In the early years of our country, public men who felt maligned could end up killing over it. The duel that resulted in Alexander Hamilton’s death was prompted by a letter, in the Albany Register, by someone claiming that Hamilton had called Aaron Burr “a dangerous man, and one who ought not to be trusted with the reins of the government,” and had expressed a “still more despicable opinion” (without further specifics). Instead of redressing an insult to honor through violence, Burr could have tried to sue under the law of defamation—the legal system’s attempt to channel retaliation into a court process. He was certainly familiar with it; as a lawyer, he had used it to go after critics. One probable reason he didn’t was that it was undignified for a gentleman to take a social equal to court.
In the decades that followed, putative defamers became more likely to pay for their words with money than with their lives. Only in the past sixty years, though, did the legal balance shift strongly in their favor: wrecking reputations has, under civil law, become much less risky. The media, for the most part, have been free to publish about public figures without great fear of legal repercussions. That protection derives from New York Times v. Sullivan, a 1964 Supreme Court decision that made it harder to win defamation suits against the media. The Court had argued that the press in a democracy must be able to criticize government officials, and the landmark decision is widely seen as indispensable to a free press.
Accordingly, many people have become alarmed at the prospect that a conservative Supreme Court might reconsider it, something that two Justices have proposed. And yet, as became clear during the legal clash between Dominion Voting Systems and Fox News, liberals themselves have conflicting intuitions on the topic. Certainly, the free-for-all of misinformation that culminated in the January 6th attack has complicated easy old-school rhetoric about unfettered speech and democracy. So it’s worth asking how the sixty-year-old precedent holds up and in what form it should survive in the twenty-first century.
The Warren Court’s expansion of civil rights and civil liberties sometimes occurred in cases where the Court’s concern with race discrimination in America was subtext. But, in the case behind New York Times v. Sullivan, race discrimination was overtly at issue. A new book, “Actual Malice” (California), by Samantha Barbas, a law professor and historian, unfurls the story of the case and reminds readers that the triumph of press freedom was an outgrowth of the civil-rights struggle. Versions of the story have been told before, perhaps most famously in Anthony Lewis’s “Make No Law,” more than three decades ago. Yet Barbas deftly employs archival sources—notably from the Times, from the Martin Luther King, Jr., papers, and from the Southern Christian Leadership Conference—to shed new light. Her book illuminates the effect of libel suits on journalists’ ability to cover the movement, the legal strategies used against those suits, and the impact of the case on the civil-rights movement itself. A heroic narrative in which the litigation helped vanquish segregationists serves to underscore what Barbas calls the “centrality of freedom of speech to democracy.”
Discover notable new fiction and nonfiction.
When the case arose, it was relatively easy to sue the media for defamation. In most states, libel law was weighted heavily against newspapers, even in circumstances where the falsehood was an honest mistake or merely an exaggerated opinion. Henry Ford won a libel claim against the Chicago Tribune after it called him an “ignorant idealist” and an “anarchist”; Theodore Roosevelt prevailed against a newspaper from Ishpeming, Michigan, that maintained, “He gets drunk . . . not infrequently.” Through the mid-twentieth century, newspapers responded to the peril of libel suits by becoming more attentive to factual accuracy in their reporting. The volume of libel suits declined and settled down.
Then the Times began covering the civil-rights movement. After Brown v. Board of Education, newspaper articles reporting on the Southern campaign of resistance to desegregation—including the mobbing of Black students attempting to integrate schools, the acquittal of Emmett Till’s killers, and brutal acts of official violence against civil-rights activists—provoked retaliation by segregationists, who felt vilified by the Northern press. The targeting of journalists covering the struggle started with reporters’ having eggs thrown at them and evolved into a full-blown, coördinated legal strategy—the “libel attack”—in which lawsuits in state courts were used to drive Northern media out of the South. It was in this context that Montgomery officials filed a libel suit against the Times in Alabama courts.
