In the early years of our country, public men who felt maligned could end up killing over it. The duel that resulted in Alexander Hamilton’s death was prompted by a letter, in the Albany Register, by someone claiming that Hamilton had called Aaron Burr “a dangerous man, and one who ought not to be trusted with the reins of the government,” and had expressed a “still more despicable opinion” (without further specifics). Instead of redressing an insult to honor through violence, Burr could have tried to sue under the law of defamation—the legal system’s attempt to channel retaliation into a court process. He was certainly familiar with it; as a lawyer, he had used it to go after critics. One probable reason he didn’t was that it was undignified for a gentleman to take a social equal to court.
In the decades that followed, putative defamers became more likely to pay for their words with money than with their lives. Only in the past sixty years, though, did the legal balance shift strongly in their favor: wrecking reputations has, under civil law, become much less risky. The media, for the most part, have been free to publish about public figures without great fear of legal repercussions. That protection derives from New York Times v. Sullivan, a 1964 Supreme Court decision that made it harder to win defamation suits against the media. The Court had argued that the press in a democracy must be able to criticize government officials, and the landmark decision is widely seen as indispensable to a free press.
Accordingly, many people have become alarmed at the prospect that a conservative Supreme Court might reconsider it, something that two Justices have proposed. And yet, as became clear during the legal clash between Dominion Voting Systems and Fox News, liberals themselves have conflicting intuitions on the topic. Certainly, the free-for-all of misinformation that culminated in the January 6th attack has complicated easy old-school rhetoric about unfettered speech and democracy. So it’s worth asking how the sixty-year-old precedent holds up and in what form it should survive in the twenty-first century.
The Warren Court’s expansion of civil rights and civil liberties sometimes occurred in cases where the Court’s concern with race discrimination in America was subtext. But, in the case behind New York Times v. Sullivan, race discrimination was overtly at issue. A new book, “Actual Malice” (California), by Samantha Barbas, a law professor and historian, unfurls the story of the case and reminds readers that the triumph of press freedom was an outgrowth of the civil-rights struggle. Versions of the story have been told before, perhaps most famously in Anthony Lewis’s “Make No Law,” more than three decades ago. Yet Barbas deftly employs archival sources—notably from the Times, from the Martin Luther King, Jr., papers, and from the Southern Christian Leadership Conference—to shed new light. Her book illuminates the effect of libel suits on journalists’ ability to cover the movement, the legal strategies used against those suits, and the impact of the case on the civil-rights movement itself. A heroic narrative in which the litigation helped vanquish segregationists serves to underscore what Barbas calls the “centrality of freedom of speech to democracy.”
When the case arose, it was relatively easy to sue the media for defamation. In most states, libel law was weighted heavily against newspapers, even in circumstances where the falsehood was an honest mistake or merely an exaggerated opinion. Henry Ford won a libel claim against the Chicago Tribune after it called him an “ignorant idealist” and an “anarchist”; Theodore Roosevelt prevailed against a newspaper from Ishpeming, Michigan, that maintained, “He gets drunk . . . not infrequently.” Through the mid-twentieth century, newspapers responded to the peril of libel suits by becoming more attentive to factual accuracy in their reporting. The volume of libel suits declined and settled down.
Then the Times began covering the civil-rights movement. After Brown v. Board of Education, newspaper articles reporting on the Southern campaign of resistance to desegregation—including the mobbing of Black students attempting to integrate schools, the acquittal of Emmett Till’s killers, and brutal acts of official violence against civil-rights activists—provoked retaliation by segregationists, who felt vilified by the Northern press. The targeting of journalists covering the struggle started with reporters’ having eggs thrown at them and evolved into a full-blown, coördinated legal strategy—the “libel attack”—in which lawsuits in state courts were used to drive Northern media out of the South. It was in this context that Montgomery officials filed a libel suit against the Times in Alabama courts.
