SCOTUS Conservatives Question Times v. Sullivan

Supreme Court of the United States
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Big Tech's defense of its liability shield for content could become a two-front war.

Edge providers already face bipartisan pushback on their Sec. 230 shield from moderation of most third-party content, now a couple more top judges, both Supreme Court Justices, have raised the issue of rethinking the Times vs. Sullivan decision requirement that speech relating to public officials has to show actual malice to be actionably defamatory.

Dissenting from the court's decision not to hear a relevant challenge to Times v. Sullivan, Justice Clarence Thomas said it was definitely time to take a second look at the actual malice standard. "Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires," Clarence wrote.

Also Read: Justice Thomas Says Edge May Need Common Carrier Regs

In his dissent, Justice Neil Gorsuch clearly suggested that means rethinking the blanket liability shield for edge providers as well as traditional publishers.

"What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable....If ensuring an informed democratic debate is the goal, how well do we serve that interest with rules that no longer merely tolerate but encourage falsehoods in quantities no one could have envisioned almost 60 years ago?," he asked.

"Not only has the [actual malice] doctrine evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come to leave far more people without redress than anyone could have predicted."

Conservatives argue that edge providers have spread falsehoods about them, while liberals argue that the internet has been allowed to abet "big lies" about election security, immigration, and more.

Back in March, Senior Judge Laurence Silberman said that in the 50 years since the decision, the media landscape has changed sufficiently to make the decision "a threat to American Democracy."

He said that Silicon Valley filtered news "in ways favorable to the Democratic party," echoing criticisms from Republican legislators.

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.