precedent may be overturned only by our
own reconsideration or by constitutional amendment.”); Smith v. Allwright, 321 U.S. 649, 665
(1944) (“In constitutional questions, where correction depends upon amendment and not upon
legislative action this Court throughout its history has freely exercised its power to reexamine the
basis of its constitutional decisions.”); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-07
(1932) (Brandeis, J., dissenting) (“[I]n cases involving the Federal Constitution, where correction
through legislative action is practically impossible, this Court has often overruled its earlier
decisions.”).
7

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 14 of 27

all future cases where the facts are substantially the same.”).

As explained in Section IV, the

factual circumstances justifying application of the actual malice rule are absent today.
Plaintiff’s challenge to the application of the actual malice rule on factual grounds does not rest
on the soundness of Supreme Court precedent or implicate stare decisis concerns.
III.

Precedent Establishing the Actual Malice Rule Should be Overruled
The actual malice rule was implemented in response to the government using criminal

laws alongside defamation lawsuits by government officials against members of the press to try
to stifle the voices of Civil Rights leaders23 during the Civil Rights movement.24 It began as a
“policy-driven” means of protecting the “breathing space25” necessary for speech critical of the
government. McKee v. Cosby, 139 S.Ct. 675, 676 (2019) (Thomas, C., concurring).
Sullivan and its progeny are understandably celebrated as “great cases,” but their
popularity is not “the road to salvation for a court of law.” Gertz 418 U.S. at 370 (White, J.,
dissenting).

These decisions seem to embody of the type of well-intended judicial legislation

courts are warned to avoid in the face of immediate social ills; less they exceed the defined
responsibilities with which courts are charged, ignore the impartial position courts must maintain

23

See Mary-Rose Papandrea, The Story of New York Times Co. v. Sullivan, Boston College Law
School Legal Studies Research Series, May 30, 2012, pp. 2-8.
24
The 1960’s saw, among other things, the 1963 March on Washington, passage of the Civil
Rights Act and “Bloody Sunday” in Selma in 1964, passage of the Voting Rights Act and
assassination of Malcolm X in 1965, and the assassination of Martin Luther King Jr. and passage
of the Fair Housing Act in 1968.
25
The genesis for the Supreme Court’s “breathing space” concerns was NAACP v. Button,
371 U.S. 415, 433 (1963), which involved attempts to oppress minority speech. At issue was a
Virginia statute that infringed the right of the NAACP and its members and lawyers to associate
for the purpose of assisting persons who seek legal redress for infringements of their
constitutionally guaranteed and other rights. Id. at 428. The Court struck the statute as
unconstitutional because it could “easily become a weapon of oppression, however evenhanded
its terms appear…[and]…freeze out of existence all such activity on behalf of the civil rights of
Negro citizens.” Id. at 435-436.
8

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 15 of 27

in a democratic society, and lead to rules that cannot be checked and balanced by the other
branches of government. As Justice Holmes aptly stated:
Great cases, it is appropriate to remember, like hard cases make
bad law. For great cases are called great, not by reason of their real
importance in shaping the law of the future, but because of some
accident of immediate overwhelming interest which appeals to the
feelings and distorts the judgment. These immediate interests
exercise a kind of hydraulic pressure which makes what previously
was clear seem doubtful, and before which even well settled
principles of law will bend.” 26
For this reason, among others,27 the validity of the actual malice rule often has been
questioned. See McKee, 139 S. Ct. 675; Gertz, 418 U.S. at 370 (White, dissenting) (“As I see it,
there are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale
fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering
them powerless to protect themselves.”); Dun & Bradstreet, 472 U.S. at 764 (Burgur, concurring
in judgment) (“I continue to believe, however, that Gertz was ill-conceived and therefore agree
with Justice White that Gertz should be overruled…The great rights guaranteed by the First
Amendment carry with them certain responsibilities as well.”). These questions resonate louder
as the justifications for the actual malice rule continue to disappear, and the Supreme Court
reaffirms the importance of textualism.28

