Scarinci: Is New York Times v Sullivan in Danger?

Even in this era of “entertainment news,” freedom of speech is ensconced in the very definition of what it means to be American.  Yet, with two justices already expressing their view that, after over 50 years, New York Times v. Sullivan should be overturned, there is reason for concern.

Historically, the United States Supreme Court has deferred to precedent and overturned only 233 cases in its 232-year history.  However, the current Supreme Court seems less concerned about maintaining social stability then they are about re-interpreting the Constitution to conform to their own individual world view.    

The First Amendment case, which established a higher bar for defamation suits by public officials, recognizes our country’s “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.” However, in today’s hyper-partisan political environment, where such protections are arguably needed more than ever, Sullivan is facing some of its sharpest criticism yet, including attacks from the Supreme Court itself. 

Landmark First Amendment Decision 

The dispute in Sullivan stemmed from a full-page advertisement published in The New York Times (NYT). The ad, entitled “Heed Their Rising Voices,” sharply criticized the police response to a wave of civil rights protests in Montgomery, Alabama. It also appealed for funds to support the student civil rights movement and the legal defense of Dr. Martin Luther King, Jr. against a perjury indictment pending in Montgomery.

Even though he was not mentioned by name in the ad, L.B. Sullivan, the Montgomery Public Safety Commissioner, requested that the NYT issue a public retraction. After the newspaper refused, he filed suit against the NYT and four African American ministers who had signed their names at the end of the publication. Sullivan maintained that he had been libeled by the advertisement, which contained a few minor factual inaccuracies. The suit further alleged that, under Alabama’s per se libel law, the defendants had no defense to the libel charge unless they could persuade the jury that the statements were true in their entirety.

The U.S. Supreme Court unanimously sided with the NYT, holding that Alabama’s libel law violated the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments. “We hold today that the Constitution delimits a state’s power to award damages for libel in actions brought by public officials against critics of their official conduct,” wrote Justice William Brennan Jr.

The decision established a new test for libel cases, often referred to as the “actual malice” standard. It requires public officials prove that the alleged libelous statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. In support of the heightened standard, the Court cited the importance of “the right of freely examining public characters and measures.” 

Impact of Sullivan Decision

Because Sullivan significantly limits the ability of public officials to sue for defamation, they are among its most vocal critics. In recent years, President Donald Trump and Gov. Ron DeSantis of Florida have both called for the decision to be reversed, citing harm to their reputations caused by media bias against them. 

Critics of the landmark case often fail to recognize that knowing and intentional falsehoods are not protected under Sullivan. But they are correct when they argue that some untrue statements may escape legal scrutiny under the actual malice standard. According to the Supreme Court, protection of the press is still warranted. As Justice Brennan explained, given that “erroneous statement is inevitable in free debate,” mistakes “must be protected if the freedoms of expression are to have the breathing space that they need to survive.” 

Nonetheless, politicians critical of Sullivan do have some powerful allies. Two of the Court’s current conservative justices, Justice Clarence Thomas and Justice Neil Gorsuch, have also called for Sullivan to be overruled, with Justice Gorsuch questioning “how well Sullivan… served its intended goals in today’s changed world.” 

While it is true that technology, particularly social media, has changed how quickly and how broadly news can be disseminated, a partisan press has existed since the earliest days of our country. Additionally, the basic First Amendment principles enshrined in Sullivan remain unchanged. As noted by former Chief Justice William Rehnquist, the Court’s decision in Sullivan made “American public officials more accountable, the American media more watchful, and the American people better informed.”