New York Times Co. v. Sullivan
New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a landmark decision of the U.S. Supreme Court ruling that the freedom of speech protections in the First Amendment to the U.S. Constitution restrict the ability of American public officials to sue for defamation. Specifically, it held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, not only must he or she prove the normal elements of defamation—publication of a false defamatory statement to a third party—he or she must also prove that the statement was made with "actual malice", meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.
|The New York Times Co. v. Sullivan|
|Argued January 6, 1964|
Decided March 9, 1964
|Full case name||The New York Times Company v. L. B. Sullivan|
|Citations||376 U.S. 254 (more)|
|Prior||Judgment for plaintiff, Circuit Court, Montgomery County, Alabama; motion for new trial denied, Circuit Court, Montgomery County; affirmed, 144 So. 2d 25 (Ala. 1962); cert. granted, 371 U.S. 946 (1963).|
|A newspaper cannot be held liable for making false defamatory statements about the official conduct of a public official unless the statements were made with actual malice.|
|Majority||Brennan, joined by Warren, Clark, Harlan, Stewart, White|
|Concurrence||Black, joined by Douglas|
|Concurrence||Goldberg, joined by Douglas|
|U.S. Const. amends. I, XIV|
The case began in 1960 after The New York Times published a full-page advertisement by supporters of Martin Luther King Jr. that criticized the police in Montgomery, Alabama, for their mistreatment of civil rights protesters. However, the ad had several factual inaccuracies, such as the number of times King had been arrested during the protests, what song the protesters had sung, and whether or not students had been expelled for participating. In response, Montgomery police commissioner L. B. Sullivan sued the Times in the local county court for defamation. The judge ruled the advertisement's inaccuracies were defamatory per se, and the jury returned a verdict in favor of Sullivan and awarded him $500,000 in damages. The Times appealed the verdict to the Supreme Court of Alabama, which affirmed it. It then appealed to the U.S. Supreme Court, which agreed to hear the case and ordered certiorari.
In March 1964, the Court issued a unanimous 9–0 decision holding that the Alabama court's verdict violated the First Amendment. The decision defended free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press. Before this decision, there were nearly $300 million in libel actions from the southern states outstanding against news organizations, as part of a focused effort by southern officials to use defamation lawsuits as a means of preventing critical coverage of civil rights issues in out-of-state publications. The Supreme Court's decision, and its adoption of the actual malice standard, reduced the financial exposure from potential defamation claims, and thus frustrated the efforts of public officials to use these claims to suppress political criticism.
The Supreme Court has since extended the decision's higher legal standard for defamation to all "public figures", beginning with the 1967 case Curtis Publishing Co. v. Butts. Because of the high burden of proof required and the difficulty of proving a defendant's real knowledge, these decisions have made it extremely difficult for a public figure to win a defamation lawsuit in the United States.
On March 29, 1960, The New York Times carried a full-page advertisement titled "Heed Their Rising Voices", paid for by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. In the advertisement, the Committee solicited funds to defend Martin Luther King Jr., against an Alabama perjury indictment. The advertisement described actions against civil rights protesters, some of them inaccurately, some of which involved the police force of Montgomery, Alabama. Referring to Alabama "official authority and police power", the advertisement stated: "They have arrested [King] seven times. ... ", whereas he had been arrested four times; and that "truckloads of police ... ringed the Alabama State College Campus" after the demonstration at the State Capitol, whereas the police had been "deployed near" the campus but had not actually "ringed" it and had not gone there in connection with the State Capitol demonstration. Although the Montgomery Public Safety commissioner, L. B. Sullivan, was not named in the advertisement, Sullivan argued that the inaccurate criticism of actions by the police was defamatory to him as well because it was his duty to supervise the police department.
Because Alabama law denied public officers recovery of punitive damages in a libel action on their official conduct unless they first made a written demand for a public retraction and the defendant failed or refused to comply, Sullivan sent such a request. The Times did not publish a retraction in response to the demand. Instead, its lawyers wrote a letter stating, among other things, that "we ... are somewhat puzzled as to how you think the statements in any way reflect on you," and "you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you."
