Is New York Times v. Sullivan in danger?

Published Feb. 2019

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

The basis of modern American media law is the 1964 ruling in New York Times v. Sullivan, in which a unanimous U.S. Supreme Court recognized that the First Amendment required that limitations be placed on defamation law. But the Sullivan decision has been the subject of criticism in some circles ever since it was decided, the latest being a concurring opinion by Justice Clarence Thomas.

L.B. Sullivan, an elected city commissioner who oversaw the police department on Montgomery, Ala. sued the Times and others over a fundraising advertisement in the paper placed by supporters of the Civil Rights Movement. The ad recounted some of the recent civil rights protests in the South, and alleged inappropriate reactions and persecution of civil rights protesters and leaders by the authorities.

Among the incidents described in the ad were the alleged actions of the police in Montgomery during marches in support of a sit-in at a lunch counter in the county courthouse. But there were minor mistakes in the ad, and Sullivan and Alabama Governor John Patterson sued, claiming that the statements in the ad implied that they had acted improperly and harmed their reputations.

While Patterson dropped his suit after the Times apologized, Sullivan’s case continued and resulted in a jury verdict of $500,000. This verdict was affirmed by the Alabama Supreme Court.

But when the case reached the United State Supreme Court, the unanimous court reversed the verdict, ruling that, “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

This “actual malice” rule was later extended to public figures, and is the basis for most court decisions applying and interpreting the First Amendment for the more than 50 years since Sullivan was decided. Free speech advocates hailed the decision, with scholar Alexander Meiklejohn famously calling the ruling “an occasion for dancing in the streets.”

While there were no dissents in the Sullivan ruling, in the years since there have been several criticisms of the decision.

This includes from some of the justices who participated in the Sullivan ruling. In his opinion concurring with the judgment in a 1985 case that helped refine how the Sullivan ruling applied in when a plaintiff was neither a public official nor a public figure, Justice Byron White expressed regret for the “actual malice” test that he had agreed with in Sullivan.  “I have,” he wrote, “ … become convinced that the Court struck an improvident balance in the New York Times case between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation.” Chief Justice Warren Burger, who joined the court four years after Sullivan was decided but presided over the several of the cases that refined the Sullivan standard, agreed with White in his own concurring opinion.

The following year, in his own dissent from the court’s denial of review in a case that questioned the result in Sullivan, Burger wrote that previously he had “express[ed] my agreement with Justice White that New York Times Co. v. Sullivan should be reexamined,” and that the court should have agreed to review the case and “give plenary attention to this important issue.”

White and Burger’s criticism of Sullivan focused on the “actual malice” standard, which they saw as an impediment to recognizing that public officials and public figures can indeed be severely harmed by defamatory statements, with the law not permitting any sort of recovery for this injury. This was particularly true for limited-purpose public figures, who become involved in a matter of public interest often through no action of their own.

Current Supreme Court Justice Elena Kagan endorsed this view in a law review article written when she was a law professor. When she was asked about this during her confirmation hearing, she said that “libel can harm people,” and that when someone is “dragged” into the public spotlight it may be unfair to require them to show actual malice in a libel case. “The question I was asking was whether the balance had been struck appropriately in that sort of case,” she said, adding that “we understand the absolute necessity for a New York Times v. Sullivan sort of rule [for lawsuits by public officials].”

Another criticism of the Sullivan decision has come from constitutional conservatives, who argue that the Sullivan “actual malice” rule goes beyond the intentions of the drafters of the First Amendment, and should not have been adopted unilaterally by the courts. “[The Sullivan decision] may be right,” late Justice Antonin Scalia said in 2011. “But if it was right it should have been adopted by the people. It should have been debated in the New York legislature, and the New York legislature could have said, “Yes, we’re gonna change our libel law.’”

This is similar to the argument that Thomas made in his recent concurrence. The case was an appeal by one of the women who accused actor Bill Cosby of rape, and then sued him for libel when he denied the charge and disparaged his accusers. Cosby was eventually convicted and imprisoned for one of the rapes, even as his appeal continues. In the libel case the trial and appeals court held that the accuser was a public figure who had to show actual malice. The Supreme Court was asked to review this determination.

Thomas agreed with the Court that it should not consider that “fact-based question.” But he added that “in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place.” He continued to say that “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. … Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”

Of course, President Trump has also criticized current libel law, erroneously lamenting, for example, “Isn’t it a shame that someone can write an article or book, totally make up stories and form a picture of a person that is literally the exact opposite of the fact, and get away with it without retribution or cost.” Of course, the actual malice standard means that “made-up stories” can indeed lead to damages for libel, even for a public figure.

It is unclear how much support Thomas’s approach has on the current Supreme Court. It is noteworthly, for example, that no other justices joined Thomas’s opinion. And it would take the votes of four justices for the court to consider a case that would allow for the reversal of the New York Times v. Sullivan precedent, and the votes of five justices to actually do so. Such a decision could potentially upset more than 50 years of precedent from the Supreme Court and lower courts, a move that courts traditionally avoid. And, as shown above, other justices have expressed desires to re-examine Sullivan and the cases that stemmed from it, but there has been no serious moves to reject this legacy.

Nevertheless, Thomas’s opinion is a reminder that American libel law based on Sullivan, and the broad protection that it gives for reporting and discussion of matters of public interest involving public figures, it not a given. What was established by the unanimous court in Sullivan in 1964 could be limited or even eviscerated by a majority of the Supreme Court sometime in the future.
Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.

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