New York has a rich history of safeguarding freedom of the press. As I sit in my chambers at our majestic First Department courthouse, located on the avenue named for the chief author of the First Amendment, I am reminded that James Madison called freedom of the press “one of the great bulwarks of liberty.”[1] One can only imagine what our fourth president would think of the frequent pronouncements demonizing the press as the “enemy of the American people,” much less the attacks on journalism and journalists that have been committed and countenanced in recent times. Reporters have been banned from the White House,[2] secretly monitored at the southern border and targeted for questioning,[3] even slaughtered by a foreign authoritarian regime with no presidential rebuke.[4] Meanwhile, there have been calls to “open up the libel laws” to make it easier for public figures to pursue and prevail in lawsuits over press coverage they dislike.[5] Indeed, in a recent concurring opinion, U.S. Supreme Court Justice Clarence Thomas proposed the elimination of the actual malice requirement in defamation cases. See generally McKee v. Cosby, 586 U.S. __ (2019) (Thomas, J., concurring).

In the face of these events, it is appropriate to reflect on the important role played by New York law and courts in preserving freedom of the press under our federalist system. Article I, §8 of the New York State Constitution, which guarantees the right of “[e]very citizen” to “freely speak, write and publish his or her sentiments on all subjects,”[6] provides protections that are broader than those afforded by the First Amendment. See O'Neill v. Oakgrove Constr., 71 N.Y.2d 521, 529 n.3 (1988); Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235, 249 (1991); People ex rel. Arcara v. Cloud Books, 68 N.Y.2d 553, 557-58 (1986). New York's “Shield Law,” Civil Rights Law §79-h, further bolsters journalistic autonomy by giving journalists an absolute privilege against disclosure of their confidential sources and a strong qualified privilege against disclosure of non-confidential materials collected during news-gathering activities.[7] As the Court of Appeals has observed, “New York public policy as embodied in the Constitution and our current statutory scheme provides a mantle of protection for those who gather and report the news—and their confidential sources—that has been recognized as the strongest in the nation.” Matter of Holmes v. Winter, 22 N.Y.3d 300, 310 (2013). These foundational principles of New York law are of increasing importance in an environment that threatens to erode free-press protections at the federal level

New Yorkers were early supporters of freedom of the press. In 1735, printer John Peter Zenger was prosecuted for seditious libel for publishing negative articles about the Governor and refusing to disclose his source. Although truth was not a defense under the governing English law, Zenger's counsel argued that the jury should consider the truth of the published statements, but the court instructed the jury that it was only to decide whether Zenger had published the statements. Despite this instruction, Zenger was acquitted. Crown v. John Peter Zenger, Historical Society of the New York Courts; see also Beach v. Shanley, 62 N.Y.2d 241, 255 (1984) (Wachtler, J. concurring). Thereafter, “New York became a hospitable environment for journalists and other purveyors of the written word.” Holmes, 22 N.Y.3d at 307. In 1803, Harry Croswell was convicted of libel for publishing an article critical of President Thomas Jefferson and others. People v. Croswell, 3 Johns. Cas. 337 (1804); see also People v. Santiago, 185 Misc.2d 138, 147-50 (Monroe County Ct 2000). On appeal to the New York Supreme Court of Judicature, Alexander Hamilton was “in the room where it happen[ed],”[8] representing Croswell. Hamilton argued that the defendant should have been allowed to offer evidence of the truth of the publication in his defense. That argument was rejected by a divided Court and the conviction stood.[9] One year later, however, New York enacted legislation providing that truth is a defense to libel “where published with good motive and for justifiable ends.”[10] This same language was included in article I, §8 of New York's Constitution when it was adopted in 1821.[11]

The inclusion of article I, §8 in the New York Constitution was of particular significance when one considers that it wasn't until 1925, in Gitlow v. New York, 268 U.S. 652, 666 (1925), that the U.S. Supreme Court endorsed the concept that the First Amendment, through the doctrine of incorporation by way of the Fourteenth Amendment, could apply to the states.

Following Gitlow, the First Amendment establishes the floor for free speech and press protections in New York, but not the ceiling. Notably, “the drafters [of article I, §8] chose not to model our provision after the First Amendment, deciding instead to adopt more expansive language.” Holmes, 22 N.Y.3d at 307. As Chief Judge Kaye eloquently noted:

This State, a cultural center for the Nation, has long provided a hospitable climate for the free exchange of ideas (Matter of Beach v. Shanley, 62 N.Y.2d 241, 255-256 [Wachtler, J., concurring]). That tradition is embodied in the free speech guarantee of the New York State Constitution, beginning with the ringing declaration that 'every citizen may freely speak, write and publish … sentiments on all subjects.' (NY Const, art I, §8.) Those words, unchanged since the adoption of the constitutional provision in 1821, reflect the deliberate choice of the New York State Constitutional Convention not to follow the language of the First Amendment, ratified 30 years earlier, but instead to set forth our basic democratic ideal of liberty of the press in strong affirmative terms.

