March 9 marks the 58th anniversary of the Supreme Court’s decision in New York Times Co. v. Sullivan, a landmark case that constitutionalized libel law and set the standards for libel litigation that have now been in place for over a half century. 376 U.S. 253 (1964). Recently, Supreme Court Justices Clarence Thomas and Neil Gorsuch have called for revisiting the Sullivan rule, which intentionally places a high burden on public officials and public figures making a libel claim. Because the Sullivan standard has been so much a part of our tradition and culture, is fully consistent with the founders’ concept of free speech and press as articulated in the Constitution, has been embedded in our law and lives to make it a legal “super-precedent” for almost six decades, and, at bottom, is good public policy, I believe that reconsideration, let alone a revision, of Sullivan would be unwarranted.
The high court’s ruling in Sullivan was a historical necessity, stemming from a case brought in the midst of the civil rights movement.
L. B. Sullivan, a city commissioner of Montgomery, Alabama, in charge of the police department, sued the New York Times Company (Times) for a few false statements in an ad placed in the New York Times by Martin Luther King Jr. and his allies; signatories of the ad included the likes of Jackie Robinson, Eleanor Roosevelt, Marlon Brando, and Harry Belafonte. (Trivia factoid: Sullivan was not named in the ad, but because the ad alleged abuses on the part of the police department that he headed, he had standing to sue.)
Significantly, as documented by Anthony Lewis, a former columnist on the Times op-ed page and the author of Make No Law: The Sullivan Case and the First Amendment, Sullivan did not sue to redeem his reputation or get monetary recompense, the usual causes of libel suits. He sued as a member of the southern segregationist establishment to punish the Times for reporting on the abuses that were taking place in Alabama, and to intimidate the northern media with the fear of costly lawsuits so that they would leave the state and cease reporting on the assaults on civil rights workers.
Sullivan won a $500,000 verdict before a jury, and that verdict was affirmed by the Alabama appellate court. The Times sought and was granted Supreme Court review. However, as the ad did contain some defamatory falsities, reversal was problematic under then-governing law.
The Times’ lawyers, therefore, argued for a broader change in the law. They argued that such strict liability for making an innocent mistake about governmental action was incompatible with our country’s dedication to the proposition that critical speech about government was vital and, furthermore, that our system was based on the theory that our government was of the people, by the people, and for the people. They pointed to the repeal of the Sedition Act over 150 years earlier as a telling statement that criticism about government should not be punished but should, rather, be incentivized.
The Court unanimously agreed. In an eloquent opinion, Justice William Brennan, a Republican Eisenhower appointee, gave a ringing affirmation of the view that the First Amendment demanded that speech on public issues be “robust, uninhibited, and wide-open” and that there needed to be breathing room to make mistakes. He reflected upon a newspaper’s gathering of information evidencing corruption on the part of local officials: If the newspaper felt confident that the story was correct, even if it did not have every possible fact locked down, it should not be deterred from running the story for fear of liability and the enormous costs of defending a possible lawsuit. (He could hardly have imagined today’s legal fees of over $1,000/hour.) As long as the newspaper didn’t have “serious doubts” as to the truth or a “conscious awareness of probable falsity,” as the Court refined its test in cases a few years later, there should be not liability when the case is brought by public officials.
Interestingly, when President Donald Trump famously said he wanted to “open up our libel laws,” he said his goal was that “when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” Of course, apparently unbeknownst to him, that is almost exactly what the law now is: Publishing purposefully false facts, even about a public official, clearly can lead to legal liability. Indeed, the Court’s “serious doubts” test is more plaintiff-oriented than Trump’s formulation of lying.
Not altering this hard standard is especially important in today’s environment, where the number of local newspapers has decreased enormously because of the competition from the internet, resulting in a reduction of serious news coverage of local government. The last thing we need is a greater disincentive to cover possible corruption and negligence of local institutions because of fear of legal actions (including those by legal bullies such as Trump, who has a history of filing libel actions just to financially squeeze his enemies).
The commitment we have to the Sullivan rule is underscored in the Speech Act, enacted by Congress just 12 years ago. Generally speaking, our courts, under principles of international comity, will enforce judgments of foreign courts. But because foreign courts often offer less protection for speech about public officials than we have established here, this legislation bars U.S. courts from enforcing foreign libel judgments if they are inconsistent with our Constitution, i.e., the Sullivan rule. Many states have enacted similar laws—a remarkable demonstration of our fealty to protection of speech about public issues.