26

Northern Securities Co. v. U.S., 24 S. Ct. 436, 468 (1904) (Holmes, dissenting)
Other questions raised include the absence of textual support for the actual malice rule in the
First Amendment and whether it was appropriate to constitutionalize centuries of wellestablished defamation law. McKee, 139 S.Ct. at 677 (citing Dun & Bradstreet, 418 U.S. at 766
(White, J. concurring in judgment) (“New York Times was the ‘first major step in what proved to
be a seemingly irreversible process of constitutionalizing the entire law of libel and slander.’”)
28
See Bostock v. Clayton County, Georgia, 2020 WL 3146686, *4 (“If judges could add to,
remodel, update, or detract from old statutory terms inspired only by extratextual sources and our
own imaginations, we would risk amending statutes outside the legislative process reserved for
the people's representatives. And we would deny the people the right to continue relying on the
original meaning of the law they have counted on to settle their rights and obligations. See New
Prime Inc. v. Oliveira, 586 U.S. ––––, –––– – ––––, 139 S.Ct. 532, 538–539, 202 L.Ed.2d 536
27

9

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 16 of 27

There is no need to repeat the sound reasoning of those who have already questioned the
actual malice rule’s viability. Suffice it to say, Plaintiff adopts those arguments while noting the
factors considered in deciding whether to overrule precedent appear to support receding from the
actual malice rule. See Janus v. American Federation of State, County, and Mun. Employees,
Council 31, 138 S. Ct. 2448 (2018) (factors include the quality of the past decision’s reasoning,
the workability of the rule it established, its consistency with other related decisions,
developments since the decision was handed down, and reliance on the decision).
There are, however, several points that warrant brief discussion. These include: the
important practical distinction between public officials and public figures; the absence of the
immunity justification for the actual malice rule in the public figure context; the lack of weight
afforded to the chilling effect of the actual malice rule; and the boundaries of courts’ authority to
legislate.
First, Sullivan’s original rule providing that public officials29—agents of the government
who necessarily expose themselves to constitutionally-protected criticism—should face a higher
burden when they sue the press for criticizing them30 seems unnecessary. The First Amendment
already prohibited the government from curtailing free speech, be it through legislative,

(2019)”). “By its terms, the First Amendment addresses only ‘law[s]’ ‘ma[d]e’ by ‘Congress.’”
McKee, 139 S. Ct. at 682, n.3. The actual malice rule seems to run afoul of the Supreme Court’s
recent recognition that “[o]nly the written word is the law, and all persons are entitled to its
benefit.” Bostock, 2020 WL 3146686 at *3.
29
Unlike public figures, public officials occupy a special position in society. As Justice Brennan
remarked in Sullivan, “public men, are, as it were, public property.” 376 U.S. at 268. In Gertz,
Justice Powell noted government officials “must accept certain necessary consequences”
including “the risk of closer public scrutiny than might otherwise be the case.” 418 U.S. at 344.
30
Sullivan, 376 U.S. at 283 (“We hold today that the Constitution delimits a State’s power to
award damages for libel in actions brought by public officials against critics of their official
conduct.”)
10

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 17 of 27

executive or judicial action;31 which should include lawsuits brought by agents of the
government against the people they serve.

The quantum leap from Sullivan’s premise to

imposing the same rule on private citizens deemed “public figures” is significantly different and
unjustifiable on the same grounds, particularly in light of the recognition that false statements are
valueless and unprotected by the First Amendment.
Second, the expansion of Sullivan’s actual malice rule from public officials to public
figures lacks the original justification for the rule—immunity—among the latter group. Sullivan
explicitly recognizes the symbiotic relationship between state actor immunity and the newlyminted “privilege” it created for their citizen-critics: “a privilege for criticism of official conduct
appropriately analogous to the protection accorded a public official when he is sued for libel by a
private citizen.” Sullivan, 376 U.S. at 282-283 (“It would give public servants an unjustified
preference over the public they serve, if critics of official conduct did not have a fair equivalent
of the immunity granted to officials themselves.”) Public figures are not agents of the

