New York Times v. Sullivan: Perspectives from History

Category: Forum

New York Times v. Sullivan: Perspectives from History

Samantha Barbas

Volume 30

, Issue 1

30 GEO. MASON L. REV. F. 1 (2023)

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,¹ 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.² She is challenging New York Times v. Sullivan,³ 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.⁴ Sullivan and subsequent cases made it significantly more difficult for public officials and public figures to win libel suits against the press.⁵ 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.⁶ Trump’s pronouncements, not to mention his many libel suits against the press, inspired further attacks on Sullivan.⁷ Criticism of Sullivan has come not only from conservative politicians and pundits, but also from members of the Supreme Court.⁸ 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.⁹ Litigants have since brought a series of cases in an effort to secure the overruling of Sullivan.¹⁰ 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.¹¹ 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.”¹² 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.¹³

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.¹⁴ 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.¹⁵ 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.¹⁶

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.¹⁷ 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.¹⁸ 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.¹⁹ 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.²⁰ Sullivan, however, wasn’t mentioned by name in the ad.²¹

The advertisement, which ran under the title “Heed Their Rising Voices,” contained minor errors of fact.²² The Times, in failing to fact-check the ad, hadn’t adhered to its well-established policy of vetting all copies for accuracy.²³ 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.²⁴ 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.²⁵ 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.”²⁶

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.²⁷ The seven Birmingham libel suits added just over $3 million in potential damages to the Times’ burden.²⁸ 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.²⁹ Journalists were literally facing loss of liberty for writing critically about segregation in Alabama. ³⁰

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 1960.³¹ The libel suits portended the bankruptcy of the New York Times.³² The Times’ lawyers made a historic decision, ordering all personnel to stay out of Alabama to avoid further libel trouble.³³ 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.”³⁴

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 $500,000.³⁵ It was the largest libel verdict in the state’s history and enormous by the standards of the day.³⁶ Noted one newspaper, “even the most intrepid publisher must be intimidated into silence.”³⁷

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.³⁸ 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.³⁹ 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.⁴⁰ 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.”⁴¹

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.⁴² 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.”⁴³ 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.⁴⁴

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.⁴⁵ Solomon Seay owned a small piece of land outside Montgomery that he used for farming; the state seized and auctioned it.⁴⁶ Sheriffs took the cars of Fred Shuttlesworth and Joseph Lowery.⁴⁷ 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.⁴⁸

After losing their appeal before the Alabama Supreme Court in 1962, the Times and the ministers appealed separately to the U.S. Supreme Court.⁴⁹ The ministers’ appeal focused on segregation in the trial proceedings and the racial animus that had given rise to the libel prosecutions.⁵⁰ The Times, represented by eminent Columbia University Professor Herbert Wechsler, focused on libel law’s threat to freedom of the press.⁵¹ 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.⁵² Criticism of public officials, Wechsler argued, was protected absolutely by the First Amendment.⁵³

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.⁵⁴ 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.⁵⁵ To the Justices, the libel suits represented another blatant example of southern resistance to federal antidiscrimination mandates that called out for remediation.⁵⁶ 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.⁵⁷ 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.⁵⁸ 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.”⁵⁹ 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.’”⁶⁰ 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.⁶¹ That debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”⁶² 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.”⁶³ Since 1964, these principles have formed the bedrock of modern First Amendment law.⁶⁴ 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.”⁶⁵ 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.⁶⁶ It concluded that the evidence in Sullivan’s case was insufficient to support such a finding.⁶⁷ 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.”⁶⁸ 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.⁶⁹ 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.⁷⁰

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.⁷¹ 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,⁷² Curtis Publishing Co. v. Butts,⁷³ and Gertz v. Robert Welch, Inc.,⁷⁴ 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.⁷⁵ 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.⁷⁶ 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.⁷⁷ 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.

Category: Forum

New York Times v. Sullivan: Perspectives from History

Share this article