New York Times v. Sullivan: Perspectives from History

Samantha Barbas
Volume 30, 
Issue 1

Sarah Palin’s loss in her libel suit in federal district court against the New York Times on February 14, 2022, over an inaccurate 2017 editorial linking her political action committee to a mass shooting,1Jeremy W. Peters, Sarah Palin’s Libel Claim Against the Times Is Rejected by a Jury, N.Y. Times (Feb. 15, 2022), could result in a challenge to the most significant First Amendment ruling in history. Palin has appealed to the Court of Appeals for the Second Circuit, with the likely intention of getting the case before the U.S. Supreme Court.2Cf. Brief of Appellant at 32–36, Palin v. N.Y. Times Co., 940 F.3d 804 (2022) (No. 22-558) (arguing “the press has become virtually impervious to liability for defamation” despite the Supreme Court’s counsel against a “‘blind application’ of the [actual-malice] rule” (quoting Curtis Pub. Co. v. Butts, 388 U.S. 130, 148 (1967)). She is challenging New York Times v. Sullivan,3376 U.S. 254 (1964). the landmark 1964 ruling in which the Court for the first time applied the First Amendment to libel law and held that public officials must show “actual malice” or “reckless disregard” of the truth in order to win a libel suit.4Brief of Appellant, supra note 2, at 32–34; see also Sullivan, 376 U.S. at 279–80. Sullivan and subsequent cases made it significantly more difficult for public officials and public figures to win libel suits against the press.5See Curtis Publ’g Co. v. Butts, 388 U.S. 130, 148, 153–54 (1967); Associated Press v. Walker, 389 U.S. 28, 28 (1967) (per curiam); Gertz v. Robert Welch, Inc., 418 U.S. 323, 342–43, 352 (1974). They freed the press and other speakers from the threat to free expression posed by strict libel laws.

Palin’s lawsuit is part of a growing movement to engineer the overruling of Sullivan. That movement has been going strong for at least six years now. Donald Trump, as candidate and president, announced his desire to eliminate Sullivan to make it easier to sue his liberal enemies in the press.6Michael M. Grynbaum, Trump Renews Pledge to ‘Take a Strong Look’ at Libel Laws, N.Y. Times (Jan. 10, 2018), Trump’s pronouncements, not to mention his many libel suits against the press, inspired further attacks on Sullivan.7See, e.g., Mike Leonard, Covington Catholic Defamation Suits to Hit NY Times, CBS, Others, Bloomberg L. (Feb. 24, 2020, 6:30 PM), Criticism of Sullivan has come not only from conservative politicians and pundits, but also from members of the Supreme Court.8See Matthew L. Schafer & Jeff Kosseff, The Most Important Supreme Court Precedent for Freedom of the Press Is in Jeopardy, Slate (Jan. 22, 2023, 10:30 AM), In July 2021, Justices Clarence Thomas and Neil Gorsuch, in opinions dissenting from the Court’s decision not to hear a libel case, urged the Court to reconsider Sullivan and subsequent cases that extended the Sullivan ruling.9Berisha v. Lawson, 141 S. Ct. 2424, 2424–25 (2021) (Thomas, J., dissenting); id. at 2425–30 (Gorsuch, J., dissenting); Adam Liptak, Two Justices Say Supreme Court Should Reconsider Landmark Libel Decision, N.Y. Times (Jul. 2, 2021),; see also McKee v. Cosby, 139 S. Ct. 675, 676 (2019) (Thomas, J., concurring) (asserting the Court should review Sullivan’s “actual-malice standard”). Litigants have since brought a series of cases in an effort to secure the overruling of Sullivan.10See Schafer & Kosseff, supra note 8; Michael M. Grynbaum, Trump Sues CNN For Defamation, Seeking $475 Million, N.Y. Times (Oct. 3, 2022),; Grayson Clary, At the Supreme Court, Another Hint of Trouble for New York Times v. Sullivan?, Reps. Comm. for Freedom Press (Jan. 18, 2022), If the Supreme Court takes up this suggestion and revisits Sullivan and its progeny, it could have devastating impacts on freedoms of speech and press—as the history of the Sullivan case makes clear.