The statements at issue appeared not in a news article but in a full-page ad taken out in 1960 by a committee raising money for King’s legal defense. (State officials in Alabama, aiming to take him down, had accused him of falsifying tax returns and, in a prosecutorial novelty, charged him with perjury.) The ad, headed “Heed Their Rising Voices,” described how “thousands of Southern Negro students are engaged in widespread non-violent demonstrations,” and went on:
Reporting that King had been arrested seven times, it urged readers to support “with your dollars” his defense as well as the defense of “the embattled students—and the struggle for the right-to-vote.”
Many details in the ad were factually inaccurate. The Montgomery police hadn’t “ringed” the campus; the song was not “My Country, ’Tis of Thee” but “The Star-Spangled Banner”; student leaders were expelled not for singing it in a demonstration but for a lunch-counter sit-in; the “entire” student body did not refuse to re-register; the dining hall was not padlocked; there was no attempt to starve the students into submission; and King was arrested four times, not seven. Even the list of signatories was off: it included twenty Black ministers associated with the S.C.L.C., King’s organization, without their knowledge or consent.
The errors exposed the Times to a libel suit that seemed an easy win for Montgomery officials, including L. B. Sullivan, a commissioner whose remit included the police. In coördination with other libel suits in Alabama, the goal was to destroy the S.C.L.C. (several unsuspecting S.C.L.C. ministers named in the ad were also accused of defamation), to topple the Times, and to discourage newspapers from reporting sympathetically on civil rights in the South. During much of the ensuing litigation, which stretched from 1960 until the Supreme Court decision in 1964, the threat of libel suits was so substantial that the Times ordered its reporters to stay out of Alabama.
The Montgomery circuit-court judge who presided over the trial, with a jury of twelve white men, was a leader of his state’s efforts against desegregation. He enforced a segregated courtroom, in which some prospective jurors came dressed in Confederate uniforms. He used “Mr.” to address white lawyers but not Black lawyers, and declared that the trial would be ruled by “white man’s justice . . . brought over to this country by the Anglo-Saxon Race.” Sullivan was awarded five hundred thousand dollars in damages (equivalent to some five million dollars today) and prevailed when the case was appealed to Alabama’s highest court, which was also a stronghold of white supremacy.
Around this time, Justice Hugo Black, who was from Alabama and had once joined the Ku Klux Klan but was now among the Court’s most liberal Justices, gave a surprising speech about libel and the First Amendment. Employing a formalist, literalist, even absolutist approach to the Constitution, he read the First Amendment as reflecting the Framers’ intent to rid the United States of defamation law; false and reputation-damaging statements were constitutionally protected.
Likely taking a cue from Black’s remarks, the lawyer who represented the Times before the Supreme Court, the Columbia Law School professor Herbert Wechsler, brilliantly reframed the case’s significance. To the extent that it was about an error-riddled ad that allegedly damaged people’s reputations—essentially, a personal-injury case—it was bound to be a loser. Instead, Wechsler transformed the matter into a lofty reflection on democracy and press freedom; a democracy required a well-informed electorate and could not function, he argued, if citizens feared being penalized for criticizing government officials.
The Supreme Court unanimously found in favor of the Times. Its opinion, by Justice William J. Brennan, said that the First Amendment prohibited holding a speaker liable for a false statement about a public figure, unless he made it with “actual malice”—which was defined as knowledge of, or reckless disregard of, the statement’s falsity. For the very first time, the Court recognized that First Amendment rights could curb traditional rules that regulated defamatory speech.
The opinion asserted “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Truth was not a requirement for speech protected by the First Amendment, the Court said. “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions” would lead to “self-censorship.”
In the following decades, the Court expanded the Sullivan rule. In 1967, Curtis Publishing Company v. Butts applied “actual malice” to public figures beyond officials. In 1968, St. Amant v. Thompson held that a failure to try to verify inflammatory charges does not necessarily constitute reckless disregard. The Court did not dispute the objection that “such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant’s testimony that he published the statement in good faith and unaware of its probable falsity.” Still, it concluded that “neither the defense of truth nor the standard of ordinary care” would “adequately implement First Amendment policies.”
