Gorsuch on libel standards

Supreme Court nominee Neil Gorsuch explains current standards for libel and First Amendment protections established in New York Times v. Sullivan, the Supreme Court decision that established clear protections for newsreporting and speech about public officials. Senator Amy Klobuchar (D-MN) asks Gorsuch about the standard.

KLOBUCHAR:
I’m gonna end with freedom of press in honor of my dad. He was a newspaper reporter his whole life and I’m especially concerned in today’s world where we’re seeing these attacks on the media about maintaining the press’s role as a watch dog.

Our founders enshrined freedom of the press in the First Amendment. As Thomas Jefferson said, “Our first objective should be to leave open all avenues to truth, and the most effective way to do that is through the freedom of the press.” In New York Times v. Sullivan, the court issued a landmark ruling in support of First Amendment protections for the press by affirming that when newspapers report on public officials, they can say what they want. Maybe we don’t always like that, but they can. Unless they say something untrue with actual malice.

Do you believe under New York Times v. Sullivan that the First Amendment would permit public officials to sue the media under any standard less demanding than actual malice? And can you explain to the people here today and those watching on TV what that standard means to you?

GORSUCH:
New York Times v. Sullivan was, as you say, a landmark decision and it changed pretty dramatically the law of defamation and libel in this country. Rather than the common law of defamation and libel, applicable normally for a long time, the Supreme Court said the First Amendment has special meaning and protection when we’re talking about the media, the press in covering public officials, public actions and indicated that a higher standard of proof was required in any defamation or libel claim. Proof of actual malice is required to state a claim.

That’s been the law of the land for, gosh, 50, 60 years. I could point you to a case which I’ve applied it and I think might give you what you’re looking for, Senator, in terms of comfort about how I apply it; Bustos v. A&E Network. It involved a prisoner who was concerned that he had been misrepresented as a member of the Aryan Brotherhood. Claimed he wasn’t a member, just a fellow traveler and sought damages for that. Our court declined to grant that relief, saying that substantial truths protected, even if it’s not strictly true. And much more is required by the First Amendment in order to state a claim.

KLOBUCHAR:
OK. And Branzburg v. Hayes, a Supreme Court case, they didn’t recognize a reporter’s privilege and this is in the context of criminal grand jury testimony. Could you just end here by talking about the scope of the Branzburg decision and whether there are instances where a court should recognize a reporters’ privilege?

GORSUCH:
Senator, I know those cases come up from time to time, so I have to be very careful.

KLOBUCHAR:
OK.

GORSUCH:
But your description of the case is entirely accurate.

KLOBUCHAR:
Thank you very much.

GORSUCH:
Thank you.