Before New York Times v. Sullivan, states maintained strict, plaintiff-friendly libel laws to protect reputations from being unfairly tarnished by false statements.11See, e.g., Ala. Code 1940, tit. 7, § 913. Reputation is an important value, yet libel laws could be deployed to harass speakers in meritless cases. For example, defendants could be forced to prove the truth of their statements “in all their particulars.”12N.Y. Times Co. v. Sullivan, 376 U.S. 254, 267 (1964). The Supreme Court had said repeatedly before 1964 that the First Amendment did not protect defamatory statements; defamatory speech had no redeeming social value, it was said, and its regulation could be left to the states.13Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); Beauharnais v. Illinois, 343 U.S. 250, 266 (1952).

In the 1960s, southern officials weaponized libel law in an effort to attack northern newspapers that criticized segregation and exposed violence against civil rights protesters.14Cf. Advertisement, Heed Their Rising Voices, N.Y. Times, Mar. 29, 1960, Their objective was to halt media coverage of the civil rights movement. The South’s libel campaign against the northern press grew out of its “massive resistance,” its large-scale defiance of the Supreme Court’s desegregation decisions including Brown v. Board of Education.15See David J. Wallace, Massive Resistance and Media Suppression: The Segregationist Response to Dissent During the Civil Rights Movement 1 (2013). Segregationists feared the power of the press and its power to sway public opinion towards integration and civil rights, and with good reason—the nation’s mass media was at the peak of its influence and prestige in the 1950s and 60s. The primary target of this “libel attack” was the New York Times—the nation’s newspaper of record and a pioneer of civil rights coverage, renowned for its comprehensive reporting on the civil rights movement and its forthright editorial support of integration.16See Gene Roberts & Hank Klibanoff, The Race Beat: The Press, the Civil Rights Struggle, and the Awakening of a Nation 184–91 (2006).

New York Times v. Sullivan did not involve news reporting, but a paid advertisement that grew out of dramatic events surrounding lunch counter sit-ins in 1960. A civil rights organization called The Committee to Defend Martin Luther King and the Struggle for Freedom in the South published an advertisement in the Times that accused southern officials of committing violence against sit-in protesters, including tear-gassing them and arresting them.17Heed Their Rising Voices, supra note 14. The purpose of the ad was to raise funds for the defense of King, who had been brought up on meritless tax fraud charges in Alabama.18See Taylor Branch, Parting the Waters: America in the King Years 1954–63 at 287–89 (1988); Heed Their Rising Voices, supra note 14. The ad was purportedly signed by ministers who led King’s organization, the Southern Christian Leadership Conference (“SCLC”), but the ministers, in reality, hadn’t endorsed the ad.19Branch, supra note 18, at 287–89. L.B. Sullivan, Public Affairs Commissioner of Montgomery, Alabama, who supervised the police department, claimed he’d been defamed by statements in the advertisement that supposedly implicated Montgomery police in violence against protesters.20N.Y. Times Co. v. Sullivan, 376 U.S. 254, 288 (1964). Sullivan, however, wasn’t mentioned by name in the ad.21Id.

The advertisement, which ran under the title “Heed Their Rising Voices,” contained minor errors of fact.22It incorrectly reported the names of songs that student protesters sang on the capitol steps in Montgomery, falsely reported that authorities had padlocked the dining hall of the local college, and incorrectly stated that police “ringed” the campus, when in fact they entered campus on the request of school officials. Id. at 258–59, 289. The Times, in failing to fact-check the ad, hadn’t adhered to its well-established policy of vetting all copies for accuracy.23N.Y. Times, Advertising Acceptability Standards (1960), Yet the essence of the charges was true; Sullivan had been complicit in violence against activists, although perhaps not the specific acts described in the ad.24The police appear to have permitted whites to assault protesters, with police acting only after whites had attacked the protesters. Police Thwart Negro Services at Capitol, Montgomery Advertiser, Mar. 7, 1960, at 1; Claude Sitton, Negroes Dispersed in Alabama March; Attacked by Whites, N.Y. Times, Mar. 7, 1960, at 1, 14. Sullivan’s reputation wasn’t harmed. Being known for committing violence against civil rights protesters would enhance his reputation among whites in Montgomery at the time. Sullivan and three Montgomery commissioners sued the New York Times and four ministers, eminent leaders of the SCLC—Ralph Abernathy, Joseph Lowery, Solomon Seay, and Fred Shuttlesworth—for $500,000 each over the ad.25Sullivan, 376 U.S. at 278. Shortly after, the governor of Alabama, John Patterson, sued the Times, the ministers, and King for $1 million, claiming he’d been defamed by the ad’s references to Alabama “authorities.”26Alabama Governor Sues for $1,000,000, N.Y. Times, May 31, 1960, at 20.