31

“That the action of state courts and of judicial officers in their official capacities is to be
regarded as action of the State within the meaning of the Fourteenth Amendment, is a
proposition which has long been established by decisions of this Court. That principle was given
expression in the earliest cases involving the construction of the terms of the Fourteenth
Amendment. Thus, in Commonwealth of Virginia v. Rives, 100 U.S. 313, 318, 25 L.Ed. 667
(1880), this Court stated: ‘It is doubtless true that a State may act through different agencies,—
either by its legislative, its executive, or its judicial authorities; and the prohibitions of the
amendment extend to all action of the State denying equal protection of the laws, whether it be
action by one of these agencies or by another.’ In Ex parte Commonwealth of Virginia, 1880,
100 U.S. 339, 347, 25 L.Ed. 676, the Court observed: ‘A State acts by its legislative, its
executive, or its judicial authorities. It can act in no other way.’ In Civil Rights Cases, 1883, 109
U.S. 3, 11, 17, 3 S.Ct. 18, 21, 27 L.Ed., this Court pointed out that the [First] Amendment makes
void ‘state action of every kind’ which is inconsistent with the guaranties therein contained, and
extends to manifestations of ‘state authority in the shape of laws, customs, or judicial or
executive proceedings.’ Language to like effect is employed no less than eighteen times during
the course of that opinion. Similar expressions, giving specific recognition to the fact that
judicial action is to be regarded as action on the State for the purposes of the Fourteenth
Amendment, are to be found in numerous cases which have been more recently decided.”
Shelley v. Kraemer, 334 U.S. 1, 14–18 (1948).
11

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 18 of 27

government and enjoy no such immunity. Cases such as Butts acknowledge Sullivan’s immunity
justification for actual malice and its absence in the public figure context, but do not explain why
the actual malice rule can be extended to public figures despite their lack of immunity. See
Butts, 388 U.S. at 154. This distinction and the doubts it raises concerning the legitimacy of the
extending Sullivan to public figures is significant.
Third, through the actual malice rule, courts must classify plaintiffs based on standards
that effectively punish them for engaging in free speech in order to deprive them of the same
well-established right to seek redress for reputational harm that their fellow private citizens
enjoy. The actual malice rule was extended to public figures based on the premise that by
exercising their own First Amendment rights (whether by “assum[ing] roles of special
prominence in the affairs of society…[or]…thrust[ing] themselves to the forefront of particular
public controversies in order to influence the resolution of the issues involved…”), certain
people32 should be subjected to a higher burden to plead and prove a claim for defamation.
Gertz, 418 U.S. at 344-345. The proposition that private citizens sacrifice the right to protect
their reputations as a consequence of successfully engaging in free speech raises obvious
chilling-effect concerns. Perhaps these concerns were less important in the 1960’s, when very
few people could attain public figure status, but today they should carry significantly greater
weight. Important voices that could be empowered by the Internet to enter the public debate may
not because the actual malice rule makes them more susceptible to but less capable of redressing
false and defamatory attacks. This was not, nor could it have been, a concern placed onto the
scales in Butts or Gertz.
32

Gertz suggests the successful exercise of free speech rights by public figures “invite[d]
attention and comment” and that these individuals presumptively “enjoy[ed] significantly greater
access to the channels of effective communication and hence… a more realistic opportunity to
counteract false statements than private individuals normally enjoy.” 418 U.S. at 344-345.
12

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 19 of 27

Finally, the actual malice rule arose outside the confines of the unique and often
unenviable role courts serve in American democracy. Courts, unlike legislatures and executives,
must exercise restraint when wading into the immediate problems of the day:
…History teaches that the independence of the judiciary is
jeopardized when courts become embroiled in the passions of the
day and assume primary responsibility in choosing between
competing political, economic and social pressures.
Primary responsibility for adjusting the interests which compete in
the situation before us of necessity belongs to the Congress. The
nature of the power to be exercised by this Court has been
delineated in decisions not charged with the emotional appeal of
situations such as that now before us…
Beyond these powers we must not go; we must scrupulously
observe the narrow limits of judicial authority even though selfrestraint is alone set over us. Above all we must remember that
this Court’s power of judicial review is not “an exercise of the
powers of a super-Legislature.”
Dennis v. U.S., 341 U.S. 494, 524-525 (1951) (citing Robertson v. Baldwin, 165 U.S. 275, 281
(1897)). This is to say, irrespective of Sullivan’s and its progeny’s results and their celebration
as “great cases,” those decisions should nevertheless fall if they veered outside the recognized
limits of judicial authority.
IV.

