New York Times v. Sullivan as Historical Analogue

Charles W. "Rocky" Rhodes and I have posted to SSRN the third piece in our series on SB8--Solving the Procedural Puzzles of the Texas Heartbeat Act and its Imitators: New York Times as Historical Analogue. The piece compares Alabama's defamation regime and the coordinated campaign of private civil litigation to silence the northern media and stop coverage of the civil rights moves, none of which triggered offensive litigation.

The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat, while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $ 10,000 per prohibited abortion. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

This Article—the third in a series unpacking S.B.8’s procedural puzzles—considers the historical analogue of New York Times v. Sullivan, the Court’s foundational modern free-speech case. Like S.B. 8, New York Times arose out of a campaign to deter locally unpopular-but-constitutionally protected activity through threat of hundreds of lawsuits and devastating liability; southern governments used state defamation law and private civil litigation to silence The Times and other media outlets from reporting on Jim Crow and the Civil Rights Movement. As with S.B. 8, state defamation law was enforced through private civil damages litigation. As with S.B.8, defendants faced severe monetary exposure through the cost of litigation and potential liability. But defendants in New York Times could not go to federal court ahead of any private lawsuit and seek to functionally enjoin the state’s trial courts. Rather, the paper litigated defensively, with successful review to the Supreme Court of the United States; providers can follow the same process to challenge the substantive validity of the Texas heartbeat ban.