Sullivan did not respond but instead filed a libel suit a few days later. He also sued four African-American ministers mentioned in the ad: Ralph Abernathy, S.S. Seay, Sr., Fred Shuttlesworth, and Joseph Lowery.
The Times subsequently published a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who alleged the publication charged him with "grave misconduct and ... improper actions and omissions as Governor of Alabama and ex officio chairman of the State Board of Education of Alabama." When asked to explain why there had been a retraction for the Governor but not for Sullivan, the Secretary of the Times testified:
We did that because we didn't want anything that was published by the Times to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the state and we had by that time learned more of the facts which the ad purported to recite and, finally, the ad did refer to the action of the state authorities and the Board of Education presumably of which the Governor is the ex officio chairman ...
Sullivan secured a judgment for $500,000 in the Alabama state trial court. The state supreme court affirmed on August 30, 1962, saying "The First Amendment of the U.S. Constitution does not protect libelous publications". The Times appealed to the United States Supreme Court.
Constitutional law scholar Herbert Wechsler successfully argued the case before the United States Supreme Court. Louis M. Loeb, a partner at the firm of Lord Day & Lord who served as chief counsel to the Times from 1948 to 1967, was among the authors of the brief of the Times.
The Supreme Court held that news publications could not be liable for libel to public officials unless the plaintiff meets the exacting actual malice standard in the publication of the false statement. The Court's decision for The Times was unanimous, 9–0. Citing an earlier court opinion Justice William Brennan Jr. said “that public discussion is a political duty, and that this should be a fundamental principle of the American government.” Such discussion, he added, must be “uninhibited, robust, and wide-open,” and “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The Civil Rights Movement context of the ad at issue was central for the court because the ad was “an expression of grievance and protest on one of the major public issues of our time.” Despite the fact the ad contained minor errors Alabama officials could not simply suppress the criticism contained in the underlying ad. “Erroneous statement is inevitable in free debate,” Justice Brennan reasoned, and “must be protected if the freedoms of expression are to have the breathing space that they need to survive.”
The rule of law applied by the Alabama courts was found unconstitutional for its failure to provide safeguards for freedom of speech and the press, as required by the First and Fourteenth Amendment. The decision further held that even with the proper safeguards, the evidence presented in the case was insufficient to support a judgment for Sullivan. In sum, the court ruled that "the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with the knowledge that they are false) or in reckless disregard of their truth or falsity."
The decision allowed newspapers more freedom to report on the widespread chaos and police abuse during the Civil Rights Movement.
Common law malice
In Sullivan, the Supreme Court adopted the term "actual malice" and gave it constitutional significance.
The Court held that a public official suing for defamation must prove that the statement in question was made with actual malice. In his concurring opinion, Justice Black explained, "'Malice,' even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice is proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment."
The term "malice" came from existing libel law, rather than being invented in the case. In many jurisdictions, including Alabama, proof of "actual malice" was required for punitive damages or other increased penalties. Since a writer's malicious intent is hard to prove, proof the writer knowingly published a falsehood was generally accepted as proof of malice, under the assumption that only a person with ill intent would knowingly publish something false. In Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95 (1930), similarly, the court said:
The plaintiff alleges that this criticism of him and his work was not fair and was not honest; it was published with actual malice, ill will, and spite. If he establishes this allegation, he has made out a cause of action. No comment or criticism, otherwise libelous, is fair or just comment on a matter of public interest if it is made through actual ill will and malice. (p. 106)
In an oft-quoted line, Justice Brennan acknowledged that the actual malice standard may protect inaccurate speech, but that the "erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the 'breathing space' that they need to survive." The United States, Brennan noted, is founded on the "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."
