06/25/2014 10:25 am ET Updated Aug 25, 2014

Libel: Developing a 'Thick Skin'

In 1964 -- yes, it was 50 years ago -- the U.S. Supreme Court decided New York Times v. Sullivan (376 U.S. 254 (1964)). To be sure, it was a great victory for the First Amendment when the Court held that a public official could not sue for libel unless he could prove that the defendant who libeled him did so with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard of whether it was false. In awarding a victory to the "good guys," including the New York Times which published an advertisement condemning alleged racist conduct by Montgomery, Alabama police officials, the Court considered the case "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials."

What gets lost in the fog of legal history, however, is that the advertisement Sullivan complained about actually did contain false statements, some of which probably would have been actionable had he not been Montgomery's Commissioner of Public Affairs in charge of, among others, its Police Department. For the Sullivan Supreme Court, it was simply the price we pay for leading a public life in a free society -- absent actual malice, libel suits by public officials will fail. And for practical purposes, given such an imposing standard as "actual malice," it has become virtually impossible for a public official (or even public figure, as the Court would later hold) to successfully sustain a libel complaint.

Last week, in Susan B. Anthony List v. Driehaus (__ U.S. __, No. 13-193, dec. June 16, 2014) the Court unanimously -- with all judges signing onto an opinion written by Justice Clarence Thomas -- may have taken Sullivan up a notch, albeit on a procedural issue. And this time it is the conservatives who demand their right to free speech.

Somewhat astonishingly, and it really is hard to believe, there is actually a statute on the books in Ohio, whether enforced or not, that makes it a crime -- yes, a crime -- to "make a false statement concerning the voting record of a candidate or public official" or to disseminate false statements concerning a candidate, knowingly or with reckless disregard as to its truth. And the penalty for violating the law -- up to six months imprisonment for a first offense.

It seems that a conservative anti-abortion group, the Susan B. Anthony List (the "SBA List") wanted to see just how far the law would stretch. It sought to post the following message on a billboard, referring to a then-Congressman running for reelection: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." The "taxpayer funded abortion"? -- Driehaus voted in favor of the Affordable Care Act.

The billboard company refused to display the sign when Driehaus threatened to sue. He then made a complaint against the SBA List under Ohio's law, and an interim decision found that there was "probable cause" that the SBA List was in violation of the law. But the SBA List -- which wanted to post similar ads challenging other candidates who voted in favor of Obamacare -- sued in federal court to invalidate Ohio's law on First Amendment grounds. Although the case turned on procedural issues, and the SBA List's challenge to the statute must now wend its way through Ohio's federal courts, the Supreme Court found that the SBA List had the right to challenge the law.

But here is the question -- isn't the whole thing kind of silly? Do we live in an era, particularly given our 24-hour news cycle, Internet world, where public officials (and even public figures) should be worried to the point of commencing legal action every time Fox News, on the one hand, or MSNBC, on the other, for example, makes a public statement that appears to defame them? Does anyone actually believe that political commentary or advertisement today is necessarily fair or balanced? Can anyone seriously trust, without personal verification, the "facts" or even the "statistics" that come out of the mouths of politically-motivated pundits -- on any side of the proverbial aisle?

Indeed, if, hypothetically, someone appearing on Fox News were to say, during an election campaign, that Hillary Clinton was "deliberately" responsible for the killing of the U.S. Ambassador in Benghazi, or someone on MSNBC were to say that Ted Cruz's government shutdown "deliberately" killed veterans recuperating in government hospitals, should such unwarranted -- and flatly false -- accusations be actionable, either civilly or, can you imagine, criminally?

Didn't the New York Court of Appeals get it exactly right when it suggested, to put it in terms colloquial, that public officials simply "get over it"? In Shulman v. Hunderfund (12 N.Y. 3d 143 (2009)), Shulman, a school board member and candidate for reelection, was accused by Hunderfund, the school superintendent, of "flagrantly break[ing] the law" in awarding a lucrative food service contract to a business associate. Shulman sued Hunderford for libel. The Court of Appeals, the highest state court in New York, after dealing with the application in New York of the "actual malice" standard of Times v Sullivan, said this in dismissing Shulman's libel complaint:

It is understandable, of course, that Shulman did not like Hunderford's provocatively phrased, and anonymous, charges against him. But so long as Hunderford did not substantially depart from what he believed to be the truth, the only remedy for Shulman -- and for other public figures similarly situated -- is, of course, as [New York's trial court] said in its order setting aside the verdict in this case, to develop a thicker skin.

And isn't the Court correct -- if you are going to be in politics, if you are going to be in the public eye, you are going to be talked about, challenged, criticized and more. Yes, it is appalling that truth is not always of primary concern in the hard ball league of politics, and that resultantly the public marketplace of ideas has been sorely downgraded. But at the same time, the public knows - as we live in our digital age when anyone can become a "publisher" by merely sitting at his desk armed with a rudimentary laptop linked to the blogosphere -- that you simply can't and shouldn't believe everything you read (or hear).

While it's lousy that the citizenry now suffers from, for lack of a better word, the alienation of oftentimes not being able to believe what it reads, it's probably a better result than risking free speech by opening the floodgates so that anyone, anytime, can sue or, more important here, try to prosecute, simply because they don't like what's being said about them.

The Sullivan Court was committed to the principle that debate should be "uninhibited, robust and wide-open" -- even if it includes "vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials."

Isn't it possible that the remedy of "developing a thicker skin" is just what Society's doctors, in the form of its judges, should prescribe for any would-be politician who wants to take it upon himself to serve the public -- thereby simply according the public the unbridled power to take it upon itself to separate the wheat from the chaff?