One of the Supreme Court’s most significant First Amendment rulings may be in peril. For the past sixty years, the landmark 1964 decision of New York Times Co. v. Sullivan and the cases that followed have secured strong First Amendment protections for the press and others who speak on public affairs. Under these cases, public officials and public figures must show that the speaker acted with “actual malice” or “reckless disregard” of the truth in order to win a libel suit.Footnote ¹ Scholars and advocates have long celebrated Sullivan as one of the most important Supreme Court rulings for the protection of press freedom.

But in 2016, then-presidential candidate Donald Trump announced that he wanted to “open up” libel lawsFootnote ² to make it easier for him to sue his critics in the press.Footnote ³ Since then, attacks on Sullivan have taken on a new – and highly partisan – tenor. In 2017, former Republican vice-presidential candidate Sarah Palin brought a high-profile defamation case against The New York Times in which she called Sullivan “obsolete in the modern speech landscape.”Footnote ⁴ Soon after, two Supreme Court justices, Clarence Thomas and Neil Gorsuch, urged the Court to reconsider Sullivan and its progeny.Footnote ⁵ Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit agreed, penning a sharply worded dissent that called for the Court to overrule Sullivan, declaring that the press is “bias[ed] against the Republican Party” and stating that The New York Times and The Washington Post “are virtually Democratic Party broadsheets.”Footnote ⁶ A number of other litigants have also asked the Court to take a new look at Sullivan’s holdings, arguing that the ruling insufficiently protects the interest in personal reputation and awards the purportedly biased, liberal press with an unwarranted “subsidy” for untruthful publications.Footnote ⁷

Any reconsideration of Sullivan and its legacy, however, must not be done in a historical vacuum. The story of Sullivan is a powerful illustration of the unique functions the press fulfills in American democracy and the importance of Sullivan’s protections of those functions. The history of Sullivan demonstrates how, when provided with sufficient constitutional protections, the press embodies key democracy-enhancing roles, such as reporting on public affairs, transmitting newsworthy information to the public, monitoring the conduct of public officials, and holding officials accountable to the citizenry. Arising out of the Civil Rights Movement, the history of Sullivan also shows us how a free press can serve as a voice for underrepresented groups and shine light on matters of importance that might otherwise go unseen.

Yet, as this chapter demonstrates, this history also lays bare the high stakes of losing the First Amendment protections recognized in Sullivan. Prior to the Court’s ruling in Sullivan, government officials and other public figures routinely weaponized libel laws to suppress their critics, particularly members of the press. Journalists were arrested and assaulted. Major newspapers pulled their reporters out of the sites of ongoing public battles, leaving the public in the dark about significant newsworthy events. Libel law, to use Justice William Brennan’s words in Sullivan, had a silencing, “chilling” effect on press.Footnote ⁸ This chapter uses history to explain how and why Sullivan nearly eliminated those overwhelming threats to the press. If New York Times Co. v. Sullivan and related cases are overruled, libel suits could again become weapons of blatant political suppression.

15.1 Libel and the Press

Libel is a civil cause of action that protects personal reputation against false and defamatory statements. A defamatory statement is one that seriously lowers a person’s reputation; it exposes a person “to hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace [and] deprives one of their confidence and friendly intercourse in society.”Footnote ⁹ It “injures [a person] in his profession or trade, [and] causes him to be shunned or avoided by his neighbors.”Footnote ¹⁰

Before 1964, a person who sued for libel didn’t have to prove that the statement in question was false; rather, falsity was presumed. The plaintiff didn’t have to show actual injury to their reputation, only that the statement had the potential to harm their reputation. Libel was judged under the rule of strict liability, meaning that a publisher was responsible for its statements regardless of the publisher’s intent or state of mind at the time of publishing. The only ways a publisher could defend itself were by proving that the statement fell into one of a few narrow categories of statements that were “privileged,” legally justified or excused, or, more commonly, by proving the truth of the statement “in all its particulars.”Footnote ¹¹ Truth was a complete defense to libel, but as a practical matter, proving the truth of a statement “in all its particulars” was difficult even if the statement was true. Prior to 1964, the Supreme Court had said repeatedly that defamation law did not implicate the First Amendment. Defamatory speech had no redeeming social value, the Court said, and its regulation could be left wholly to the states.Footnote ¹²