Authorities in Birmingham, Alabama, wasted no time in bringing libel suits over Times reporting on racial violence in the city that was abetted by local officials, including Birmingham’s notorious Commissioner of Public Safety, Bull Connor.27See, e.g., Connor v. N.Y. Times Co., 310 F.2d 133 (5th Cir. 1962). The offending articles were Harrison E. Salisbury, Fear and Hatred Grip Birmingham, N.Y. Times, Apr. 12, 1960, at 1, 28, and Harrison E. Salisbury, Race Issue Shakes Alabama Structure, N.Y. Times, Apr. 13, 1960, at 1, 33. The seven Birmingham libel suits added just over $3 million in potential damages to the Times’ burden.28Samantha Barbas, Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan  84–85 (2023). A Times reporter was even brought up on charges for criminal libel for his reporting on Birmingham, which could have led to six months’ imprisonment.29Id. at 98–99. Journalists were literally facing loss of liberty for writing critically about segregation in Alabama. 30James E. Clayton, Case of Birmingham vs the New York Times, Wash. Post, Oct. 16, 1960, at E1.

This use of libel law to enact a coordinated, state-sponsored attack on a newspaper was unprecedented in the history of the press. The Alabama libel suits presented an existential threat to the New York Times, which operated on a low profit margin and was barely breaking even in 1960.31Susan E. Tifft & Alex S. Jones, The Trust: The Private and Powerful Family Behind the New York Times 320 (1st ed. 1999). The libel suits portended the bankruptcy of the New York Times.32James C. Goodale, Is the Public ‘Getting Even’ with Press in Libel Cases?, N.Y.L.J., Aug. 11, 1982, at 1. The Times’ lawyers made a historic decision, ordering all personnel to stay out of Alabama to avoid further libel trouble.33Freedom Forum Institute, Silencing the Press, NewseumED, Because of the libel suits, the nation’s newspaper of record didn’t have a single reporter in one of the major sites of civil rights activity during critical years of the civil rights movement. The chilling effect of the libel suits reverberated throughout the newspaper industry. Times editor Turner Catledge spoke for many in his field when he described the libel suits as a “new weapon of intimidation  . . . in the making.”34Roberts & Klibanoff, supra note 16, at 241.

In November 1960, an all-white jury in Montgomery concluded that the statements in the ad could be understood as defaming Sullivan and awarded him $500,000.35N.Y. Times Co. v. Sullivan, 376 U.S. 254, 256 (1964). It was the largest libel verdict in the state’s history and enormous by the standards of the day.36Arthur Osgoode, $500,000 Damages Awarded Sullivan by Times Suit Jury, Montgomery Advertiser, Nov. 4, 1960, at 1. Noted one newspaper, “even the most intrepid publisher must be intimidated into silence.”37Brief of Trib. Co. as Amicus Curiae Supporting Petitioner at 12, N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) (No. 39).

The successful libel suits against the Times spawned a wave of copycat lawsuits. Three Birmingham officials sued CBS for $1.5 million over a documentary called “Who Speaks for Birmingham,” which officials claimed cast the city’s leadership in a disparaging light for its treatment of racial issues.383 in Birmingham Sue C.B.S. for $1,500,000, N.Y. Times, Dec. 9, 1961, at 54. Arch-segregationist Edwin A. Walker, a retired Army general who led a white mob to protest the admission of James Meredith to the University of Mississippi, sued the Associated Press and ten media outlets for $20 million over accounts claiming that he’d encouraged the rioting.39John Herbers, Libel Actions Ask Millions in South: 17 Suits by Public Officials Are Pending in Courts, N.Y. Times, Apr. 4, 1964, at 12; see Curtis Publ’g Co. v. Butts, 388 U.S. 130, 140-41 (1967) (rendering judgment without a hearing of Walker’s case); see also Associated Press v. Walker, 389 U.S. 28 (1967) (per curiam) (reversing and remanding without rehearing). By 1964, CBS—publishers of the Saturday Evening Post—and the Associated Press, among others, faced over $288 million in potential damages over their civil rights reporting.40Herbers, supra note 39, at 12. The Columbia Journalism Review, putting it rather mildly, noted, “A good many publications are now under the shadow of potentially expensive [libel] actions. . . . The characteristic actions of the 1960’s appear to be suits growing out of local or regional retaliation for reporting or comment by a national [news] organization.”41Libel or Revenge, Colum. Journalism Rev., Fall 1963, at 2. .