The Actual Malice Rule Arose from Distinguishable Facts and Should Not Be
Applied
The rules emanating from Sullivan, Butts, and Gertz cannot be extracted from the factual

circumstances from which they came to exist. “Blind application” of the actual malice rule is
improper. See Butts, 388 U.S. at 148. Courts must consider the factors which arise in the
particular context at issue. Id. In other words, media defendants cannot continue to benefit from
general pronouncements of law plucked from these decisions and transposed upon circumstances
to which they never were intended to apply.

13

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 20 of 27

The actual-malice rule was justified on facts that do not exist today. The rule arose
during a time where the methods of mass communication consisted of newspapers, magazines,
and broadcasters; naturally limiting the number of people with access to the mass
communication necessary to inject themselves into the national debate and defend themselves
against defamatory attacks.33 That environment gave rise to certain justifications for the actual
malice rule and public figure doctrine, such as the belief that very few people could expose
themselves to the risk of defamation through voluntary participation in the public debate and
enjoyed the corresponding media access that provided an opportunity for rebuttal. See Gertz,
418 U.S. at 344. 34
But we no longer live in an era where the public depends exclusively on the traditional
press as the only “outlet for the promulgation of information and ideas by persons who do not
themselves have access to publishing facilities—who wish to exercise their freedom of speech
even though they are not members of the press.” Sullivan, 376 U.S. at 266. In the decades since
Sullivan, Butts, and Gertz, the Internet drastically altered the communications landscape and
created significant “breathing space” for everyone to enter the public debate and freely discuss
their supposed grievances and proposed remedies.

33

The Internet and its vehicles for speech “extended communicative power previously vested
solely in the hands of a small group of publishers and broadcasters to the public.” 94 Cal. L.
Rev. at 835.
34
As one commentator explains, “[t]he Supreme Court’s basic assumptions as to media in the
time of New York Times and Gertz reflect the nature of media in that time—‘a simplistic and
antiquated conception’—that hardly compares to how the media world looks today.” Ann E.
O’Connor, Access to Media All A-Twitter: Revisiting Gertz and the Access to Media Test in the
Age of Social Networking, 63 Fed. Comm. L.J. 507, 523. Further, “[w]hen the Court was
deciding Gertz, it did so with a singular understanding of the media landscape as it existed in
1974. At that time, the media were entirely limited to print and broadcast media, often
represented by large conglomerate news organizations.” Id. at 528-29.
14

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 21 of 27

As discussed above, the Internet is readily-accessible to virtually everyone and provides
equal access to a forum where debate on public issues is “uninhibited, robust, and wideopen…includ[ing] vehement, caustic, and sometimes unpleasantly sharp attacks on government
and public officials.” Sullivan, 376 U.S. at 270 (citing Terminiello v. Chicago, 337 U.S. 1, 4; De
Jonge v. Oregon, 299 U.S. 353, 365 (1937)). Case in point, every American has direct access to
the President of the United States through his Twitter account35, several of this generation’s most
significant social movements sprouted on social media36, and “citizen journalism” and “online
social movements” have flourished online and become part of the modern lexicon. 37
The actual-malice rule arose because access such as this did not exist. It emanated from
the notion that very few people would command substantial public interest and have sufficient
access to the means of communication necessary to expose through discussion the falsehood and
fallacies of defamatory statements. See Butts, 388 U.S. at 154-155. Now, a vast majority of the
citizens of this country habitually use the Internet, social media, message boards, YouTube,
online profiles, online comments, and/or similar virtual forums to publicly exchange information
and their opinions, question and hold our government to account, and thrust themselves into the
“vortex” of pressing social issues seeking to influence outcomes and affect social change.38 As
many as 87% of Americans get their news on mobile devices or computers39 and social media
outpaces print newspapers as a news source in the United States.40 Given this undeniable

35

Knight First Amendment Institute At Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019).
See FN 7.
37
See Plaintiff’s SMF ¶¶ 7-8.
38
See Plaintiff’s SMF ¶ 9; see also 2 Internet Law and Practice § 24:15 (“Because individuals
can now easily thrust themselves into the public debate by setting up their own websites,
participating in discussions in chat rooms or posting messages on bulletin boards, it would
appear easier to assume limited public figure status.”)
39
See Plaintiff’s SMF ¶ 10.
40
See Plaintiff’s SMF ¶ 11.
36

