New York Times v. Sullivan Supreme Court Decision and its Impact on Libel Law: the Case, the Context and the Consequences
Aimee Edmondson, Ph.D. and Associate Professor and Director for Graduate Studies at Ohio University, has recently published a new book, In Sullivan’s Shadow on the landmark libel US Supreme Court case New York Times v. Sullivan. In the current contentious climate where even the weather has become a political topic, and with President Trump courting a combative relationship with the news media, this case from the Civil Rights Era (1964) has a new resonance. It seems appropriate to re-examine the case, the historical context surrounding it, and why it still matters today.
The following are the facts of this case. In the early ’60s, the New York Times (NYT) published a full-page advertisement by the supporters of Martin Luther King, Jr, criticizing the Montgomery Alabama police, and specifically L.B. Sullivan, the Montgomery Police commissioner, for the department’s mistreatment of Civil Rights protesters. Sullivan sued the paper for defamation, and the trial court ruled in his favor. The NYT appealed to the Supreme Court in Alabama, which affirmed, and then the NYT appealed to the U.S Supreme Court. The U.S. Supreme Court heard the case and returned a unanimous decision 9-0, that the underlying decisions violated the First Amendment. This 1964 Supreme Court landmark decision is foundational in support of the First Amendment’s right of freedom of the press and ultimately demonstrates that the freedom of speech protections in the First Amendment restrict the ability of public officials to sue for defamation. This decision also created the “actual malice” standard, which required that the publication of false or erroneous information had to be done with actual intent to harm the public figure.
Libel litigation has really kicked up in recent years. While the “actual malice” standard is still firmly in place, a few high-profile libel actions have pressed forward. A few examples are the following: Sarah Palin suing the NYT; the Covington Catholic students, specifically Nicholas Sandmann and his ultimately dismissed lawsuit against the Washington Post (WP); and former Sheriff Joseph Arpaio’s lawsuit against the NYT and editorial writer Michelle Cottle which was also dismissed. Additionally, Trump frequently uses his Twitter feed to proclaim that libel suits “are out of reach” but continues to threaten libel action when unflattering press is published. To be clear, his threats have remained threats; to this date, he has not filed lawsuits regarding libel.
With this history and cultural context in mind, I am very grateful that Professor Edmondson took the time to speak with me regarding the state of libel litigation in the United States.
The NLR: The Sullivan case dates back to the ’60s and came out of the Civil Rights Movement when the NYT was sued by the Montgomery, Alabama police commissioner, L.B. Sullivan. Why is this precedent especially relevant now?
Sullivan is relevant for at least these three reasons.
First, journalism faces tough challenges. Local print journalism is withering. The president of the United States has launched an assault on news media. And manipulators, some of them foreign, are abusing technology with fakery and confusion. As the free press struggles, our Republic is well served by existing protection again libel abuse.
Second, we as a nation go to great lengths to protect free speech, even unpopular and hateful expression. The Supreme Court recently ruled that the government could not deny vulgar trademarks citing the First Amendment (Iancu v. Brunetti, decided June 24, 2019). Citizens who chant “send her back” at a Trump rally are protected. Journalists who cover controversy likewise should be protected from libel abuse.
When the nation’s Founders gathered to amend the Constitution through the Bill of Rights, they positioned freedom of speech and the free press side-by-side, as complementary. As we protect free speech, we also should protect the free press.
Third, the abuse of libel is an instinctive default position of authority facing criticism. When authority is irritated by the message, it can seek ways to injure or chill the messenger. America should guard against abuse of libel. Justice William Brennan wrote in the 1964 landmark Sullivan case that, left unchecked, abuse of libel can “threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials.”
In this era of divided citizenry, profound technological changes, and nervousness about the future, Sullivan is perhaps more relevant because it checks the misuse of libel.
The NLR: Based on your research of libel prior to Sullivan, what can you tell us about the use and abuse of libel before Sullivan?