The libel suits also imperiled the civil rights movement. This is a critical aspect of the litigation that has been overlooked in much of the scholarship and writing on Sullivan. King’s SCLC, the nation’s major civil rights organization, faced imminent destruction through massive libel judgments and high defense costs in the libel cases. As the segregationists intended, defending the libel suits tied up time and money that the SCLC needed for its desegregation campaigns, including voter-registration drives, Freedom Rides, and sit-ins at segregated facilities. The SCLC, which was financially precarious and dependent on donations, was hemorrhaging money in the libel cases. In 1961, the New York office of the SCLC spent $27,000 on defense in these libel cases—nearly one-tenth of its budget.42Southern Christian Leadership Conference Treasurer’s Report, SCLC Newsl. (S. Christian Leadership Conf., Atlanta, Ga.), Feb. 1962, at 1, 3; see also Wyatt Tee Walker, S. Christian Leadership Conf., Report of the Director: Semi-Annual Report November 1–April 30, 1960 at 6-7 (1960) (discussing the “great expense” resulting from the Sullivan litigation). King poignantly described the libel suits as a “sword with two cutting edges” that “not only deprives the victim of his economic security, but . . . undermines his confidence in law as he finds himself led through all the processes of a juridical system traditionally designed to insure justice, but which for him is perverted to accomplish oppression and injustice.”43Martin Luther King, Jr., Statement at Lawyers Advisory Committee Meeting, in 7 Papers of Martin Luther King, Jr. 218, 220 (Clayborne Carson & Tenisha Armstrong eds., 2014). . King, who knew that the libel suits threatened the existence of the SCLC, was determined to litigate the libel cases all the way to the Supreme Court if necessary. “We will not let these freedom fighters down,” he said.44SCLC to Carry Libel Suit to Supreme Court, Ala. Trib., May 19, 1961, at 1.

One of the greatest indignities in this saga occurred when Alabama authorities confiscated the ministers’ personal property to pay the libel judgments. When Ralph Abernathy returned home one day, he found that his five-year-old Buick Century had disappeared. Authorities towed it away earlier that day.45Abernathy Car Sold for $400 to Pay on Judgement, Ala. Trib., Mar. 3, 1961, at 1; Car Impounded as Libel Payment: Sheriff Acts on a Minister Convicted in Trial over New York Times Ad, N.Y. Times, Feb. 4, 1961, at 42. Solomon Seay owned a small piece of land outside Montgomery that he used for farming; the state seized and auctioned it.46Barbas, supra note 28, at 127–28. Sheriffs took the cars of Fred Shuttlesworth and Joseph Lowery.47Id. at 128. This harassment of the civil rights leaders wasn’t a trivial matter. All of the men were college-trained ministers. None earned more than $100 weekly. The persecution of the ministers was driving them from Alabama: Shuttlesworth left for Cincinnati shortly after his car was seized, and Lowery left Mobile for Nashville.48Id.; see also Branch, supra note 18, at 393 (“Shuttlesworth went so far as to announce that he had a job offer from a church in Cincinnati.”).

After losing their appeal before the Alabama Supreme Court in 1962, the Times and the ministers appealed separately to the U.S. Supreme Court.49N.Y. Times Co. v. Sullivan, 376 U.S. 254, 264 (1964). The ministers’ appeal focused on segregation in the trial proceedings and the racial animus that had given rise to the libel prosecutions.50Id. at 263 n.4. The Times, represented by eminent Columbia University Professor Herbert Wechsler, focused on libel law’s threat to freedom of the press.51Brief for the Petitioner at 29-30, N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) (No. 39); see Barbas, supra note 28, at 158–65 (discussing the development of Weschler’s First Amendment theory in Sullivan). To avoid confrontation with the Supreme Court’s well-established position on the constitutionally unprotected status of libel and the thorny issue of how reputation and free speech should be balanced, Wechsler shifted the focus from the right to protect reputation to the right to criticize the government. Wechsler argued that permitting Sullivan to recover on the theory that he was defamed by criticism of the “police” in Montgomery was akin to the defunct crime of seditious libel, under which government may punish its critics—a crime that had long been assumed to be unconstitutional.52Sullivan, 376 U.S. at 276; Brief for the Petitioner, supra note 51, at 30-31. Criticism of public officials, Wechsler argued, was protected absolutely by the First Amendment.53Brief for the Petitioner, supra note 51, at 38.

