If Sullivan is overruled, defendants in libel cases will lose constitutional protections they now have, and the United States could well return to a libel regime akin to England’s.
England is the mother country of the United States, a democracy from which America has learned much. But its libel law is at war with First Amendment principles. English law does not provide anything close to the protections of the Sullivan decision. Inaccurate statements about even the most powerful individuals in society receive little legal protection in England; a defendant could be liable for a false statement even if he was unaware that it was false. Moreover, the burden of proof is on the defendant; the defendant must prove that what he said was true. In the United States, the plaintiff must prove it was false.
A return by the Supreme Court to anything like the English approach could significantly chill speech of the most important sort. That has happened disturbingly often in England. In 2014, Cambridge University Press declined to publish a book about connections between President Vladimir Putin of Russia and organized crime because of England’s strict libel laws. In a letter to the author, Karen Dawisha, an executive for the publisher, wrote: “The decision has nothing to do with the quality of your research or your scholarly credibility. It is simply a question of risk tolerance in light of our limited resources.” The book was ultimately published in the United States. No libel action was filed.
A recent example of the potentially chilling impact of English libel law can be seen in libel litigations brought this year by supporters of Mr. Putin in courts in London against the journalist Catherine Belton and her publisher, HarperCollins, for her widely lauded book, “Putin’s People: How the KGB Took Back Russia and Then Took On the West.”
The “ruinous” legal action, according to Toomas Hendrik Ilves, a former president of Estonia and a journalist before that, is intended “not just to crush her, but to deter anyone else who dares to investigate the nexus of intelligence, business, organized crime and state power that gave birth to and sustains Russia’s ruling elite.”
That is, of course, precisely the sort of threat that the Sullivan decision seeks to protect against.
The stark difference in approach between American and English libel law led Congress to unanimously pass legislation, signed by President Barack Obama in 2010, barring state or federal courts from enforcing foreign libel judgments against U.S. defendants that are not consistent with First Amendment protections as set forth in the Sullivan decision.