Grayson Kelly
Prof. Susan Gavigan
JOUR 511 21033R
8/12/2021
Journalists and Defamation: Protected Prerogative or Punishment via Paying the Piper?
As journalists, it’s sometimes part of the job to report on things that could be unflattering or damaging to people or figures in the public eye. Luckily, we’re protected by the First Amendment and our free speech rights. When are our first amendment rights not covered by the law, and in what situations can one expect to find themselves in hot water? Luckily, there are hundreds of cases that have set legal precedents. According to Cornell Law School, defamation is a statement that injures a third party’s reputation. The tort—basically, the infringement in the case—includes two types of statements: libel and slander. (Cornell) Libel typically adheres to written statements and slander typically applies to spoken statements. In plain language, defamation is the action of damaging the good reputation of someone. Historically, defamation was treated as a “strict liability” until the landmark freedom of the press case NY Times V. Sullivan back in the 1960’s.
The year was 1960; the Civil Rights movement was gaining traction across the United States, and bringing with it a complete cultural revolution. Civil rights leaders decided to run an advertisement in the New York Times to solicit funds for civil rights leaders like MLK Jr. The ad, which contained “several minor factual inaccuracies,” (Oyez) was disputed by the city Public Safety Commissioner L.B. Sullivan, who submitted a written request to the Times to “publicly retract the information as required for a public figure to seek punitive damages in a libel action under Alabama law.”
The full-page advertisement, which ran in the Times on March 29, 1960, was entitled “Heed Their Rising Voices”. The advertisement began by stating that “as the whole world knows by know, thousands of Southern Negro students are engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the United States Constitution and the Bill of Rights.” The advertisement went on to say that “in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom…”
The advertisement concluded with an appeal for donations for three purposes: “support of the student movement, ‘the struggle for the right-to-vote,’ and the legal defense of Dr. Martin Luther King Jr.” The plaintiff specifically cited portions of the third and sixth paragraphs in the advertisements. These were the following paragraphs in the lawsuit:
“In Montgomery, Ala., after students sang ‘My Country, 'Tis of Thee’ on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear‐gas ringed the Alabama State College campus. When the entire student body protested to state authorities by refusing to re‐register, their dining hall was padlocked in an attempt to starve them into submission.” It should be noted here, that the last sentence in this paragraph was proven to be a false statement. (BillOfRightsInstitute.org)
“Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home, almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for ‘speeding,’ ‘loitering’ and similar offenses. And now they have charged him with ‘perjury’ —a felony under which they would imprison him for 10 years. … ”
What’s important to note here is that neither of the statements above mention Sullivan by name. However, Sullivan filed his lawsuit on the contention that the word “police” in the third paragraph “referred to him as the Montgomery commissioner who supervised the Police Department, so that he was being accused of ‘ringing’ the campus with police.” Sullivan also contended that the language in the advertisement could be read as “imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission,” and that “since arrests are ordinarily made by the police, the statement ‘they have arrested [Dr King] seven times’ would be read as” referring to Sullivan in his capacity as commissioner.
There are a few important things about this case and the content of the allegations against the Times as well as against the police. According to the Times, “although the police were deployed near the campus in large numbers on three occasions, they did not at any time ‘ring’ the campus, and they were not called to the campus in connection with the demonstration,” they noted.
To sustain his claim of libel against the Times, the First Amendment required Sullivan (the plaintiff) to show that the defendant (New York Times) knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate. Sullivan was allowed—on the premise that the charges in the sixth paragraph could be read as referring to him—to prove that he had not participated in the events described. Occasions described in the advertisement, such as the bombing of Dr. King’s home, had “in fact been bombed twice when his wife and child were there” but “both of these occasions antedated respondent’s tenure as commissioner, and the police were not only implicated in the bombings, but had made every effort to apprehend those who were.” (New York Times) The trial judge submitted the case to the jury under instructions that the statements in the ad were “libelous per se” and were not privileged—meaning, they weren’t made in a context that is generally deserving of protection (for policy reasons)—and that “the law… implies legal injury from the bare fact of publication itself,” “falsity and malice are presumed,” general damages need not be alleged or proved but are presumed,” and “punitive damages may be awarded by the jury even though the amount of actual damages is neither found nor shown.”
Furthermore, under Alabama law, an award of punitive damages requires proof of actual malice. The judge in this case charged that “mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify and award of exemplary or punitive damages.” However, a jury in Alabama state court awarded him $500000 in damages, the full amount claimed. The Supreme Court of Alabama affirmed (273 Ala.) (NYTimes) that “where the words published tend to insure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tend to bring the individual into public contempt, they are libelous per se; that the matter complained of is, under the above doctrine, libelous per se, if it was published of and concerning the plaintiff” and that it was “actionable without proof of pecuniary injury..such injury being implied.”