The rule that somebody alleging defamation should have to prove untruth, rather than that the defendant should have to prove the truth of a statement, stood as a departure from the previous common law. In England, the development was specifically rejected in Derbyshire County Council v. Times Newspapers Ltd and it was also rejected in Canada in Hill v. Church of Scientology of Toronto and more recently in Grant v. Torstar Corp. In Australia, the outcome of the case was followed in Theophanous v. The Herald & Weekly Times Ltd, but Theophanous was itself overruled by the High Court of Australia in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
In 2014, on the 50th anniversary of the ruling, The New York Times released an editorial in which it stated the background of the case, laid out the rationale for the Supreme Court decision, critically reflected on the state of freedom of the press 50 years after the ruling and compared the state of freedom of the press in the United States with other nations. The editorial board of The New York Times heralded the Sullivan decision not only as a ruling which "instantly changed libel law in the United States", but also as "the clearest and most forceful defense of press freedom in American history." The board added:
The ruling was revolutionary because the court for the first time rejected virtually any attempt to squelch criticism of public officials—even if false—as antithetical to "the central meaning of the First Amendment." Today, our understanding of freedom of the press comes in large part from the Sullivan case. Its core observations and principles remain unchallenged, even as the Internet has turned everyone into a worldwide publisher—capable of calling public officials instantly to account for their actions and also of ruining reputations with the click of a mouse.
In a 2015 TIME Magazine survey of over 50 law professors, both Owen Fiss (Yale) and Steven Schiffrin (Cornell) named New York Times v. Sullivan "the best Supreme Court decision since 1960," with Fiss noting that the decision helped cement "the free-speech traditions that have ensured the vibrancy of American democracy" and Schiffrin remarking that the case "overturned the censorial aspects of the law of libel and made it far easier in what’s left of our democracy for citizens—including the Fourth Estate—to criticize the powerful."
- Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) held that public figures who are not public officials may still sue news organizations if they disseminate information about them which is recklessly gathered and unchecked.
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974): Actual malice not necessary for defamation of private person if negligence is present.
- Time, Inc. v. Hill, 385 U.S. 374 (1967). Extension of actual malice standard to false light invasion of privacy tort.
- Hustler Magazine v. Falwell, 485 U.S. 46 (1988): Extending standard to intentional infliction of emotional distress.
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990): Existing law is sufficient to protect free speech without recognizing opinion privilege against libel claims.
In February 2019, the Supreme Court denied a petition brought by Katherine McKee, one of the women that accused Bill Cosby of sexual assault, which claimed that Cosby had leaked a letter that permanently damaged her reputation, and had sought civil action against Cosby on this matter. Lower courts rejected her case based on New York Times Co., stating that she "thrust herself to the forefront of a public controversy", making her a limited public figure and requiring the higher standard of malice to be demonstrated. The denial by the Supreme Court did not include a vote count, but Justice Clarence Thomas wrote the solitary opinion on the case, agreeing that denial was appropriate per New York Times Co., but stating that he believed that decision of New York Times Co. was made wrongly. Thomas wrote "If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we". The views of Thomas, a conservative, mirrored that of President Donald Trump, who had repeatedly called for the review of libel laws in the United States to give those defamed by others a "meaningful recourse in our courts".
In March 2021, federal judge Laurence Silberman called on the Supreme Court to overturn New York Times v. Sullivan, stating that the New York Times and The Washington Post are "virtually Democratic Party broadsheets". Silberman's dissent also accused big tech companies of censoring conservatives and warned that "Democratic Party ideological control" of mainstream media may be a prelude to an "authoritarian or dictatorial regime" that constitutes "a threat to a viable democracy".
Judge Silberman's dissent produced significant public discussion of Sullivan and potential reforms. Many conservative-leaning outlets endorsed Silberman's criticisms of Sullivan. Most liberal-leaning outlets and several moderate conservatives condemned Silberman's decision for its tone and the substantive idea of loosening defamation standards. However, some liberal scholars and a Harvard Law student writing in the Wall Street Journal embraced significant reforms to Sullivan.
In the July 2021 denial of certiorari in Berisha v. Lawson, Justice Thomas reiterated his opposition to New York Times v. Sullivan. Justice Neil Gorsuch also questioned the usefulness of NYT v. Sullivan when applied to today's media and social media.
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- Heed Their Rising Voices Advertisement, courtesy of the National Archives
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- Derbyshire County Council v. Times Newspapers Ltd  AC 534
- Hill v. Church of Scientology of Toronto  2 SCR 1130
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- Edmondson, Aimee. "Rearticulating New York Times v. Sullivan as a Social Duty to Journalists", Journalism Studies 18, no. 1 (Jan 2017): 86-101. response to Donald Trump's campaign promise to " "open up" libel laws to make it easier for officeholders to sue the media.
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