15

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 22 of 27

proliferation of online speech, the primary reason for the actual malice rule—the need to create
uninhibited, robust, and wide-open debate—no longer justifies its application.
A significantly greater number of people also expose themselves to the risk of injury
from online attacks through social media and the Internet.41 Compare Gertz, 418 U.S. at 345
(assuming that private individuals voluntarily expose themselves to the risk of injury from
defamatory falsehoods is “unjustified”). And there is much greater access to the channels of
effective communication today, which provides more people the opportunity to counteract false
statements; neither of which was the case when the Supreme Court extended the actual malice
rule to public figures.
The inability to consistently determine who qualifies as a public figure is compelling
evidence of why the actual malice rule is outdated. One Circuit went so far as to say, “anyone
who publishes becomes a public figure in the world bounded by the readership of the literature to
which he has contributed.” Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996). As noted by
one of many legal scholars to examine this issue, various categories of plaintiffs have been held
to be both public figures and private figures, despite similar facts: government contractors,
criminal defendants, companies that advertise, college professors, entertainers, lawyers, high
school

students,

business

executives,

coaches,

owners

of

bars

and

restaurants, physicians, and police officers. 42

41

Plaintiff’s SMF ¶ 12.
Jeff Kosseff, Private or Public? Eliminating the Gertz Defamation Test, Journal of Law,
Technology & Policy [Vol. 2011] (comparing Mathis v. Cannon, 573 S.E.2d 376, 382 (Ga.
2002) (stating an owner of municipal solid waste contractor is a public figure because of ―his
more public efforts in helping develop the quasigovernmental projectǁ), with Mahoney v. State,
236 A.D.2d 37, 40 (N.Y. App. Div. 1997) (stating a government contractor is not a public figure
because ―[n]either the receipt of public funds . . . nor involvement in a controversial industry,
alone, confers public figure status on an individualǁ); comparing Orr v. Argus-Press Co., 586
F.2d 1108, 1116 (6th Cir. 1978) (finding a criminal defendant was a public figure because ―his