Meanwhile, the definition of a “public figure” grew expansive. Gertz v. Robert Welch, Inc., in 1974, held that a private person could become a public figure if he “voluntarily injects himself” into a public controversy or even if he is involuntarily “drawn into” one. In time, it became easier to assert that a plaintiff counted as a public figure, giving the Sullivan standard a wide reach. Its approach toward speech deemed of public concern was, in turn, so influential that it arguably spread beyond defamation to impose restrictions on civil suits claiming intentional infliction of emotional distress; in 2011 a military father lost a case against anti-gay protesters picketing outside his son’s funeral.
The press tends to take for granted that New York Times v. Sullivan is necessary for democracy. But is it? On the one hand, Sullivan still allows deep-pocketed litigants to target truthtellers who lack assets, tying them up in procedural hurdles that effectively chill speech. On the other hand, the Sullivan doctrine (encompassing the 1964 case and succeeding ones that expanded its purview) has made it largely permissible to disseminate falsehoods about an enormous range of people and entities, as long as the speaker, writer, or publisher didn’t know that the statement was false or didn’t harbor serious doubts about its accuracy, so as to display “reckless disregard” for the truth. What’s more, the “reckless disregard” test involves inquiry into a defendant’s state of mind: it’s seldom easy to establish that a falsehood wasn’t spread in the sincere belief that it was true. The case effectively permits the publication of negligently false statements about public figures, very broadly defined, in the name of protecting the debate and criticism needed to make a democracy work.
Recently, the doctrine’s critics on the Court have been making themselves heard. Three times in the past four years, as the Court refused to hear cases that could have prompted a reconsideration of New York Times v. Sullivan, Justice Clarence Thomas responded by flatly condemning the ruling. The first was in a case that, after #MeToo, has become a standard type of defamation suit: a woman accused Bill Cosby of rape, his lawyer called her dishonest, and she sued Cosby for defamation. Thomas disparaged Sullivan and its progeny as “policy-driven decisions masquerading as constitutional law,” because making a plaintiff prove that a defendant had a reckless disregard for the truth is inconsistent with the founding-era common law of libel, which lacked a “heightened liability standard” and often presumed the defendant’s malice. In another case, Thomas asserted that the common law traditionally treated lies about public figures as more troubling than lies about ordinary people, and so—inverting the logic of Sullivan—public figures may deserve more protection, not less. (He cited the “Pizzagate” conspiracy theory as an example of a hurtful falsehood.)
It doesn’t seem a stretch to wonder whether Thomas’s stormy confirmation, featuring sexual-harassment accusations that he denied and that forever harmed his reputation, has led him to approach defamation law with sympathy for those who feel defamed. As a Presidential candidate, Donald Trump, aggrieved by mainstream media’s reporting on his misdeeds, promised to “open up” the libel laws, which he called “impotent” and “unfair.” Trump’s crusade continued during his Presidency; he described libel laws as “a sham and a disgrace.” He also appointed at least one Justice who is skeptical of Sullivan: Neil Gorsuch.
Where Thomas’s objections are originalist and historical in nature, Gorsuch’s tend toward the empirical. He observes that “our Nation’s media landscape has shifted in ways few could have foreseen,” with misinformation thriving amid the shuttering of newspapers, the decline of network news, the rise of online media, and the fading of robust fact-checking norms. Because “everyone carries a soapbox in their hands,” he thinks, dissenting views wouldn’t be squelched by lessening constitutional protection for false statements. The definition of “public figure,” meanwhile, has become so expansive that, he writes, private citizens “can become ‘public figures’ on social media overnight.” For all these reasons, he has suggested, the 1964 ruling is ill matched to the modern media environment. Gorsuch has called the case an “ironclad subsidy for the publications of falsehoods by means and on a scale previously unimaginable.”
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