Under these rules, publishing criticism – even truthful criticism – of public officials was a dangerous undertaking for a newspaper. Public officials routinely saddled their critics in the press with libel claims (claims that would today be considered meritless), often recovering considerable damage awards. Libel lawsuits against newspapers were a regular feature of American politics prior to the 1960s. Political officials and other powerful figures frequently harassed and intimidated their critics in the press through retaliatory libel suits. At the turn of the century, for example, railroad magnate James Fisk sued The Springfield Republican for $100,000, followed by lawsuits against two other newspapers for the same sum and a third claiming $1 million in damages. In 1916, Henry Ford brought a spurious lawsuit against the Chicago Tribune for calling him an “ignorant idealist” and an “anarchist.”Footnote ¹³ Presidents even sued the press. In 1916, former President Theodore Roosevelt brought claims against a Michigan newspaper that accused him of being a drunk.Footnote ¹⁴ Libel lawsuits sent the muckraking newspaper The New York World, published by Joseph Pulitzer, into bankruptcy in the early twentieth century. Fear of devastating libel suits led editors to routinely hold back critical commentary about public officials. Under the law at the time, a newspaper could only be sure of escaping a libel suit when the facts were entirely confirmable “in every detail.”Footnote ¹⁵

Despite strict libel laws and the risk of being sued, some major press outlets, such as The New York Times, did find ways to publish. The Times used specialized lawyers and conducted extensive fact-checking and vetting procedures, reviewing all copy for possible libel.Footnote ¹⁶ As a result of its aggressive tactics and well-trained lawyers, The Times rarely paid out judgments in libel cases. But few newspapers had the financial and legal muscle of The Times. And libel remained a formidable latent threat, even for The Times.

As I describe in my book Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, libel suits almost destroyed The Times in the 1960s, when officials in the South figured out how to weaponize libel law to attack newspapers that criticized segregation and exposed official violence against civil rights protesters. This “libel attack” on the press, which produced a series of lawsuits, including the Sullivan case, illustrated how libel law could be exploited by vengeful public officials. It demonstrated to the Supreme Court, and the public more generally, how existing libel laws were anathema to the robust public discourse on public affairs that is the “central meaning” of the First Amendment.

15.2 The Attack on the Northern Press

The South’s libel attack on the northern press was a blatant attempt to halt media criticism of segregation and press coverage of the Civil Rights Movement more generally. The libel attack grew out of the southern campaign of “massive resistance,” its defiance of the Supreme Court’s 1954 decision in Brown v. Board of Education.Footnote ¹⁷ Segregationists feared the power of the press, and its power to sway public opinion toward integration and civil rights, with good reason. Media coverage of civil rights protests, and the violent backlash those protests generated, would prove critically important in building national support for civil rights that would lead to the Civil Rights Act of 1964. Images of civil rights activists being attacked by police and pictures of protesters being ejected from segregated lunch counters would illuminate the cruelties of the South’s racial system and the courage of those who defied it.Footnote ¹⁸

The catalyst to the libel suit at issue in Sullivan was the lunch counter sit-in movement that took off in the South in 1960. When sit-in protesters in Montgomery, Alabama, were assaulted by white mobs, Public Affairs Commissioner L. B. Sullivan, who supervised the police, did nothing to stop the attack. Shortly after, a civil rights organization called the Committee to Defend Martin Luther King and the Struggle for Freedom in the South published a full-page fundraising advertisement in The Times, titled Heed Their Rising Voices, which accused officials in Montgomery and other southern cities of inflicting violence on civil rights protesters. The ad was endorsed by sixty-four eminent figures in the arts and politics, whose names appeared on the ad. Also listed at the bottom of the ad were the names of twenty ministers who were leaders of King’s civil rights organization, the Southern Christian Leadership Conference. In reality, the ministers hadn’t endorsed the ad; their names were added at the last minute by the Committee to Defend Martin Luther King.Footnote ¹⁹ This advertisement would form the basis of the Sullivan case.

The ad, it turned out, contained minor errors of fact. For example, it incorrectly reported the names of the songs protesters had sung on the steps of the Capitol in Montgomery. The most serious error was the claim that officials in Montgomery had padlocked the dining hall of the Alabama State College to starve and punish the protesters, which wasn’t true.Footnote ²⁰ The Times hadn’t fact-checked the ad before running it and thus had failed to adhere to its own well-established policy of vetting all copy for accuracy. Although Sullivan wasn’t mentioned by name in the ad, he claimed that he’d been defamed by statements in the ad implicating Montgomery “authorities” and “police” in violence against civil rights protesters.Footnote ²¹

The essence of the charges, however, was true: Sullivan had been complicit in violence, although perhaps not in all the specific acts described in the ad.Footnote ²² But Sullivan’s reputation wasn’t harmed. At the time, being known for committing violence against civil rights protesters would have only enhanced his reputation among whites in Montgomery. Sullivan and three Montgomery commissioners sued The New York Times and four ministers whose names appeared on the ad for $500,000 each.Footnote ²³ Shortly after, the governor of Alabama, John Patterson, also sued The Times, the ministers, and King for $1 million, claiming he’d been defamed by the ad’s references to Alabama “authorities.”Footnote ²⁴

