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New York Times Co. v. Sullivan
[376 U.S. 254]
Warren Court,  Decided 9-0,  3/9/1964
Read the actual decision


Chief Justice Earl WarrenSullivan, in an effort to protect the free flow of ideas and opinion in a politically charged environment, set the rather disturbing precedent that lies are okay, as long as the target is a "public figure". The case represents the capstone of the long and confusing journey the libel laws have taken from the colonial period.

In order to see where Sullivan leads, a short look at the turbulent history of libel law is needed. Fancy words aside, libel has always been defined as a written statement that tends to defame an individual, or besmirch his reputation. (Closely related, slander involves spoken comments.) In the colonial period, and extending through the ill-fated Sedition Act of 1798, simple truth was not a defense for libel -- a tarnished reputation was all that needed to be demonstrated. The defendant in such a suit needed to prove to a judge that he had good reason for launching his attack -- or that he had not been responsible for the attack at all. The jury was only allowed to set the damages.

As the nineteenth century dawned, libel law slowly came to accept truth as a defense, though the defendant still had to show that he had published the true statements for justifiable reasons. Over the years, some states developed a doctrine called the "minority rule", which held that small-fry could be forgiven the occasional false statement in their efforts to expose official corruption, as long as the statements were not made maliciously.

At the close of the nineteenth century, the courts had begun to tighten the allowance for minority privilege, and hold to the malice defense as a protection for the reputations of otherwise good people -- who may not want to participate in government without this protection. Concerns that tight restrictions on libelous falsehoods would dampen political discussion or increase litigation did not prove out.

The Supreme Court confirmed the state of libel law in its Chaplinsky v. New Hampshire (1942) and Beauharnais v. Illinois (1952) decisions, both of which clearly considered libelous statements to be outside the protection of the First Amendment. This was all to change in Sullivan

At issue were four black clergymen who ran a full-page ad in the New York Times declaiming injustice in the South, and asking for funds for the civil rights movement there. Sullivan, an elected Alabama official, claimed that the ad defamed him and sued for satisfaction. The ad did, in fact, contain a variety of half-truths, most of a general nature rather than personal. But the Alabama judge charged the jury in such a way that a finding for the plaintiff was a foregone conclusion. Sullivan was awarded $500,000 from each of the defendants.

In unanimously reversing the decision, the Supreme Court had to disavow its earlier Chaplinsky and Beauharnais decisions.

Instead, the Court declared that "[libelous statements] can claim no talismanic immunity from constitutional limitations." In his majority opinion, Justice William Brennan used an oft-quoted substantiation for the decision, 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."

He went on to expand this very logical statement to include open falsehoods, saying that "erroneous statement is inevitable in free debate..." and must therefore "...be protected if the freedoms of expression are to have the 'breathing space' that they 'need ... to survive'." He felt that any requirement that critics assure the truth of their writings would be intolerable "self-censorship."

Such a substantiation from the Court for negligent falsehood seems almost other-worldly. But there was some truth in Justice Brennan's justification of his position in that he felt that political opposition by the smaller against the larger could be quashed out of the mere fear of having to substantiate otherwise true statements in an expensive libel suit.

The Court did place a cap on falsehood in cases where the libeled official could prove actual malice on the part of the publisher of the statements, to include that the statements were either knowingly false or made with a reckless disregard for their truthfulness. This was a harsher standard than the previous definition of malice, or simple ill-will.

Immediately following Sullivan, First Amendment scholars began to ruminate whether the Court would protect libel against other than "public officials". In Curtis Publishing Co. v. Betts and Associated Press v. Walker, both in 1967, the Court extended the findings of Sullivan to include public figures in general -- movie stars, athletes, et al., substituting the idea that all debate on "public issues" should be protected from libel.

The next logical step, of course, was to test whether the concept would now be extended to completely private persons. In Gertz v. Robert Welch, Inc. (1974), the Court drew a line on this issue arguing that, since private individuals did not have the wherewithal to defend themselves against libel suits as one might expect of a public personage, the Sullivan decision would not apply to such actions.

Despite this wide-ranging decision in support of press freedom, critics still find fault with Sullivan because it did not simply provide total immunity from libel prosecution for the press. The need for the media to insure against "reckless disregard" for the truth is seen as an unreasonable intrusion into editorial discretion, and the threat of damages for spreading falsehoods is feared to dampen political discussion. Others feel just the opposite, that Sullivan denies compensation to those who have been viciously libeled, especially by a powerful media organization.

There have been suggestions that a suitable middle ground would be an action for the discovery of truth -- without the threat of monetary damages -- wherein the libeled personage would at least have his reputation cleared. The idea has been tabled over concerns that it would ask the judiciary to decide between truth and falsehood. It's unclear why that would be considered a problem, as it does so every day on other issues.

In the final analysis, the Warren Court typically opened a can of worms in its Sullivan decision, using it as a vehicle to further its interest in civil rights efforts rather than viewing it strictly on its own constitutional and historical merits. Free-flowing political discussion -- not always pretty -- is certainly necessary, as is investigative journalism. Factual falsehoods, as carefully differentiated from sharply divergent opinions, are not a necessarily protected part of that.

Accepting that even accidental -- more likely unintentionally sloppy -- factual falsehoods happen, a good solution might be to require the publisher of the statements simply to retract them, at his own expense, and in the same manner and degree in which he originally published them. Malicious or recklessly negligent falsehoods would still be subject to damage awards, as they are and have been, under the more stringent definitions in Sullivan. The burden of proof to demonstrate factual truth -- or at least a bona fide effort to insure same -- should be on the publisher; to prove malice, on the plaintiff. That makes common sense.


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Other decisions pertaining to Prior Restraint:

Near v. Minnesota    [283 U.S. 697 (1931)]  Hughes Court
New York Times Co. v. United States    [403 U.S. 713 (1971)]  Burger Court

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