In the Jim Crow South, libel was weaponized against the press and individuals who challenged the racial status quo. The Sullivan case was the culmination of an onslaught of libel claims designed to brake progress, silence criticism, and bankrupt agents of change as the civil rights movement was gaining momentum.
The intersection of libel, race, and journalism can be tracked to the early years of our nation. In 1830, abolitionist William Lloyd Garrison was indicted in Baltimore for publishing a newspaper report of 75 enslaved people shipped from Baltimore to New Orleans. He was locked up for 49 days in part for criticizing the institution of slavery. Garrison’s lawyer, Charles Mitchell of Baltimore, described libel abuse as an “engine of tyranny.”
My book primarily focuses on civil rights-era libel litigation, mainly, but not exclusively, in the South. Chapter One is set in Los Angeles. The local Klan sued the African American editor-publisher of the California Eagle in 1925 after the newspaper published a Klan strategy memo on how to manipulate black voters in Watts. The judge ruled in favor of the paper, concluding that the Klan document, which had been handed over to police and then to journalists, was privileged. (In court, the Klan said the paper was fake.)
The win-loss record of libel cases was mixed before Sullivan was taken up by the nation’s high court. Defendants settled some cases to avoid expense and exposure. Some judges ruled that truth was a defense against libel claims.
Regardless of the legal outcomes, the pile-on of libel lawsuits against the press and civil rights leaders was draining financially. For example, Reverend Fred Shuttlesworth was a named defendant in the Sullivan case, even though he didn’t know that his name appeared in the full-page ad in NYT that prompted Sullivan’s lawsuit. Alabama courts awarded Commissioner Sullivan $500,000, a record-high judgment at the time. While the case was on appeal, authorities seized Reverend Shuttlesworth’s Plymouth, which brought $400 at auction to help pay the judgment. Land owned by three other ministers who also were defendants was sold at auction for $4,350.
By the time the U.S. Supreme Court heard the Sullivan case, there was plenty of evidence in multiple jurisdictions showing that libel abuse was weighing on the First Amendment.
The NLR: After the Sullivan ruling in 1964, the press went on to break some fairly fantastic stories. I am thinking about Watergate, in the early ’70s, specifically. What were the implications of Sullivan regarding press coverage of civil rights, Vietnam, Watergate, and other contentious news?
Yes. My colleague Christopher B. Daly at Boston University (author of “Covering America”) makes the profound point that Americans need a free and robust press in wartime and peacetime. He cites coverage of the Pentagon Papers, the My Lai Massacre, and the Abu Ghraib torture scandal.
I close my book by pointing out that Sullivan freed the press to ramp up its watchdog reporting on a wide range of issues. The press’ scrutiny must continue as a cornerstone of our democratic tradition.
Balancing police authority/public safety with respect for individual freedoms and free expression was at the core of much of the libel litigation before and after Sullivan. The Sullivan case at its heart was about criticism of police brutality against civil rights protesters in Montgomery, Alabama, which was a cradle of the Confederacy during the Civil War. As a result of Sullivan, today’s public criticism of law enforcement, such as press coverage of “Hands up, don’t shoot,” and “I can’t breathe” are not actionable libel claims.
The NLR: Earlier this year, Justice Clarence Thomas suggested that the Supreme Court should take a look at Sullivan, after 55 years, to modify the standard on actual malice. The rest of the Court did not voice similar sentiments. What point is Justice Thomas making/what is on his mind, and do you think the Court will revisit libel anytime soon?
Justice Thomas often treads his own path in the area of First Amendment law. He is a noted defender of advertising (commercial speech), questioning why it should be more heavily regulated than other types of speech, even political speech. He has questioned laws that regulate political contributions, and strongly supported less government regulation of street and lawn signs. However, he has opposed free speech protections for high school students and prisoners.