Immuno AG, 77 N.Y.2d at 249.

The Court of Appeals reaffirmed the preeminence of New York's free speech protections in Matter of Holmes v. Winter, 22 N.Y.3d 300 (2013). In that case, Colorado police who investigated the mass shooting in an Aurora, Colo. movie theater were suspected of having leaked information about the case to a New York reporter, in violation of a pre-trial publicity order. The defendant in Colorado subpoenaed the reporter under a Colorado law providing for out-of-state witnesses to appear in criminal proceedings. The New York trial court ruled that the reporter was required to appear in Colorado. On appeal, the majority of a First Department panel affirmed, holding that the reporter could raise any claim of privilege in the Colorado proceeding. 110 A.D.3d 134 (2013). Justice Saxe and I dissented, reasoning that the reporter should not be compelled to appear in the Colorado proceeding, because the sole purpose of compelling her testimony was to seek disclosure of her confidential sources, in clear violation of the absolute protection against such disclosure embodied in the Shield Law. Id. at 139. The Court of Appeals agreed with our dissent: “[P]rotection of the anonymity of confidential sources is a core—if not the central—concern underlying New York's journalist privilege, with roots that can be traced back to the inception of the press in New York.” 22 N.Y.3d at 316. The Court further noted that requiring a reporter to wait until she was on the witness stand to assert her claim of privilege “can itself be viewed as a significant incursion into the press autonomy recognized in article I, §8 and the Shield Law.” Id. at 319.

Finally, a key component of a free press emanating from federal jurisprudence is the “actual malice” standard established in New York Times v. Sullivan, 376 U.S. 254 (1964). Sullivan held that in order to prevail on a defamation claim, government officials and other public figures must prove that the statement in question was “knowingly false” or made with “reckless disregard” for its accuracy. Id. at 279-81. As referenced above, Justice Thomas recently issued a lengthy concurrence to a denial of certiorari in which he argued that the Court “in an appropriate case” should reconsider Sullivan and its progeny. McKee v. Cosby, 586 U.S. __ (2019) (Thomas, J. concurring). After analyzing the status of libel laws in the 18th and 19th centuries, Justice Thomas observed that there was “little historical evidence suggesting that the … actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.” Id. He concluded by noting that “[t]he States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.” Id.

New York has a long tradition of striking that balance in support of a free press, but not all states share that tradition. So, it is possible that, if Sullivan were overturned by the U.S. Supreme Court, “the New York legislature [and] the New York courts … would quickly act to protect the press because that's what we do in New York.”[12] Our sister states may not be so quick to act, or may not act at all. Therefore, in light of the growing threats to journalistic freedom in the United States and abroad, the vital importance of continuing New York's tradition of protecting freedom of the press is as clear today as it has ever been.

Endnotes:

[2] Peter Baker, Trump Bars CNN's Jim Acosta From the White House, NY Times (Feb. 17, 2018).

[4] Peter Baker and Eric Schmitt, Trump Defies Congressional Deadline on Khashoggi Report, NY Times, (Feb. 8, 2019).

[5] Michael M. Grynbaum, Trump Renews Pledge to 'Take a Strong Look' at Libel Laws, NY Times (Jan. 10, 2018).

[6] The full text of article I, §8 reads: “Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.”

[7] The Shield Law was amended in 1990 (Civil Rights Law §79-h [c]) to codify the Court of Appeals' holding in O'Neill, 71 N.Y.2d 521, which recognized that article I, §8 provides reporters with a “qualified privilege” against compelled disclosure of “nonconfidential news” (see Matter of Holmes v. Winter, 22 N.Y.3d 300, 308 (2013).

[8] Lin-Manuel Miranda, The Room Where It Happens, Hamilton the Musical, Act 2 (2015).

[9] “The Court was deadlocked because the 'fifth' judge, Ambrose Spencer, had deferred his judicial appointment to the New York Supreme Court of Judicature during its pendency of this case so that he could continue to represent the People. In these circumstances, the prosecutor was entitled to move for judgment on the verdict, but the motion was not made.” People v. Croswell, Historical Society of the New York Courts.

[10] N.Y. Sess. Laws ch. 90, §2 (1805); People v. Croswell, Historical Society of the New York Courts. The burden now rests with the plaintiff in a defamation case to prove falsity. See generally Immuno AG, 77 N.Y.2d 235.

[11] See full text of article I, §8, supra.

[12] Tony Mauro, Justice Clarence Thomas Stirs Up a First Amendment Squabble Over Libel Law, NYLJ (March 29, 2019) (quoting First Amendment litigator Katherine Bolger).