Gorsuch’s critique of Sullivan rests on the idea that since 1964, “Our nation’s media landscape has shifted in ways few could have foreseen.” The decline of legacy media and the rise of social media, Gorsuch argued, has led to a rise in misinformation. Gorsuch pointed out, correctly, that fake news is much cheaper to produce than real news — and that anyone can do it. The editors and fact checkers of legacy media are “disappearing,” he wrote.
In this environment, Gorsuch proposed, the Sullivan precedent creates a perverse incentive not to check facts — so that you can later say that you didn’t realize what you were saying was false. He threw in the concern that today, everyone is a public figure to some degree or another, making libel suits harder for everybody.
The upshot, for Gorsuch, is that the Sullivan rule no longer serves its original objective of creating an informed public debate.
In a touch that might sound cute but is actually significant, Gorsuch invoked Kagan. He quoted an essay that she wrote in 1993 while an assistant professor at the University of Chicago, reviewing a laudatory book about the Sullivan decision by the journalist Anthony Lewis. In it, Kagan noted that the actual malice standard might have the unintended effect of promoting not only true but also false statements of fact — “statements that may themselves distort public debate.” Thus, Kagan, concluded, “the legal standard adopted in Sullivan may cut against the very values underlying the decision.”