Private: United States v. Alvarez and the Lasting Legacy of New York Times Co. v. Sullivan

 

* Editor's Note: The 50th anniversary of New York Times Co. v. Sullivan is this Sunday, March 9.

 

For me, and for other media attorneys of my generation, it is almost impossible to conceive of a world without New York Times Co. v. Sullivan. Certainly, the “actual malice” standard announced in Justice Brennan’s celebrated opinion, and the interplay between that standard’s twin elements of fault and falsity have, throughout my lifetime, been the defining features of the law of defamation. But the impact of that landmark decision extends far beyond the realm of reputational torts.

 

Sullivan has shaped our very understanding of the First Amendment—as a reflection of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open”—and it serves as a touchstone in virtually every case that calls for an interpretation of the constitutional guarantees of free speech and a free press.

 

For evidence of Sullivan’s enduring and continued role in shaping First Amendment thought and jurisprudence beyond the scope of defamatory speech, one need look no further than the Supreme Court’s 2012 decision in United States v. Alvarez. Alvarez addressed the constitutionality of the Stolen Valor Act of 2005, a federal statute that made it a crime for an individual to falsely claim that she or he had been “awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”

 

A six-justice majority concluded, albeit for different reasons, that the statute was unconstitutional under the First Amendment. While Justice Kennedy in his plurality opinion, and Justice Breyer in his concurrence, disagreed as to the proper analysis, they agreed in at least one critical respect, finding that false speech is not outside the scope of the First Amendment—an idea rooted in the reasoning and holding of Sullivan.

 

By requiring public official defamation plaintiffs to demonstrate material falsity and fault, the Sullivan Court made clear that falsity alone is not enough to “forfeit[]” constitutional protection. Recognizing that the “erroneous statement is inevitable in free debate,” Justice Brennan explained that “it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’” While subsequent opinions of the Court have suggested that constitutional protection for at least some demonstrably false speech can be justified only because it provides breathing space for true speech, the Court in Sullivan was careful not to label false speech itself as valueless. Quoting John Stuart Mill, On Liberty, the Court noted that “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’”

 

Sullivan’s recognition of the importance of shielding false speech from liability under the First Amendment underpins the Court’s far more recent decision in Alvarez, where it confronted for the first time a statute that “target[ed] falsity and nothing more.” Relying on Sullivan, Justice Kennedy rejected the argument that falsity alone was sufficient to bring speech outside the First Amendment.

 

Justice Breyer, in his concurring opinion, agreed. While acknowledging that “false statement about easily verifiable facts” that do not relate to matters of public concern are “less likely than true factual statements to make a valuable contribution to the marketplace of ideas,” Justice Breyer echoed Justice Brennan’s opinion in Sullivan, making clear that such falsity is not necessarily without value. “False factual statements can serve useful human objectives,” he wrote, “even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.”

 

Alvarez, and its recognition of the safeguards for false speech mandated by the Constitution, serves as just one of countless examples of the omnipresence of Sullivan in modern First Amendment jurisprudence. Given its sweeping, indelible impact over the past five decades, there can be little doubt that future generations of attorneys, judges, and legal scholars will continue to look to Sullivan as a guide when confronted with new questions that touch upon the First Amendment’s guarantees of free speech and a free press. On the eve of its 50th anniversary, the influence of Sullivan—thankfully—shows no signs of waning.