I see Sullivan as a civil rights case as well as a libel case. How ironic that Justice Thomas, the only African-American on the Supreme Court, is calling for a retreat on civil rights-era protections in Sullivan. He made this remark in a concurring opinion released early this year when the court turned down an appeal from Kathrine McKee, who accused Bill Cosby of sexual assault. She sued Cosby for libel after his lawyers called her dishonest (McKee v. Cosby). As Justice Thomas says:
New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.” (quoting Gertz v. Welch and Sullivan). We should not continue to reflexively apply this policy-driven approach to the Constitution. 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.
As you noted in your question, Thomas’ colleagues on the Supreme Court have not publicly joined his push to roll back Sullivan. I do not expect that Court will revisit Sullivan immediately. But predicting what the Court will do is virtually impossible. Sometimes, the seeds planted by a single justice, like Thomas’ remarks about Sullivan, yield results later.
Generally, critics say Sullivan stacks the deck against the plaintiff, that actual malice is an impossible standard, and the press should not have license to run amuck.
The NLR: Sullivan set the standard pretty high for public officials seeking to win libel claims, they have to show “actual malice.” Does this, and other existing protections of the press, make it virtually impossible to win a libel claim?
Journalists are not totally protected from libel suits, nor should they be. Truth is the ultimate defense in a libel suit. If reporters get it wrong, certainly there can be ramifications.
If reporters get it wrong and the plaintiff is a public official or public figure, the reporters may lose a libel case if actual malice is proven in court. Actual malice is publishing content that is knowingly wrong, or journalists should have known it was incorrect.
After a 15-day trial, a jury in New York awarded $75,000 in damages to Barry Goldwater, the Republican nominee for president in 1964 (Goldwater v. Ginzburg). A federal appeals court affirmed the outcome in 1969, and the Supreme Court declined to review the case. Ralph Ginzburg, publisher of Fact magazine, ran an article that said Goldwater was paranoid, unfit for office, and troubled by “intense anxiety about his manhood.” This unflattering claim was based on a survey mailed to psychiatrists. Some of the respondents had warned that psychological evaluations must take place in clinical settings, but Ginzburg published anyway. He cited the Sullivan case when Goldwater took him to court, to no avail.
Rolling Stone settled multiple libel claims after retracting its 2014 story of gang rape at a University of Virginia fraternity. The flawed 9,000-word article portrayed an associate dean as “chief villain” of the incident. She won a $3 million verdict in court and then settled. Rolling Stone settled with the fraternity for $1.65 million, and also settled with members of the fraternity.
In June, a jury in Ohio awarded $44.4 million in punitive and compensatory damages to family-owned Gibson’s Bakery to be paid by Oberlin College (Gibson’s Bakery v. Oberlin College). Bakery owners said the college defamed and harmed their business after a shoplifting incident. “Even a college as influential as Oberlin,” noted conservative blogger Cornell Law Professor William Jacobson, “may be held accountable for its actions in a court of law.”
The NLR: What has candidate Donald Trump/President Trump said about libel?
In 2016 in Fort Worth, Texas, then-candidate Trump took aim at libel laws directly: “One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times and Washington Post . . . writes a hit piece, we can sue them and win money instead of having no chance of winning because they are totally protected.”
President Trump lamented in 2018 that “totally false” reports are out of reach of libel law:
Trump has threatened libel action against both the media and individuals. For example, candidate Trump threatened to sue NYT in 2016 after NYT’S publication containing claims by women of his alleged inappropriate touching. In response, a NYT attorney said if Trump thinks “the law of this land forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”
Trump did not sue.
Threatening libel action is part of Trump’s broader effort, aimed at his voter base and the electorate, to de-legitimize the press.
The NLR: Defamation-libel litigation is very active lately. What are today’s courts saying about libel?
Legal outcomes vary because circumstances vary. There is significant activity on libel, in state and federal courts, showcasing the durability of the legal standard set more than a half-century ago in Sullivan.