42

16

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 23 of 27

conduct has made him the target of a criminal proceeding about which the public has a need for
information and interpretationǁ), with Thomas v. Tel. Publ‘g Co., 929 A.2d 993, 1018 (N.H.
2007) (finding a criminal defendant accused of bank robbery was not a public figure because his
alleged crimes ―[were] not matters of public controversyǁ); comparing Steaks Unlimited, Inc. v.
Deaner, 623 F.2d 264, 274 (3d Cir. 1980) (holding that a company is a public figure because
―through its advertising blitz, [it] invited public attention, comment, and criticismǁ), with
Imperial Apparel, Ltd. v. Cosmo‘s Designer Direct, Inc., 853 N.E.2d 770, 777 (Ill. App. Ct.
2006) (―[T]he mere fact that [plaintiff] advertised its merchandise does not, without more,
establish it as a limited purpose public figure.ǁ).; comparing Blum v. State, 255 A.D.2d 878, 880
(N.Y. App. Div. 1998) (finding a professor involved in a tenure dispute to be a public figure
because he ―thrustǁ himself into the public forefront), with Sewell v. Trib Publ‘ns, Inc., 622
S.E.2d 919, 923 (Ga. Ct. App. 2005) (finding a professor to be a private figure in a libel lawsuit
regarding classroom comments he made about the Iraq war because he ―in no way thrust
himself to the forefront of the controversy in any public forumǁ); comparing Rodriguez v.
Nishiki, 653 P.2d 1145, 1149 (Haw. 1982) (finding plaintiff musicians to be public figures in a
lawsuit against a newspaper), with Riddle v. Golden Isles Broad, LLC, 621 S.E.2d 822, 826 (Ga.
Ct. App. 2005) (finding plaintiff musician was a private figure ―[b]ecause there was no public
controversyǁ); comparing Marcone v. Penthouse Int‘l Magazine for Men, 754 F.2d 1072, 1083
(3d Cir. 1985) (finding that a lawyer representing a well-known motorcycle gang was a public
figure because ―it is clear that the present case involves a public controversyǁ), with Gilbert v.
WNIR 100 FM, 756 N.E.2d 1263, 1272 (Ohio Ct. App. 2001) (finding that a prominent
community attorney was not a public figure in a libel suit over news reporting about a murder
investigation); comparing Henderson v. Van Buren Pub. Sch. Superintendent, 644 F.2d 885, 6
Med. L. Rptr. 2409, 2410 (6th Cir. 1981) (finding that a high school government president was a
public figure when he ―intentionally thrust himself into the controversy as between the School
Board and the students at the high school . . .ǁ), with Wilson v. Daily Gazette Co., 588 S.E.2d
197, 209 (W. Va. 2003) (finding that a prominent high school athlete was not a public figure
because ―[n]othing in the record remotely suggests that [plaintiff] was a ‗central‘ figure in any
purported public controversy involving sportsmanship that existed prior to the Gazette‘s
publicationsǁ); compare Blankenship v. Manchin, 471 F.3d 523, 531 (4th Cir. 2006) (finding that
a well-known businessman was a public figure in his defamation suit), with Bank of Or. v. Indep.
News, Inc., 670 P.2d 616, 621 (Or. Ct. App. 1983) (finding bank executive was not a public
figure); compare Price v. Time, Inc., 416 F.3d 1327, 1346 (11th Cir. 2005) (stating plaintiff,
University of Alabama‘s football coach, was ―undisputedly a public figureǁ), with Moss v.
Stockard, 580 A.2d 1011, 1033 (D.C. 1990) (finding that a college coach was not a public
figure); compare Pegasus v. Reno Newspapers, Inc., 57 P.3d 82, 92 (Nev. 2002) (finding that a
restaurant owner was a limited public figure for defamation lawsuit over negative restaurant
review), with Lee v. City of Rochester, 174 Misc. 2d 763, 771 (N.Y. Sup. Ct. 1997) (finding that
bar owner plaintiff was not a public figure); compare Swate v. Schiffers, 975 S.W.2d 70, 76 (Tex.
Ct. App. 1998) (finding because plaintiff doctor ―has certainly been drawn into controversy,ǁ he
was a public figure), with WJLA-TV v. Levin, 564 S.E.2d 383, 391 n.3 (Va. 2002) (indicating that
plaintiff doctor was not a private figure); compare Drews v. Michelson, 327 N.W.2d 723 (Wis.
Ct. App. 1982) (unpublished disposition) (finding plaintiff police officer who had filed a
discrimination complaint was a public figure), with Kiseau v. Bantz, 686 N.W.2d 164, 178 (Iowa
17

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 24 of 27

Beyond those problems, one of the bedrock assumptions upon which the actual malice
rule rests is that society can tolerate defamatory statements because they are “inevitable in free
debate.”43 This necessarily presumes untruths will be the exception. See Butts, 388 U.S. at 152
(“We have recognized the inevitability of some error in the situation presented in free debate.”
(emphasis added)). However, false information is rampant online and spreads farther and faster
than the truth.44 This phenomenon harms the public debate Sullivan and Gertz sought to protect,
and simultaneously shows why defamatory falsehoods cannot sufficiently be overcome by the
“self-help” discussed in Gertz. See Gertz, 418 U.S. at 344. We are worlds away from the days
when a public figure was capable of meaningfully defending herself against defamation by
issuing press statements or holding a press conference to refute false charges.45

2004) (finding plaintiff police officer was a not a public figure, even though she is a highranking officer).
43
Despite the fact that false statements are valueless and devoid of constitutional protection,
Milkovich, 497 U.S. at 18, some justify them based on Sullivan’s premise that “erroneous
statement[s] [are] inevitable in free debate, and… must be protected…” Sullivan, 376 U.S. at
271-272. However, reliance on this proposition in the public figure context is misplaced because
it arose within the narrow confines of overruling “cases which impose liability for erroneous
reports of the political conduct of officials [because they] reflect the obsolete doctrine that the
governed must not criticize their governors.” Id. Extending this justification to false statements
about public figures simply ignores the fact that such figures do not in any sense “govern” the
people criticizing them.
44
See Plaintiff’s SMF ¶ 13.
45
“Unlike the human brain with its imperfections and forgetfulness, the web recollects nearly
everything and everyone. Information is perpetually accessible, and data subjects have limited
ability to conceal past transgressions. Now we are switching to a system in which the Internet is
a treasure trove of immutable memories and data subjects must take extraordinary steps in order
to forget. That is an enormous transformation. Social media postings that go viral permanently
stigmatize by creating a ‘digital Scarlet letter,’ which is ‘an indelible record of people's past
misdeeds .... The Internet is indeed a cruel historian.’” Michael L. Rustad, Sanna
Kulevska, Reconceptualizing the Right to Be Forgotten to Enable Transatlantic Data Flow, 28
Harv. J.L. & Tech. 349, 352–53 (2015) (internal citations omitted).
18