Authorities in Birmingham likewise wasted no time in bringing libel suits against The Times over its news reporting on racial violence in the city – violence that had been abetted by local officials, including Bull Connor, Birmingham’s notorious commissioner of public safety.Footnote ²⁵ These seven additional libel suits added $3.5 million in potential damages to The Times’ burden.Footnote ²⁶ A Times reporter was even brought up on charges of criminal libel for his reporting on Birmingham, which could have led to six months’ imprisonment.Footnote ²⁷ This use of libel law to enact a coordinated, state-sponsored attack on a disfavored newspaper was unprecedented in the history of the press.Footnote ²⁸

The Alabama libel suits presented an existential threat to The Times, which operated on a low profit margin and was barely breaking even in 1960.Footnote ²⁹ The libel suits threatened to bankrupt The New York Times.Footnote ³⁰ In response, The Times’ lawyers made the historic decision of ordering all personnel to stay out of Alabama to avoid further libel trouble.Footnote ³¹ 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 the critical years of the Civil Rights Movement. The libel suits were having a chilling effect on the press.

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.Footnote ³² At the time, it was the largest-ever libel verdict in the country.Footnote ³³ The Chicago Tribune noted that “even the most intrepid publisher must be intimidated into silence” by this use of libel law.Footnote ³⁴ These successful libel suits, moreover, spurred a wave of copycat lawsuits. By 1964, southern officials had brought seventeen libel suits against northern media outlets seeking damage awards of more than $288 million.Footnote ³⁵

Notable examples include a lawsuit brought by arch-segregationist Edwin A. Walker. Walker was a retired Army general who led a segregationist mob that assaulted reporters and federal officers to protest the admission of James Meredith, a Black student, to the University of Mississippi. Walker sued the Associated Press and ten other media outlets for $33 million in damages over accurate accounts that he had encouraged the rioting. The director of the Mississippi Highway Patrol, T. B. Birdsong, then sued The Saturday Evening Post over an article titled What’s Next in Mississippi, which imputed “official misconduct” to patrolmen during the Ole Miss riots, alleging that state troopers failed to help federal marshals rein in the mob and that patrolmen stood by while a white vigilante posse beat up a news photographer. Birdsong sought $276 million in damages – $1 million for himself and $1 million for each of the state’s 275 highway patrolmen. The sheriff of Etowah County, Alabama, sued the publisher of the Ladies’ Home Journal, Curtis Publishing, for $3 million for an article that accused the sheriff and his deputies of brutality in racial demonstrations. Tom King, a candidate for mayor of Birmingham, threatened a libel suit against The Saturday Evening Post for describing Birmingham as the most “backwards” city in America on race.Footnote ³⁶

Many “publications are now under the shadow of potentially expensive [libel] actions,” noted the Columbia Journalism Review in 1963. “The characteristic actions of the 1960s appear to be suits growing out of local or regional retaliation for reporting or comment by a national news organization,” it observed. “Large awards and wide publicity seem to be encouraging more and more of the offended to sue.”Footnote ³⁷ This was putting it rather mildly.

15.3 Appeal to the U.S. Supreme Court

After losing their appeal before the Alabama Supreme Court in 1962, The Times and the ministers appealed separately to the U.S. Supreme Court. The ministers’ appeal focused on segregation in the trial proceedings and the racial animus that had given rise to the libel prosecutions.Footnote ³⁸ The Times, represented by eminent Columbia University Professor Herbert Wechsler, focused on libel law’s threat to freedom of the press and on the freedom of citizens to criticize their government more generally.

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 brilliantly shifted the focus of the appeal from the right to protect reputation to the right of citizens 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. That crime, under which a government may punish its critics, had long been assumed to be unconstitutional.Footnote ³⁹ “The decision of the Supreme Court of Alabama gives a scope and application to the law of libel so restrictive of the right to protest and to criticize official conduct that it abridges the freedom of the press, as that freedom has been defined by the decisions of the Court,” Wechsler’s brief argued.Footnote ⁴⁰ “It transforms the action for defamation from a method of protecting private reputation to a device for insulating government against attack. If the judgment stands, its impact will be grave – not only upon the press but also upon those whose welfare may depend on the ability and willingness of publications to give voice to grievances against the agencies of governmental power.”Footnote ⁴¹

The brief continued, “We submit that such a rule of liability cannot be reconciled with this Court’s rulings on the scope of freedom of the press safeguarded by the Constitution. Those rulings start with the assumption that one of the prime objectives of the First Amendment is to protect the right to criticize ‘all public institutions.’ … We do not see how … criticism of an elected, public official may consistently be punished as a libel on the ground that it diminishes his reputation.”Footnote ⁴² Criticism of public officials, Wechsler argued, was protected absolutely by the First Amendment.Footnote ⁴³

