From Sullivan to Swift: Defamation Law in the Era of Influencers
Published April 16, 2026
By Katie Newhouse
“Over time, the actual malice standard has evolved from a high bar to recovery into an effective immunity from liability.”- Justice Neil Gorsuch (1)
At the heart of our nation lies our most important freedoms, the ones listed in the First Amendment. Of those, freedom of the press to publish freely is among the most important and journalism remains the bedrock of democracy.
The Supreme Court case, New York Times Co. v Sullivan, expanded what the freedom of the press really entailed. It established the Sullivan standard: that for one to prevail in a defamation suit, the complainant has to prove that the false statements were made with actual malice (2). That is, that the statements were made with knowledge of or reckless disregard to its falsity. In the world in which the Sullivan standard was established in, this might have been an acceptable standard to protect the victims of defamation as well as our right to publish freely. In a world where AI is becoming increasingly more prevalent, though, the Sullivan standard leaves much to be desired for victims of defamation.
In 1964, the New York Times, at the height of the Civil Rights Movement, published an ad asking for donations to defend Martin Luther King Jr. who was being held for perjury charges (3). However, the ad contained several factual inaccuracies. For example, the article claimed that the police had padlocked an on-campus dining hall to starve student protestors (4). In reality, this never happened. Lester B. Sullivan, the city Public Safety Commissioner for Mongomery, Alabama, who felt that the inaccuracies in the article reflected negatively on him and would damage his reputation, sued the Times for libel and was heard in an Alabama court. The case was presided over by Judge Water Burgwyn Jones and an all-white male jury (5). The jury ruled in favor of Sullivan and ordered the Times to pay Sullivan $500,000 in damages, an amount that was nearly enough to bankrupt the newspaper. On appeal, the Alabama State Supreme Court affirmed the jury’s decision. It wasn’t until the Times appealed to the Supreme Court of the United States that the Sullivan standard was born.
In a 9-0 decision, the Supreme Court ruled that in the case of New York Times Co. v. Sullivan that Alabama’s libel law violated the First Amendment (6). The libel law in Alabama, at the time, stated that a plaintiff could receive general damages without having to show that an individual’s speech actually harmed them in any substantial way. All a jury had to do was find that someone’s speech was about “and concerning” someone, and the groundwork was laid for the law to assume that the words were false and malicious in a libel suit.
In Justice Brennan’s decision, he established a new national standard for libel called “actual malice”.
The rationale behind the Court’s decision is clearly laid out in the unanimous decision. The opinion notes that issuing unlimited fines as punishment for intentional inaccuracies restricts free speech and press, a clear violation of the First Amendment. The decision was seen as a major win for the press: the “actual malice” rule set the standard for libel suits, making sure that the press wouldn’t be punished for "unintentional factual errors that are an unavoidable reality of publishing” (7). Later, this decision was expanded to not only public officials, but public figures, a term that still has some ambiguity surrounding it (8).
While the actual malice test was first made with the constraints that it would apply only to public officials, subsequent court cases found that public figures are also required to prove libel under the Sullivan standard. Justice Neil Gorsuch touches on the problem with this expansion in his dissenting opinion to Berisha v. Lawson: “In many ways, it seems we have arrived in a world…in which, ‘voluntarily or not, we are all public [figures] to some degree” (9). Lower courts have ruled that even private citizens can be considered “limited-purpose public figures” and held to the actual malice test. Hibdon v. Grabowski (10) saw the court making the decision that a business owner was a “limited-purpose public figure” for placing ads promoting his business on websites that are accessible internationally. If a victim of sexual assault chooses to enter the public sphere, even reluctantly. to confront their assailant, they may also be treated as a “limited purpose public figure” (11) .
In a world of influencers, where someone can post a TikTok and end up with millions of followers overnight, how can the actual malice test hold up? Private citizens are afforded a bit more flexibility with libelous statements and only have to show negligence in regard to compensatory damages (12). But when lower courts expand the standard to include “pervasively famous” individuals, how long is it until the standard is applied to almost everyone in a world where “it’s scarily easy to attract some degree of public notoriety in some media segment”? (13)
The rise of artificial intelligence poses an issue as well. In January 2024, popular American singer Taylor Swift found herself in the middle of a deepfake controversy, that saw sexually explicit images of Swift being circulated online, all of which received millions of views (14). If Taylor Swift were to sue an X user who reposted the video, she would be required to prove that the user acted with actual malice by sharing the video. If the user were to make the argument that they genuinely believed the video of Swift was real and that they relied on a source that appeared credible, there would be no remedy for Swift under defamation law. She wouldn’t be able to prove the two prongs required of actual malice. The actual malice test does not stand up in a world where incredibly realistic images and videos can be generated with a seven word prompt.