It isn’t difficult to figure out why the Supreme Court Justices agreed to hear the cases of the Times and the ministers. The Justices considered the petitions in the spring of 1963, as television screens and newspaper headlines flashed with shocking images of protesters, including young children, blasted by fire hoses and attacked by police dogs in Birmingham.54Lucas A. Powe, Jr., The Warren Court and American Politics 224–25 (2000). By that time, most of the country had concluded that the number one issue facing the nation was dismantling segregation. The Warren Court had a longstanding commitment to civil rights, with its landmark equal-protection rulings desegregating schools and other public facilities in the 1950s.55Lucy v. Adams, 350 U.S. 1, 1–2 (1955) (per curiam); Browder v. Gayle, 142 F. Supp. 707, 717 (M.D. Ala. 1956), aff’d per curiam sub nom., Owen v. Browder, 352 U.S. 903, 903 (1956); New Orleans City Park Improvement Ass’n v. Detiege, 252 F.2d 122, 123 (5th Cir. 1956), aff’d per curiam, 358 U.S. 54, 54 (1958); Gomillion v. Lightfoot, 364 U.S. 339, 346–48 (1960). To the Justices, the libel suits represented another blatant example of southern resistance to federal antidiscrimination mandates that called out for remediation.56See, e.g., NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 455 (1958); David J. Garrow, Bad Behavior Makes Big Law: Southern Malfeasance and the Expansion of Federal Judicial Power, 1954–1968, 82 St. John’s L. Rev. 1, 2–6 (2008). The libel suits threatened to undermine the viability of the nation’s newspaper of record and the critical work of the media in furthering the objectives of the civil rights movement.

In March 1964, the Court threw out Sullivan’s verdict, placed constitutional limits on libel laws, and ended the segregationists’ “libel attack.” In a groundbreaking opinion by Justice William Brennan, the Court observed that the central meaning of the First Amendment was citizens’ right to criticize government and its officials.57Sullivan, 376 U.S. at 282–83. Justice Brennan embraced Wechsler’s arguments framing the freedom to criticize government as the foundation of democracy but rejected Wechsler’s absolutist position. Instead, he fashioned “actual malice” as the main rule of the case, which he applied to both the Times and the ministers.58Id. at 279–80. Justice Brennan created the actual-malice standard as a way of providing First Amendment protection for speakers who criticized public officials, while at the same time allowing some protection for reputation. Under Sullivan, a public official could not recover damages for libel unless they could show that the statement was false and made with “‘actual malice’ . . . with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.”59Id. This protection was essential because “erroneous statement is inevitable in free debate,” and freedoms of expression must have “the ‘breathing space’ that they ‘need . . . to survive.’”60Id. at 271–72 (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)). In one fell swoop, the Court radically shifted the centuries-old balance between the protection of free speech and the protection of reputation.

Sullivan represented a major alteration in the Court’s thinking about the First Amendment. The decision seemed to offer a new paradigm for First Amendment jurisprudence, after years of government-friendly ad hoc balancing and unsatisfactory application of the clear and present danger rule. In one of the most decisive statements in history about the relationship between free speech and democracy, the Court professed a “national commitment” to “uninhibited, robust, and wide-open” debate of public issues.61Id. at 270. That debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”62Id. University of Chicago Law Professor Harry Kalven Jr., one of the era’s leading First Amendment scholars, described Sullivan as “a happy revolution of free-speech doctrine.”63Harry Kalven, Jr., The New York Times Case: A Note on “The Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev. 191, 205 (1964). Since 1964, these principles have formed the bedrock of modern First Amendment law.64See David A. Anderson, The Promises of New York Times v. Sullivan, 20 Roger Williams U. L. Rev. 1, 8–9 (2015). Sullivan has come to stand for the proposition that the First Amendment “give[s] the benefit of any doubt to protecting rather than stifling speech.”65FEC v. Wis. Right To Life, Inc., 551 U.S. 449, 469 (2007) (citing Sullivan, 376 U.S. at 269–70). Few Supreme Court decisions have had greater impact on First Amendment rights.

Justice Brennan knew that if the case were sent back to Alabama, the Times and the ministers would likely be harassed, and the jury would likely find for Sullivan again. As such, the opinion imposed two procedural safeguards to ensure that the case would come to a swift close. The opinion held that the facts in a libel case involving a public official must be proven with clear and convincing evidence, and that appellate judges must independently review the evidence in a public official libel case to decide if it could support a finding of actual malice.66Sullivan, 376 U.S. at 285–86. It concluded that the evidence in Sullivan’s case was insufficient to support such a finding.67Id. Justice Brennan knew that these rules would stop the libel attack cold and send an unequivocal message to the South that the Court was determined to enforce the new constitutional law of libel it had created.


