For nearly 50 years, the Supreme Court decision of New York Times v. Sullivan has survived as a largely untouched landmark that is the touchstone for modern press freedom in the United States.
But a new law review article, drawing from a trove of justices’ papers, has revealed that, between 1983 and 1985, an internal battle raged among justices that came close to severely weakening the 1964 Times decision, which protects news media from libel suits by public figures.
The battle was fought behind the scenes as the court struggled over the span of two terms to decide how to rule in an otherwise unremarkable case called Dun & Bradstreet v. Greenmoss Builders, arising from an erroneous report by the credit agency that a construction company had gone bankrupt.
An exhaustive report on the court’s machinations in the case, complete with links to memoranda and drafts contained in justices’ papers, appears in the latest issue of the Washington Law Review, a publication of the University of Washington School of Law.
"A huge amount was going on in this case," said Stephen Wermiel of American University Washington College of Law, co-author of the law review article and also co-author of the leading biography of the late Justice William Brennan Jr. Prominent media lawyer Lee Levine, a partner at Levine Sullivan Koch & Schulz in Washington, wrote the article along with Wermiel. "It was fascinating to see what was going on," said Wermiel.
In a commentary on the article, former Brennan clerk Robert O’Neil called the Washington Law Review examination of the Greenmoss deliberations "one of the most ambitious and accomplished case studies of constitutional litigation to be found anywhere."
At issue in Greenmoss was the extent to which Sullivan and other cases including Gertz v. Welch extended protections against libel suits brought by private figures against nonmedia defendants. Justice Byron White, who had voted in favor of Times v. Sullivan, had come to regret it, worried that the ruling had overly constitutionalized the law of defamation.
At various times in the lengthy deliberations over the Greenmoss case, the article indicates, White was joined by justices Lewis Powell Jr., William Rehnquist and Chief Justice Warren Burger in drafts that expressed skepticism about Sullivan and Gertz. "The deliberations in Greenmoss Builders revealed deep hostility within the Court to the New York Times v. Sullivan line of cases," Wermiel and Levine wrote. After the court could not reach a decision in the 1984 term, it was reargued in the fall and still took months to decide.
Brennan, for his part, drafted a vigorous defense of the Sullivan decision, which he had authored in 1964. He toned it down by the time the final opinion came together. White ended up writing a solitary concurrence urging that both Sullivan and Gertz be overturned. The court backed away from the precipice with a split decision that has kept the Dun & Bradstreet decision out of the First Amendment pantheon. In the end, there was no single opinion for the majority. The court ruled that punitive damages were allowed in defamation cases when the defamatory statements did not involve matters of public concern.
"I don’t think we were in spitting distance of having Times v. Sullivan overturned, but it was only through the vigilance of Justice Brennan," said Wermiel. "I would put it that the court came close to gutting the Times decision."
Remarkably, possibly because the justices were weary of the struggle over Greenmoss, internal efforts to overturn Times v. Sullivan subsided in the years after the decision was issued. "It seemed to be the last gasp," said Wermiel.
From time to time Justice Antonin Scalia still lists the Times decision as an example of judicial activism—departing from the original meaning of the First Amendment—that he would like to overturn. "George Washington could sue someone that libeled him, but we don’t think that’s a good idea anymore," Scalia said mockingly in 2011.
Tony Mauro is the U.S. Supreme Court correspondent for The National Law Journal, a Legal affiliate based in New York.