Media Matters: Libel Law 101
More than 60 years ago, the Supreme Court decided a case that has guided libel law ever since. While the case has endured through the decades, some have pushed to reconsider it, including a member of the current court.
Why should we still care about a full page ad placed in the New York Times on March 29, 1960, by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South?
That ad criticized police tactics used in southern cities including Montgomery, Alabama to break up Civil Rights demonstrations, condemning “southern violators of the Constitution” bent on destroying King’s movement. Dozens of prominent Civil Rights supporters signed the petition, including Harry Belafonte, Marlon Brando, Nat King Cole, Sammy Davis Jr., Lorraine Hansbury, Langston Hughes, John Lewis, Sidney Poitier, Jackie Robinson and Eleanor Roosevelt.
L.B. Sullivan, Montgomery’s city commissioner, was not named in the ad, but he sued the Times for libel, claiming the ad defamed him indirectly. Although Alabama courts awarded Sullivan $500,000, the newspaper’s lawyers appealed to the U.S. Supreme Court, which unanimously reversed the ruling, holding that Alabama libel law violated the Times’ First Amendment rights.
Six decades later, New York Times v. Sullivan (1964) remains the precedent protecting news outlets across the political spectrum from intimidating or frivilous lawsuits. A drawn out libel suit was — and still is — a key weapon of those in power to discourage outlets from investigating potentially criminal activity.
Although the First Amendment says “Congress shall make no law” abridging the freedom of speech and the press, some things aren’t protected, including obscenity, plagiarism, copyright infringement and libel — false statements that hold people to public ridicule, contempt or hatred. Libel can include both false accusations of dishonesty and incompetency like medical malpractice and allegations of criminal behavior like sexual harassment.
In libel cases, judges have to determine whether a person is a private citizen or a public official or figure, including celebrities or people involved (sometimes unintentionally) in public controversies. Private citizens have to show that statements about them were false; that the subject of the story suffered "presumed" or actual damages like loss of a job or public humiliation; and that the publisher was negligent in failing to determine the truthfulness of a statement.
Public figures, though, are held to a higher standard. They have to prove “actual malice.” In practice, this means that reporters can make a mistake as long as it wasn’t done “with reckless disregard for the truth.” Actual malice means that the news outlet or publisher had reason to know statements were false or that they did grossly insufficient reporting.
But there is a movement afoot to undermine Sullivan.
Before writing this column, I spoke with David Enrich, the New York Times business investigations editor, who recently published “Murder the Truth: Fear, the First Amendment, and A Secret Campaign to Protect the Powerful.” Enrich is tracking cases that may lead the Supreme Court to reconsider Sullivan.
He points to a number of lawyers and judges who have argued that the Sullivan “actual malice” hurdle for the rich and powerful is too harsh. President Trump, a champion of this movement, said this during his 2016 campaign: “I’ve never said this before — but one of the things I’m going to do, if I win … is I’m going to open up our libel laws, so when [the media] write purposely negative and horrible and false articles, we can sue them and win lots of money.”
According to Enrich, among the movement’s major influencers is David Logan, former dean of the Roger Williams University School of Law in Rhode Island. Logan’s 2020 article in The Ohio State Law Journal, titled “Rescuing Our Democracy by Rethinking New York Times v. Sullivan,” has been circulated to some Supreme Court Justices.
Logan writes that with newspapers in decline and the significant loss of reporters, fact-checking and editorial oversight are diminished, suggesting that more untruthful reporting is likely to occur. He argues that slipshod reporting could even be enabled by editors since it may not rise to the level of actual malice. Enrich points out that Logan provides no examples to support this.
Logan also asserts that the sensationalism, disinformation and name-calling on social media calls for weakening Sullivan. But Enrich also undercuts this claim, pointing out that social media publishers like Facebook are insulated from liability for what users post online by the Communication Decency Act.
Supreme Court Justice Clarence Thomas — no fan of national news media — is also among those looking to declaw Sullivan. But during his controversial confirmation hearings in 1991 he noted that “freedom of the press is essential to a free society.” Asked whether Sullivan needed to change, he said he had “no agenda to change that standard.”
Enrich reminds us of a golden age in investigative reporting: “Journalists – along with activists like Ralph Nader – dug into tobacco, auto and chemical industries, whose top executives knew they were peddling deadly products. And they revealed the crimes, lies and half-truths of actual and aspiring presidents, senators, governors, Cabinet secretaries and even Supreme Court Justices.” Enrich recalls that in the 1970s, Richard Nixon blamed the Sullivan decision for helping the Washington Post topple his administration.
About the significance of Times v. Sullivan ruling in 1964, Enrich writes, “the ‘actual malice’ standard would distinguish the United States, with its tradition of celebrating free speech and expression, from many other democracies, and it would become an indispensable safeguard for American journalists and everyday citizens who hoped to hold their leaders and other powerful actors to account.”
This week, the Supreme Court declined to hear a case from a wealthy Trump donor who asked the court to overturn Sullivan. While no justices issued comments, both Justice Thomas and Justice Neil Gorsuch, since 2020, have called for a reevaluation of the case. Whether they’ll have the votes for the Court to take up a relevant case that re-examines Sullivan is an open question.
Richard Campbell is a professor emeritus and founding chair of the Department of Media Journalism & Film at Miami University. He is the board secretary for the Oxford Free Press.