The most troubling issue that the Sullivan standard fails to address is the accountability gap that exists for plaintiffs and defendants. Under the standard, it is almost impossible for plaintiffs to prevail and prove that the defendants made false statements against them. It is almost impossible for courts to find that a X or Facebook post was made with actual malice.
A better way to protect both the press, speech, and still uphold the dignity of the court system we have to come to expect would be to establish a new standard. Here comes the introduction of a new standard: The Reasonable Verification Test. Under this new standard, the proponent of a statement can be found liable under defamation if it is determined that reasonable steps were not taken to verify the truth of statements in high-impact contexts.
To determine if this standard fits into the legal framework that exists today, it must be broken down. First, we have to establish what it means to take “reasonable steps”. Under negligence law (which falls under the same civil umbrella as defamation), there exists a standard called “the reasonable person standard”. This standard refers to the level of care that a reasonably prudent person would exercise in similar circumstances (15). This builds the foundation of what it means to “take reasonable steps”. Even though the freedom of speech is unrestricted, publishing information about someone, especially regarding topics that can damage someone’s reputation or their livelihood, must be verified. Doing things like researching the topic further, going into the community to interview witnesses, and making sure that there’s no way that the information is blatantly false would be actions that fall under taking reasonable steps.
Next, we have to verify what exactly it means for a statement to be made in high-impact contexts. This refers to any context in which the statement has an incredible ability to change the way the plaintiff is viewed and affect their livelihood. For an international artist like Taylor Swift, sexually explicit images could negatively affect how she’s viewed by the public, and thus reduce the amount of money she makes from her music and tours. This would be an example of a high-impact context. While this term isn’t borrowed from any precedent, the notion of being “high-impact” isn’t foreign in the legal landscape. Impact litigation refers to the strategic process of selecting and pursuing legal actions to achieve far-reaching and lasting effects beyond the particular case involved (16). This ties in with the idea of a “high-impact context". If the statement has the ability to achieve far-reaching and lasting effects, then it means the statement is being made in a “high-impact context”.
Together, this creates a new standard for courts to follow that doesn’t place an unfair burden on the plaintiff. Just like the burden that is used in criminal courts that requires juries to determine the defendant’s guilt beyond a “reasonable” doubt, this would instruct juries to look for ways that the defendant took reasonable steps to ensure that the information they shared was accurate.
The implications of implementing the Reasonable Verification Test are immense. The test would work to close the accountability gap by making defendants more responsible for the words they publish, adapt the current law to technology in our ever-changing media landscape, and ensure that our rights to freedom of speech are still protected.
Berisha v. Lawson, 141 S. Ct. 2424, 2427 (2021) (Gorsuch, J., dissenting from denial of certiorari), https://supreme.justia.com/cases/federal/us/594/20-1063/
New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964).
Id.
Supreme Court Historical Society, New York Times Company v. Sullivan (1964), Civics Supreme Court History, accessed December 28, 2025, https://civics.supremecourthistory.org/article/new-york-times-company-v-sullivan
Id.
Id.
Supreme Court Historical Society, New York Times Company v. Sullivan (1964), Civics Supreme Court History, accessed December 28, 2025, https://civics.supremecourthistory.org/article/new-york-times-company-v-sullivan
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), https://www.oyez.org/cases/1966/37
Berisha v. Lawson, 141 S. Ct. 2424, 2427 (Gorsuch, J., dissenting) (U.S. 2021), https://supreme.justia.com/cases/federal/us/594/20-1063/.
Hibdon v. Grabowski, 195 F.3d 547, 552–53 (7th Cir. 1999), https://law.justia.com/cases/federal/appellate-courts/F3/195/547/562322/.
Berisha v. Lawson, 141 S. Ct. 2424, 2427 (Gorsuch, J., dissenting) (U.S. 2021), https://supreme.justia.com/cases/federal/us/594/20-1063/.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 347–48 (U.S. 1974), https://supreme.justia.com/cases/federal/us/418/323/.
Berisha v. Lawson, 141 S. Ct. 2424, 2427 (Gorsuch, J., dissenting) (U.S. 2021), https://supreme.justia.com/cases/federal/us/594/20-1063/.
“Taylor Swift Deepfakes Spread Online, Sparking Outrage,” CBS News, January 26, 2024,https://www.cbsnews.com/news/taylor-swift-deepfakes-online-outrage-artificial-intelligence/.CBS News
Id.
IMMpact Litigation, “What Is Impact Litigation?”, IMMpact Litigation, https://www.immpactlitigation.com/about-us/what-is-impact-litigation/