The Sullivan standard resonates throughout the 11-page opinion dismissing former Sheriff Joseph Arpaio’s lawsuit against NYT and editorial writer Michelle Cottle. “Because plaintiff has failed to plead actual malice, his false light claim must fail as well,” wrote US District Court Judge Amit P. Mehta (District of Columbia) in a decision issued August 9, 2019. Arpaio was longtime sheriff of Maricopa County, Arizona, before running for Congress in 2018. After Arpaio lost in the primary, NYT published an opinion piece by Cottle criticizing the sheriff’s treatment of immigrants (“he was so much more than a run-of-the-mill immigrant basher”). Arpaio, a public figure, claimed the column harmed his reputation and his chances to run for the U.S. Senate in 2020. The judge said Arpaio’s complaint “comes nowhere close to pleading sufficient facts that plausible establish ‘actual malice.’” (Arpaio v Cottle, August 9, 2019). This case is remarkably similar to the multiple libel suits filed by legendary southern lawman Lawrence Rainey, a former Neshoba County, Mississippi sheriff who sued multiple journalists and even Orion Pictures for his depiction in the film, Mississippi Burning, in 1989.
Current libel claims highlight the inflation in the amount of damages sought by plaintiffs. In the early 1960s, Sullivan (as well as then Alabama Governor John Patterson) sued NYT for $500,000. In 1982, General William Westmoreland sued CBS for $120 million regarding a Vietnam documentary (Westmoreland settled during the trial, ending the case without payment, retraction, or apology from CBS).
This year, a high school student from Kentucky sued WP for $250 million, the purchase price of the newspaper when Amazon founder Jeff Bezos bought it in 2013. On July 26, U.S. District Court Judge William O. Bertelsman (Eastern District of Kentucky) dismissed the case (Nicholas Sandmann v. The Washington Post). Publication of opinion is not actionable libel, the judge concluded. This case involved coverage of Sandmann’s encounter with Native American activist Nathan Phillips on the National Mall on January 19, 2019.
“The Court accepts Sandmann’s statement that, when he was standing motionless in the confrontation with Phillips, his intent was to calm the situation and to not impede or block anyone”, the judge said. “However, Phillips did not see it that way. He concluded that he was being ‘blocked’ and not allowed to ‘retreat.’ He passed these conclusions on to The Post. They may have been erroneous, but . . . they are opinion protected by the First Amendment. The Post is not liable for publishing these opinions.”
Days after the Sandmann case was dismissed in federal court, eight of Sandmann’s classmates (“John Does 1 through 8”) from Covington Catholic High School in Park Hills, Kentucky, filed a defamation suit in state court against 12 individuals. Defendants include two members of Congress, comic Kathy Griffin, and a batch of commentators and journalists.
Also, in August, a federal appeals court reinstated Sarah Palin’s defamation suit against NYT. Therefore, a court will consider whether a NYT editorial on gun violence exhibited “actual malice” against Palin, a former vice presidential candidate.
The NLR: You’ve raised some excellent points. How does all of this fit together? What are we to make of this landscape in today’s contentious and media-saturated environment?
Truth-seeking is a primary mission of journalism. News reporting inspires debate. Reporting controversy does not constitute libel. Publication of malicious, reckless, falsehood is actionable libel.
Newsgathering is an ongoing process, as events evolve. Courts appear to understand this dynamic, with the media’s constant deadlines, and do not view updating as a story evolves as actual malice. It’s quite the opposite. We write what we know to be the truth as we know it.
It’s important to note that Justice Brennan’s majority opinion in Sullivan protected even false information, as long as that information was published by accident (without actual malice). Later libel cases built on Sullivan with the U.S. Supreme Court declaring that “pure opinion” is also constitutionally protected speech (Milkovich v. Lorain Journal Company). The First Amendment, then, ensures that free speech isn’t “chilled” and thus clears the way for journalists to write about fast-moving and-or controversial issues without fear of costly libel litigation.
As we ponder the big picture, let’s remember Justice Louis Brandeis’ time-honored advice: “the answer to bad speech is more speech, not ‘enforced silence.’”
The NLR: Many thanks to Dr. Edmondson for her insights and useful examples on this important and timely matter.