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 25 of 27

It simply is no longer necessary or appropriate to apply the actual-malice rule. Anyone
who posts comments, pictures, videos, memes, tweets, or similar expressions online or on social
media about topics such as elections, President Trump, Black Lives Matter, the police, protests,
LGTBQ rights, equality, #metoo, local politics, school boards, college campuses, homeowner’s
associations, COVID-19, or anything else “of concern” to other people arguably can be
swallowed by the actual malice rule. Moreover, once subjected to that standard, it must be
satisfied not just in actions against members of the press, but against anyone who posts false and
defamatory false statements.

Obsidian Finance Group, 740 F.3d at 1291.46 The public vs

private figure dichotomy is rooted in standards entirely dependent on outdated assumptions about
people’s access to the media, their ability to thrust themselves into important public
controversies, and effectively counter false attack. The lines between public and private figures
and the media and individuals are murky at best, while the primary beneficiaries of the actual
malice rule remain members of the press who invoke it to justify publishing false statements
they, as journalists, had no business publishing in the first place. And legitimate concerns exist
over the progression of the Sullivan, Butts, and Gertz to the point where actual malice applies to
everyone, the rule chills free speech by forcing people with important voices to remain silent if
they want to preserve their dignity and the right to protect their reputations, and public debate
suffers greater harm because the rule proliferates more and more false information.

46

Obsidian goes on to note that “[w]ith the advent of the Internet and the decline in print and
broadcast media … the line between the media and others who wish to comment on political and
social issues becomes far more blurred.”). Id.
19

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 26 of 27

The States’ common law of defamation co-existed with the First Amendment for
centuries before Sullivan was decided and can strike the required balance47 between
constitutionally protected free speech and the individual’s right to protect his or her good name
(which lies “at the root of any decent system of ordered liberty”48). Some state legislatures have
even enacted anti-SLAPP49 laws, which provide means to test the merits of defamation lawsuits
at early stages. The necessary equilibrium between human dignity and speech can be struck
without the actual malice rule. The need and justifications for the rule no longer exist. It should
not be applied.
Dated: June 19, 2020.

/s/ Shane B. Vogt
Kenneth G. Turkel (admitted pro hac vice)
Email: kturkel@bajocuva.com
Shane B. Vogt (admitted pro hac vice)
Email: svogt@bajocuva.com
BAJO   CUVA   COHEN   TURKEL
100 North Tampa Street, Suite 1900
Tampa, Florida 33602
Telephone: (813) 443-2199
Facsimile: (813) 443-2193
Michael M. Munoz
E-mail: mmunoz@golenbock.com
GOLENBOCK EISEMAN ASSOR BELL
& PESKOE LLP
711 Third Avenue
New York, NY 10017
Telephone: (212) 907-7300
Facsimile: (212) 754-0330
Attorneys for Plaintiff

47

Milkovich, 497 U.S. at 13-14; McKee, 139 S.Ct. at 678-679.
Dun & Bradstreet, 472 U.S. at 757-758 (quoting Gertz, 418 U.S. at 348).
49
See e.g., Fla. Stat. § 768.295; California Code of Civil Procedure § 425.16.
48

20

 Case 1:17-cv-04853-JSR Document 100 Filed 06/19/20 Page 27 of 27

CERTIFICATE OF SERVICE
I hereby certify that Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion for
Partial Summary Judgment was filed electronically on June 19, 2020. This Notice will be sent
by operation of the Court’s electronic filing system to counsel of record for all parties as
indicated on the electronic filing receipt. Parties and their counsel may access this filing through
the Court’s system.
/s/ Shane B. Vogt
Attorney

21