The statements at issue appeared not in a news article but in a full-page ad taken out in 1960 by a committee raising money for King’s legal defense. (State officials in Alabama, aiming to take him down, had accused him of falsifying tax returns and, in a prosecutorial novelty, charged him with perjury.) The ad, headed “Heed Their Rising Voices,” described how “thousands of Southern Negro students are engaged in widespread non-violent demonstrations,” and went on:
Reporting that King had been arrested seven times, it urged readers to support “with your dollars” his defense as well as the defense of “the embattled students—and the struggle for the right-to-vote.”
Many details in the ad were factually inaccurate. The Montgomery police hadn’t “ringed” the campus; the song was not “My Country, ’Tis of Thee” but “The Star-Spangled Banner”; student leaders were expelled not for singing it in a demonstration but for a lunch-counter sit-in; the “entire” student body did not refuse to re-register; the dining hall was not padlocked; there was no attempt to starve the students into submission; and King was arrested four times, not seven. Even the list of signatories was off: it included twenty Black ministers associated with the S.C.L.C., King’s organization, without their knowledge or consent.
The errors exposed the Times to a libel suit that seemed an easy win for Montgomery officials, including L. B. Sullivan, a commissioner whose remit included the police. In coördination with other libel suits in Alabama, the goal was to destroy the S.C.L.C. (several unsuspecting S.C.L.C. ministers named in the ad were also accused of defamation), to topple the Times, and to discourage newspapers from reporting sympathetically on civil rights in the South. During much of the ensuing litigation, which stretched from 1960 until the Supreme Court decision in 1964, the threat of libel suits was so substantial that the Times ordered its reporters to stay out of Alabama.
The Montgomery circuit-court judge who presided over the trial, with a jury of twelve white men, was a leader of his state’s efforts against desegregation. He enforced a segregated courtroom, in which some prospective jurors came dressed in Confederate uniforms. He used “Mr.” to address white lawyers but not Black lawyers, and declared that the trial would be ruled by “white man’s justice . . . brought over to this country by the Anglo-Saxon Race.” Sullivan was awarded five hundred thousand dollars in damages (equivalent to some five million dollars today) and prevailed when the case was appealed to Alabama’s highest court, which was also a stronghold of white supremacy.
Around this time, Justice Hugo Black, who was from Alabama and had once joined the Ku Klux Klan but was now among the Court’s most liberal Justices, gave a surprising speech about libel and the First Amendment. Employing a formalist, literalist, even absolutist approach to the Constitution, he read the First Amendment as reflecting the Framers’ intent to rid the United States of defamation law; false and reputation-damaging statements were constitutionally protected.
Likely taking a cue from Black’s remarks, the lawyer who represented the Times before the Supreme Court, the Columbia Law School professor Herbert Wechsler, brilliantly reframed the case’s significance. To the extent that it was about an error-riddled ad that allegedly damaged people’s reputations—essentially, a personal-injury case—it was bound to be a loser. Instead, Wechsler transformed the matter into a lofty reflection on democracy and press freedom; a democracy required a well-informed electorate and could not function, he argued, if citizens feared being penalized for criticizing government officials.
The Supreme Court unanimously found in favor of the Times. Its opinion, by Justice William J. Brennan, said that the First Amendment prohibited holding a speaker liable for a false statement about a public official, unless he made it with “actual malice”—which was defined as knowledge of, or reckless disregard of, the statement’s falsity. For the very first time, the Court recognized that First Amendment rights could curb traditional rules that regulated defamatory speech.
The opinion asserted “a 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.” Truth was not a requirement for speech protected by the First Amendment, the Court said. “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions” would lead to “self-censorship.”
In the following decades, the Court expanded the Sullivan rule. In 1967, Curtis Publishing Company v. Butts applied “actual malice” to public figures beyond officials. In 1968, St. Amant v. Thompson held that a failure to try to verify inflammatory charges does not necessarily constitute reckless disregard. The Court did not dispute the objection that “such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant’s testimony that he published the statement in good faith and unaware of its probable falsity.” Still, it concluded that “neither the defense of truth nor the standard of ordinary care” would “adequately implement First Amendment policies.”