In March 1964, the Court threw out Sullivan’s verdict and placed constitutional limits on libel laws in the form of the “actual malice” rule. A public official could not recover damages for libel unless they could show that the statement was false and made with “actual malice” – knowledge that the statement was false, or “reckless disregard of whether it was false or not.”Footnote ⁴⁴ Brennan created the “actual malice” rule, in part, to address the extreme and unusual facts of the case. He knew that a negligence standard, a standard of carelessness – which is the usual fault standard in personal injury cases and might have been the obvious standard to apply – wouldn’t have protected The Times, since it admitted that it had been careless in publishing the ad without checking the facts. Brennan, the consummate negotiator, also created actual malice as a compromise to please different blocs of justices on the Court, including the three “absolutist” justices, Black, Goldberg, and Douglas, who would have taken Wechsler’s extreme, absolutist position, and those justices who preferred less sweeping, balancing approaches.Footnote ⁴⁵

Brennan saw another reason for adopting actual malice. Inspired by Wechsler’s analysis, Brennan offered the most extensive reading of the meaning of the First Amendment and its relationship to democracy in Supreme Court history to that time. Adopting Wechsler’s views of freedom of expression, Brennan wrote that the ability of citizens to engage in debate of public issues, debate that may include caustic and sharp attacks on government and public officials, was the “central meaning” of the First Amendment.Footnote ⁴⁶ The essence of the First Amendment is the right of citizens to engage in “uninhibited, robust, and wide open” public discourse, which was the essence of self-governance.Footnote ⁴⁷ Libel law’s rules of strict liability and the requirement that the defendant prove the truth had a “chilling effect” on public debate by producing self-censorship, Brennan wrote. Presented with rules that were overly strict, speakers would “steer … wide of the unlawful zone.”Footnote ⁴⁸

Even a negligence standard, Brennan believed, didn’t provide adequate “breathing room” for speech, because “erroneous statement is inevitable in free debate.”Footnote ⁴⁹ The Court adopted the actual malice standard as a way of providing First Amendment protection for speakers who criticized public officials, while at the same time allowing protection for reputation.Footnote ⁵⁰ Brennan recognized that under the actual malice rule, harms caused by some false statements that were not made with reckless disregard for the truth would go unremedied. But this was the price of freedom of expression, he wrote. The urgent situation in Alabama had called on the Court to take a fresh look at an entire area of law and to reexamine the principles and values of the First Amendment.

15.4 Freeing the Press

The Supreme Court saved the nation’s newspaper of record from ruin. The Sullivan decision not only reversed L. B. Sullivan’s judgment but turned back the segregationists’ “libel attack.” It freed the press to report fully and freely on the Civil Rights Movement, coverage that could have been undermined if the next wave of libel suits had gone through the courts without Sullivan’s protections.

After the Court handed down its opinion in Sullivan, media coverage of the Civil Rights Movement was indeed “robust and wide-open.”Footnote ⁵¹ Reporting on protests in Selma, Alabama, the following year helped facilitate the national consensus on civil rights that led to the passage of the Voting Rights Act of 1965. Scholars agree that the success of the Civil Rights Movement can be attributed in large part to direct action protests and media coverage of those protests. Sullivan was one of the most important Supreme Court decisions facilitating the advance of the Civil Rights Movement.Footnote ⁵²

More broadly, Sullivan facilitated a sea change in journalism, permitting the press to fulfill its constitutional function of reporting on public affairs without fear of devastating libel judgments. Prior to the 1960s, the press had relied on the assertions of the government on critical issues such as national security. But with the Vietnam War, journalists began publishing unauthorized versions of the facts. Such reporting, and investigative journalism more generally, would not have been possible without Sullivan. The protections of Sullivan facilitated the rise of investigative reporting as a genre. “The allowance of room for honest mistakes of fact encouraged the press to challenge official truth on two subjects so hidden by government secrecy, Vietnam and Watergate, that no unauthorized story could ever have been ‘absolutely confirmable,’” in the words of journalist Anthony Lewis.Footnote ⁵³ It was Sullivan that permitted the free flow of information “through the press so that the public would be informed about the government and its actions.”Footnote ⁵⁴

If today’s opponents of Sullivan and related cases succeed, it would become substantially riskier for speakers, including the press, to comment on public affairs. Without the protections of Sullivan, the press would be greatly limited in its ability to engage in its “watchdog” function, monitoring the conduct of public officials and holding them accountable to their constituents. A rollback of Sullivan, moreover, could herald a return to the “libel warfare” that existed before 1964. As the Sullivan story suggests, fewer protections for speakers in libel law would undermine the ability of the press and citizens to engage in the “uninhibited, robust, and wide-open” discourse that is central to public deliberation in a democratic society. The Supreme Court in 1964, and the American public more broadly, saw how libel law could be used to persecute critics of the status quo speaking out on behalf of social justice – persecution that could easily occur today in the absence of Sullivan’s protections. Sullivan changed the course of history, and in our contentious times, its protections matter more than ever.