Justice Antonin Scalia, who died in 2016, routinely made the same point in his speeches. But Mr. Trump’s two Supreme Court appointees — Justices Neil M. Gorsuch and Brett M. Kavanaugh — have expressed support for broad libel protections in their opinions as appeals court judges.
At his Supreme Court confirmation hearings in March 2017, Justice Gorsuch was asked about the Sullivan decision by Senator Amy Klobuchar, Democrat of Minnesota. She wanted to know whether “the First Amendment would permit public officials to sue the media under any standard less demanding than actual malice.”
Judge Gorsuch, reticent when asked about other precedents, seemed comfortable with preserving that one.
“New York Times v. Sullivan was, as you say, a landmark decision and it changed pretty dramatically the law of defamation and libel in this country,” he said. “Rather than the common law of defamation and libel, applicable normally for a long time, the Supreme Court said the First Amendment has special meaning and protection when we’re talking about the media, the press in covering public officials, public actions and indicated that a higher standard of proof was required in any defamation or libel claim. Proof of actual malice is required to state a claim.”
“That’s been the law of the land for, gosh, 50, 60 years,” he said.
As an appeals court judge, Justice Gorsuch showed no hesitation in applying the line of cases that began with the Sullivan ruling.
Some plaintiffs, he wrote in a 2011 opinion, have reputations so poor that even serious accusations cannot damage them. Libel law, he said, is “about protecting a good reputation honestly earned.”
He added that minor inaccuracies in a news report can never serve as the basis for a libel suit, calling that “a First Amendment imperative.”