Meanwhile, the definition of a “public figure” grew expansive. Gertz v. Robert Welch, Inc., in 1974, held that a private person could become a public figure if he “voluntarily injects himself” into a public controversy or even if he is involuntarily “drawn into” one. In time, it became easier to assert that a plaintiff counted as a public figure, giving the Sullivan standard a wide reach. Its approach toward speech deemed of public concern was, in turn, so influential that it arguably spread beyond defamation to impose restrictions on civil suits claiming intentional infliction of emotional distress; in 2011 a military father lost a case against anti-gay protesters picketing outside his son’s funeral.
The press tends to take for granted that New York Times v. Sullivan is necessary for democracy. But is it? On the one hand, Sullivan still allows deep-pocketed litigants to target truthtellers who lack assets, tying them up in procedural hurdles that effectively chill speech. On the other hand, the Sullivan doctrine (encompassing the 1964 case and succeeding ones that expanded its purview) has made it largely permissible to disseminate falsehoods about an enormous range of people and entities, as long as the speaker, writer, or publisher didn’t know that the statement was false or didn’t harbor serious doubts about its accuracy, so as to display “reckless disregard” for the truth. What’s more, the “reckless disregard” test involves inquiry into a defendant’s state of mind: it’s seldom easy to establish that a falsehood wasn’t spread in the sincere belief that it was true. The case effectively permits the publication of negligently false statements about public figures, very broadly defined, in the name of protecting the debate and criticism needed to make a democracy work.
Recently, the doctrine’s critics on the Court have been making themselves heard. Three times in the past four years, as the Court refused to hear cases that could have prompted a reconsideration of New York Times v. Sullivan, Justice Clarence Thomas responded by flatly condemning the ruling. The first was in a case that, after #MeToo, has become a standard type of defamation suit: a woman accused Bill Cosby of rape, his lawyer called her dishonest, and she sued Cosby for defamation. Thomas disparaged Sullivan and its progeny as “policy-driven decisions masquerading as constitutional law,” because making a plaintiff prove that a defendant had a reckless disregard for the truth is inconsistent with the founding-era common law of libel, which lacked a “heightened liability standard” and often presumed the defendant’s malice. In another case, Thomas asserted that the common law traditionally treated lies about public figures as more troubling than lies about ordinary people, and so—inverting the logic of Sullivan—public figures may deserve more protection, not less. (He cited the “Pizzagate” conspiracy theory as an example of a hurtful falsehood.)
It doesn’t seem a stretch to wonder whether Thomas’s stormy confirmation, featuring sexual-harassment accusations that he denied and that forever harmed his reputation, has led him to approach defamation law with sympathy for those who feel defamed. As a Presidential candidate, Donald Trump, aggrieved by mainstream media’s reporting on his misdeeds, promised to “open up” the libel laws, which he called “impotent” and “unfair.” Trump’s crusade continued during his Presidency; he described libel laws as “a sham and a disgrace.” He also appointed at least one Justice who is skeptical of Sullivan: Neil Gorsuch.
Where Thomas’s objections are originalist and historical in nature, Gorsuch’s tend toward the empirical. He observes that “our Nation’s media landscape has shifted in ways few could have foreseen,” with misinformation thriving amid the shuttering of newspapers, the decline of network news, the rise of online media, and the fading of robust fact-checking norms. Because “everyone carries a soapbox in their hands,” he thinks, dissenting views wouldn’t be squelched by lessening constitutional protection for false statements. The definition of “public figure,” meanwhile, has become so expansive that, he writes, private citizens “can become ‘public figures’ on social media overnight.” For all these reasons, he has suggested, the 1964 ruling is ill matched to the modern media environment. Gorsuch has called the case an “ironclad subsidy for the publications of falsehoods by means and on a scale previously unimaginable.”
It’s not just conservative Justices who have raised such doubts. When Elena Kagan was a law professor in the nineteen-nineties, she wrote a review of Lewis’s “Make No Law” in which she wondered whether the Sullivan doctrine had been extended too far. She didn’t advocate overturning it, but she noted the “obvious dark side”—that the decision “allows grievous reputational injury to occur without monetary compensation or any other effective remedy”—and suggested that the rule of the case should be more closely limited to its facts. “Is uninhibited defamatory comment an unambiguous social good?” she asked. “That is, does it truly enhance public discourse?” Diminishing the threat of libel suits “promotes not only true but also false statements of fact—statements that may themselves distort public debate.” In this respect, she ventured, “the legal standard adopted in Sullivan may cut against the very values underlying the decision.”
