Kavanaugh: Actual Malice Standard is Settled Precedent

Judge Brett Kavanaugh signaled he will follow the Times v. Sullivan precedent that journalists can say anything about public figures so long as it is not untrue, and further, that the untruth was reported with "actual malice."

That came in day three of his Supreme Court nomination hearing in the Senate Judiciary Committee.

The issue was raised by Sen. Amy Klobuchar, who was looking for such assurances against the backdrop of President Donald Trump's threats against the New York Times and other media outlets, including invoking libel laws and threatening to sue over negative coverage he has branded a conspiracy against him.

Asked if he thought under Times v. Sullivan would allow a public figure to sue a news outlet under any lesser standard than "actual malice."


Kavanaugh said the Supreme Court had repeatedly applied that standard, as had he in his current post as judge on the U.S. Court of Appeals for the D.C. Circuit. "The precedent has now been applied over and over and over again. I'm not aware of much effort to deviate from that standard," he said. 

When asked about how he would apply a reporters privilege to protect a confidential source, Kavanaugh said there was important precedent that makes clear the importance of the relationships of reporters and their sources is very important. I understand the role of journalists in bringing some light to American democracy."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.