Whether Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal sub silentio overturned the balance struck in New York Times Co. v. Sullivan and its progeny

QUESTION PRESENTED New York Times Co. v. Sullivan, 376 U.S. 254 (1964), St. Amant v. Thompson, 390 U.S. 727 (1968), and Harte-Hanks Communications, Ince. v. Connaughton, 491 U.S. 657 (1989), balanced the reputational interests of public figures in defamation cases with the First Amendment interests of defendants, by requiring that public figure plaintiffs meet the significant burden of proving “actual malice” by clear and convincing evidence at trial, but permitting plaintiffs to plead such claims and obtain discovery to establish defendants’ mental state and meet the actual malice standard. The question presented is whether Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), sub silentio overturned the balance struck in Sullivan and its progeny, and created a new, more robust privilege, permitting even intentional or reckless defamation of public figures so long as plaintiffs do not have the facts regarding the defendant’s mental state at the time of suit and would require discovery to prove that the defendant recklessly disregarded the truth.