Three decades after Kagan expressed these concerns, people on the left and the right can reasonably ask whether New York Times v. Sullivan has eased the proliferation of misinformation that blights civic discourse and impairs the functioning of our democracy. It’s hard to imagine that it is utterly unrelated to the spreading of big lies, including stories that erode trust in elections and lead to events like January 6th. Conservatives may criticize Sullivan because of their distrust of mainstream media and their belief in a Big Tech bias against right-wing speech. Yet even liberals who champion the case fret over the publication of pernicious and unchecked untruths about our democracy. A few actually criticize the Sullivan doctrine, though often in whispers, fearing blowback from their political kin. After Marc Elias, a Democratic election lawyer, suggested on Twitter last year that the Court should revisit the case, an outcry ensued and he deleted the tweet.
The arrival of the #MeToo movement illustrates a cross-partisan realignment around defamation; it’s notable that Justice Thomas’s recent fusillade on the issue began with a sexual-assault complainant who found herself accused of lying and sought legal redress. When the statute of limitations for sexual misconduct has expired, an alleged perpetrator who impugns an accuser’s honesty can renew a victim’s opportunity to sue, albeit for defamation rather than for the underlying misconduct. After New York temporarily suspended the statute of limitations on old sexual-assault cases, E. Jean Carroll was able to sue Donald Trump for battery as well as for defamation; he had called her allegations a “hoax.” (The jury recently found Trump liable for five million dollars in damages for sexually abusing and defaming Carroll.) Of course, those on the other side of #MeToo disputes are wielding defamation law, as well, with accused individuals seeking to establish their innocence by suing accusers for defaming them. Despite the occasional high-profile success, though, the current legal milieu tells potential plaintiffs that clearing their name through a defamation suit will be a rocky and uphill path.
Defamation liability is an especially vexed issue when it comes to spreading falsehoods that undermine the functioning of our democracy—perhaps by impugning the legitimacy of democratic elections. And so the contemporary test of our faith in New York Times v. Sullivan has come in the form of lawsuits involving lies about the 2020 Presidential election. Dominion and the voting-technology company Smartmatic each sued Fox News for defamation for airing claims that the companies’ machines were used in the perpetration of fraud that stole the election from its rightful winner. Fox loftily claimed that “the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan.” Dominion, for its part, argued that “if this case does not rise to the level of defamation by a broadcaster, then nothing does.”
And Dominion got extraordinarily lucky in its discovery process: it unearthed clear evidence that Fox hosts and executives thought that the claims were false yet continued to air them in order to maintain viewer ratings. This may well have been that rare case in which a plaintiff suing a media company could have cleared the high hurdle of proving “actual malice”; on the verge of a trial, Fox settled the Dominion case for nearly eight hundred million dollars. Yet what’s striking about the Fox e-mails and texts is that they convey a great deal of anxiety about losing viewership—and seemingly no anxiety about legal exposure.
Dominion and Smartmatic have also sued the conservative media outlets OAN and Newsmax. These cases may fail, however, if they don’t have the kind of smoking-gun evidence that emerged in the case against Fox. Newsmax, even today, says that it “stands by its coverage,” and it has called the ongoing Dominion suit an effort to “undermine a free press.” Meanwhile, liberals who cheered on the Dominion suit were reluctant to acknowledge that Sullivan was its biggest obstacle—that they were arguably aligned with those, like Trump, who want to weaken Sullivan. (An MSNBC headline: “Dominion’s defamation suit is moving forward. That’s good for democracy.”) It’s telling that a Florida bill designed to challenge the Sullivan doctrine and make it easier for public figures to sue for defamation—a bill championed by Governor Ron DeSantis—has recently been pronounced dead, after protests from conservatives who feared that the right-wing media would fall victim to it, too.
