Supreme Court Justice Clarence Thomas was a lonely voice when he urged re-assessment of the landmark free press and civil rights case New York Times v. Sullivan in 2019.
This month, Justice Neil Gorsuch joined Thomas in questioning Sullivan in their dissenting opinions in Berisha v. Guy Lawson et al. Together, their push raises the serious prospect that the Supreme Court’s new conservative majority will at some point consider overturning the famous 1964 case that rewrote libel law.
Justices Thomas and Gorsuch point out that media have changed dramatically since 1964 when a handful of television networks and print syndicates dominated delivery of information and news. Today, the internet and cell phones enable virtually anyone to be a publisher.
“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,” Gorsuch wrote on July 2, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
Social media, Thomas and Gorsuch say, is littered with gossip, misinformation, and personal attacks. In addition, the long-established, strict standard for libel convictions as laid out in the Sullivan decision is out of step with modern media and, in effect, protects people who espouse untrue statements.
This is a legitimate point of view, but let’s look deeper. Overturning Sullivan would be a costly retreat that would undermine press freedoms when local media are fading and America needs unfettered coverage of complex stories like climate change, the wealth gap, and COVID-19.
In its unanimous decision in Sullivan, the Supreme Court favored both robust public debate and criticism of public officials and wanted to avoid the chilling effect of libel abuse.
Sullivan resulted from the use and abuse of libel laws to silence critics of racism and violence during the civil rights movement. The Supreme Court noted the misuse of libel laws (leading up to the Sullivan decision) by public officials who intended to bankrupt and intimidate reporters and the news media for reporting true stories they did not like.
After the Sullivan ruling, our democracy benefited from aggressive press coverage of civil rights, the Vietnam War, the Pentagon Papers and the Watergate scandal.
In short, robust debate on public issues is not libel. Uncovering scandal is not libel. In Sullivan, the Supreme Court defined libel as intentional, reckless disregard for the truth (“actual malice”) when reporting on the actions of public officials. This strict standard was expanded to include public figures by the 1967 ruling Associated Press v. Walker, another civil rights case stemming from a race riots at Ole Miss.
Modern-day critics of Sullivan claim it is nearly impossible for public officials or public figures to win libel cases. Therefore, they are unprotected victims of falsehoods. In fact, the assertion that libel litigation is unwinnable is a canard to stifle press freedoms. Former presidential candidate Barry Goldwater won a libel case after the Sullivan ruling, for example.
Last year, the highest court in North Carolina upheld a libel victory for a ballistics analyst who sued the newspaper in Raleigh (Desmond v. News & Observer Publishing Company).
Justices Thomas and Gorsuch are correct that media has changed since 1964. But freedom of speech then as now does not grant blanket authority to say anything, including on social media. Shaming, bullying, and lying can carry civil and criminal penalties.
No one favors the making of errors in the presentation of information. The Sullivan case was based on a full-page ad in The New York Times that supported student civil-rights protestors in the South and helped to raise legal defense funds for Dr. Martin Luther King Jr., who had become a huge target for racist public officials in Alabama.
The ad contained minor errors — such as the incorrect number of times Dr. King had been arrested and the title of a song sung by student protestors at the state capital. But the gist of the ad was correct — the Montgomery police brutalized civil rights picketers who were exercising their First Amendment right to petition their government for redress of grievances.
The Supreme Court said such errors were not reported with actual malice, and, therefore, not libelous. Justice William Brennan wrote in Sullivan: “. . . debate on public issues should be uninhibited, robust, and wide-open . . . it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Imagine an America where we could not protest police brutality, where taking to the streets with placards could lead to costly litigation from cops of Sullivan’s ilk, who sought to silence protesters by taking them to court with a civil libel claim.
As the country debates serious public issues — including issues of racial inequality — we should remember the genesis of Sullivan and value the way it protects robust debate, a hallmark of democracy.
Aimee Edmondson, Ph.D., is professor and director of graduate studies at the E.W. Scripps School of Journalism, Ohio University. She is author of In Sullivan’s Shadow: The Use and Abuse of Libel Law During the Long Civil Rights Struggle.