The Times then appealed the decision, and brought the case to the United States Supreme Court. The paper contended that it had no intentional malice of hurting Sullivan, and that they had no reason to believe that the advertisement included false statements—this being the reason why the paper didn’t check its credibility or accuracy. The Times argued that if a newspaper had to check the accuracy of every criticism of every public official, a free press would be severely limited.
In a unanimous decision, the US Supreme Court ruled in favor of the New York Times, stating that “in order to prove libel, a ‘public official’ must show that the newspaper had acted with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard’ for truth. The reason why this case was such a landmark was because, in their support of the New York Times, the Supreme Court also asserted that America’s “profound national commitment to the principle that debate on public issues should be uninhabited, robust, and wide-open.”
The New York Times Co. v. Sullivan case is such an attractive one to study as journalists because it is essentially the precedent of all precedents for media law and defamation in the United States. The reversal of the libel damages lawsuit against the Times established the important legal principle that the First Amendment guarantees the press’ freedom of speech; it also protects the press’ usage of libelous words about a public official in order to foster what the courts saw as vigorous debates about government and public affairs. The unanimous decision protected the right to vehemently criticize even mistakes that public figures make; this, they said, is the price society must pay for freedom.
Not only did this case constitutionalize libel law, but the case “arguably saved the civil rights movement,” according to Stephen Wermiel for The First Amendment Encyclopaedia. Before the landmark decision, according to Elena Kagan’s 1991 journal “A Libel Story: Sullivan Then and Now”, there were nearly $300 million in libel actions from southern states against news organizations, “as a part of a focused effort by southern officials to use defamation lawsuits as a means of preventing critical coverage of civil rights issues in-and-out of state.” The decision as well as the adoption of the malice test “made it extremely difficult for a public figure to win a defamation lawsuit in the United States.”
Interestingly enough, while the New York Times Co. v. Sullivan case was almost 60 years ago, the landmark case was very recently brought into question by two current Supreme Court Justices, Neil M. Gorsuch and Clarence Thomas. Just last month, on July 2, the Justices called for the Supreme Court to reconsider the longstanding standard for public officials set in the case. Their comments were made in their dissent “from the court’s denial of review in Berisha v. Lawson, No. 20-1063, a libel case brought by Shkelzen Berisha, the son of Albania’s former prime minister,” who sued the author and publisher of “Arms and the Dudes: How Three Stoners From Miami Beach Became the Most Unlikely Gunrunners in History,” a 2015 book that examined weapons procurement and was the basis of the movie “War Dogs.” (Liptak)
According to the Times, the Justices said that “the modern news media landscape played a role in their thinking about the actual malice doctrine in a landmark 1964 case.” Justice Gorsuch in particular wrote that he believed “much had changed since 1964, suggesting that the actual malice doctrine might have made more sense when there were fewer and more reliable sources of news, dominated by outlets ‘employing legions of investigative reporters, editors, and fact checkers.’” (Liptak) Gorsuch took particular issue with the current state of the media, writing that tanking cable news network ratings and the rise of 24-hour media online signal a change in the culture. ““What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” he wrote, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
Thomas, on the other hand, made comments similar to his past ones on both the Sullivan case and libel law in general. In 2019, for example, Thomas penned a statement that said the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it. “We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Justice Thomas wrote of the Sullivan decision. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.” Also in my opinion--Thomas here is practicing in something I consider to be judicial activism. I don’t think he means what he is writing--as the Sullivan decision was absolutely constitutional back then and today. Reversal of the Sullivan rule would enable political leaders to undermine the media's confidence that an inadvertent published untruth will not be used to bankrupt a news outlet.
As a young journalist, writer, budding provocateur, and comedy fanatic, the first amendment means a great deal to me. It’s my opinion that our right to free speech--no matter what--should trump everything and anything else. I would personally even go so far as to say that my views can sometimes be described as civil libertarianism. Upholding our personal rights to freedom is tantamount to a healthy culture.
Works Cited
Elena Kagan, "A Libel Story: Sullivan Then and Now (reviewing Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (1991))," 18 Law and Social Inquiry 197 (1993).Cornell Law School. (n.d.). Defamation. Legal Information Institute. https://www.law.cornell.edu/wex/defamation.
Liptak, A. (2021, July 2). Two justices Say Supreme court should Reconsider Landmark LIBEL DECISION. The New York Times. https://www.nytimes.com/2021/07/02/us/supreme-court-libel.html.
New York Times Company v. Sullivan. (n.d.). Oyez. Retrieved August 13, 2021, from https://www.oyez.org/cases/1963/39
The New York Times. (1964, March 10). Text of the Supreme court's opinion in libel case against the New York Times. The New York Times. https://www.nytimes.com/1964/03/10/archives/text-of-the-supreme-courts-opinion-in-libel-case-against-the-new.html.