For the most principled, die-hard adherents of Sullivan, the imposition of liability, even on Fox News for election lies, raises worries about a more general chill on reporting. The media columnist Steve Roberts, for instance, has written that when Fox News’s lawyers “argue that a defeat in the Dominion case ‘would have grave consequences for journalism across this country,’ anyone who cares about a free and unfettered press should take that warning very seriously.”
But is the Sullivan doctrine, in its current form, really the best we can do? Consider what happened to Shaye Moss and her mother, Ruby Freeman, who were election workers in Georgia in 2020. Members of Trump’s camp, including Rudy Giuliani, promulgated the bogus story that the two Black women, working at a ballot center, had hidden suitcases full of fake Biden ballots under a table and added their contents to the vote count late at night, when election observers had left. Then the Gateway Pundit—a far-right site that, according to the analytics service Similarweb, enjoyed a post-election traffic surge that brought its page views to more than three hundred million by the year’s end—repeatedly served up versions of the story, despite the fact that it had been forcefully debunked, including by Georgia’s secretary of state. A typical headline: “What’s Up, Ruby? . . . BREAKING: Crooked Operative Filmed Pulling Out Suitcases of Ballots in Georgia IS IDENTIFIED.” The article not only featured seven photographs of Freeman but named her place of business. The women were inundated with threats and went into hiding; their lives were effectively shattered by a smear campaign. They are suing the proprietor of the Gateway Pundit, Jim Hoft, for defamation and emotional distress.
The Sullivan doctrine leaves it far from obvious, though, that they were defamed. According to the defendant, Moss and Freeman were “limited purpose public figures”—by their very efforts to contest the falsehoods the Gateway Pundit helped spread, they had, in the legal adage, stepped into the spotlight—and so must prove actual malice. Hoft denies having knowingly or recklessly spread false stories about the plaintiffs, and, without access to his state of mind, the plaintiffs’ lawyers may struggle to prove otherwise. The Sullivan doctrine has allowed people to perpetrate a fraud with impunity when they have made no effort to verify the facts.
Our political culture is now strewn with lies; the Washington Post fecklessly awards Pinocchios, but few liars are truly held to account. And though castigating political actors is part of the rough and tumble of the public arena, lies about them are peculiarly damaging to the commonweal. Morally, Hoft’s defense may be preposterous; legally, it is all too plausible. Contemplating future media-stoked “stop the steal” campaigns, we ought to consider whether Elena Kagan had a point. What if democracy would be better served by narrowing the purview of New York Times v. Sullivan, reducing the culture of impunity, and encouraging media outlets to be more responsible about the facts they purvey?
In truth, stricter defamation laws won’t save us, either. In the first several decades of our Republic, an era during which libel plaintiffs routinely prevailed in court (when they didn’t resort to pistols), newspapers—operating mainly as organs of political parties—were positively littered with libel. Today, the U.K. maintains a relatively plaintiff-friendly approach to defamation, making it a fine venue for libel-suit tourists, and yet the Daily Mail and the Sun are not notable for their fair-minded coverage of controversial matters. Many forms of misinformation (the claim that Covid is a hoax, say, or that the election was rigged) don’t take the form of defamation. And plenty of the most inflammatory and misleading things that Fox News reports are not even strictly untrue. The Dominion settlement might make Fox News more cautious about airing certain dubious claims; it will not make the channel, as its discarded motto once declared, fair and balanced.
It’s still possible to ask whether we could do a little better—whether thoughtfully recalibrating the Sullivan doctrine could result in at least incremental improvement, by helping the law recognize the importance of truth to democracy. The actual-malice standard defeated worthy plaintiffs even when Sullivan was delivered: a Washington State legislator lost his seat after an unscrupulous red-baiting campaign against him, won a libel suit in 1964, and then saw the win reversed after the Sullivan decision, because he hadn’t proved “actual malice.” Six decades later, history has delivered a verdict of its own about the danger posed by the negligent publication of falsehoods. In the project of legal reform, thought precedes action—sometimes by generations—which is why reimagining defamation law should not be left as a conservative monopoly. When it comes to protecting public discourse amid technological transformation, a healthy polity can’t give up on fine-tuning the ground rules. Democracy dies in defeatism. ♦
An earlier version of this article misstated the category of person to whom New York Times v. Sullivan applied.