New York Times v. Sullivan turned back the segregationist libel campaign and permitted the press to report on the activities of the civil rights movement—coverage that would surely have been undermined if the next wave of libel suits had gone through the courts without Sullivan’s protections. Post–Sullivan media coverage of the civil rights movement was indeed “robust and wide-open.”68Barbas, supra note 28, at 221. Reporting on civil rights protests in Selma, Alabama, the following year and the segregationist backlash against those protests helped to facilitate a national consensus on civil rights that led to the passage of the 1965 Voting Rights Act.69Anders Walker, “Neutral” Principles: Rethinking the Legal History of Civil Rights, 1934-1964, 40 Loy. U. Chi. L.J. 385, 431–33 (2009). Insofar as the success of the civil rights movement can be attributed, in significant part, to direct action protests and media coverage of those protests, Sullivan may have been one of the most consequential Supreme Court decisions for the advancement of the civil rights movement.

Since then, Sullivan has provided an important shield that has prevented the sort of large-scale libel trouble that the press confronted in the segregationist South. It has protected reporting on government and public affairs well beyond its original civil rights context. Disclosures about the Vietnam War and Watergate, among other scandals, might well have remained hidden if the press lacked Sullivan’s protections.70Archibald Cox, The Role of the Supreme Court in American Government 40 (1976).

The Sullivan rule is certainly not without flaws. Commentators on Sullivan over the years, including Justices Thomas, Gorsuch, and Kagan, have pointed out the imperfections of the actual-malice rule.71See Berisha v. Lawson, 141 S. Ct. 2424, 2424–25 (2021) (Thomas, J., dissenting); id. at 2526–30 (Gorsuch, J., dissenting); Elena Kagan, A Libel Story: Sullivan Then and Now, 18 Law & Soc. Inquiry 197, 199, 202 (1993). Because the standard is “reckless disregard” of whether a statement was false, it protects careless reporting. After the Court’s decisions in Associated Press v. Walker,72389 U.S. 28 (1967) (per curiam). Curtis Publishing Co. v. Butts,73388 U.S. 130 (1967). and Gertz v. Robert Welch, Inc.,74418 U.S. 323 (1974). Sullivan applies not only to public officials, but to public figures, a category the Court has construed expansively. A person who is only tangentially involved in public affairs, through making comments on social media, for example, could potentially be considered a public figure and have fewer reputational protections. Reputations can be easily and permanently injured online, and libel law does not offer a ready path to recourse.75See David A. Logan, Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan, 81 Ohio St. L.J. 759, 774, 778 (2020); Berisha, 141 S. Ct. at 2427–30 (Gorsuch, J., dissenting). Justice Gorsuch has recently argued that current social and technological conditions, with the rise of the internet and social media, are distinct enough from those that existed at the time of Sullivan to justify major alterations to the constitutional law of libel.76Berisha, 141 S. Ct. at 2427–30 (Gorsuch, J., dissenting). The fragility of reputation in the social media age is indeed a troubling reality that should concern us.

Yet these weaknesses should not detract from the overall wisdom of Sullivan. Libel law, as it existed before Sullivan, imperiled the work of media outlets seeking to hold officials accountable and to inform the public about critical issues of the day. It had a “chilling effect” on those seeking to use free expression to effect social change. The Supreme Court in 1964, and the American public more broadly, saw vividly and dramatically how libel law could be used to persecute critics of the status quo who spoke out on behalf of social justice—persecution that could easily occur today in the absence of Sullivan’s protections. As the Sullivan story illustrates, any changes to the Sullivan line of cases, such as those proposed by legislation introduced in Florida in February 2023, would make it substantially riskier for journalists to report on public figures and for all citizens to discuss and to comment on public affairs.77Emily Hockett, Florida Proposes to Really ‘Open Up’ Defamation Law, Reps. Comm. for Freedom Press (Mar. 6, 2023), It could herald a return to the sort of politicized “libel warfare” that existed before Sullivan. The Supreme Court’s decision in Sullivan marked a courageous and much-needed iteration of the centrality of free expression to a robust democracy, and it instituted a legal revolution from which we all continue to benefit.

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