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Washington Lawyer

Window to the Past: New York Times Co. v. Sullivan

From Washington Lawyer, October 2014

By Rick Schmitt

New York Times opener, photo by Corbis ImagesLibel law has had a long and tortured history.

In 1484 a famous, if extreme, piece of justice was laid upon a William Collingbourne for pinning a whimsical rhyme to the door of St. Paul’s Cathedral that poked fun at King Richard III and his inner circle. The monarch did not get the joke. For his crime, Collingbourne was hanged, drawn and quartered.

Libel laws were part of the English common law exported to America, and while remedies lightened up, many of the same legal principles endured. Libel in many states was considered a strict liability tort. Harm to reputation was presumed when articles and writings containing factual errors were published, even if the errors were minor or inconsequential.

Alabama was one of those states taking the tough view. And in the fall of 1960, it made quick work of a libel suit filed by a city commissioner in Montgomery named L.B. Sullivan, who felt he had been defamed over the contents of a newspaper ad. Sullivan won a fulsome verdict. In ordinary times, such a civil action would hardly have created a stir. But, in the South, amid the great desegregation battles of the 1960s, those were no ordinary times.

Four years later, the case of New York Times Co. v. Sullivan reached the U.S. Supreme Court, which rewrote the law of libel (and upset the Alabama verdict) in holding that citizens and journalists have a broad right under the First Amendment to criticize their public officials. That there was even an open question 175 years after ratification of the U.S. Constitution made it a landmark case and one of the most famous in the Court’s history.

“The ruling instantly changed libel law in the United States and it still represents the clearest and most forceful defense of press freedom in American history,” the Times itself editorialized on the occasion of the 50th anniversary of the decision this past spring.

Sullivan infused the common law of libel with First Amendment considerations, providing what the Court described as “breathing space” for false speech that was the product of honest mistakes. It also turned upside down the burden of proof in libel cases, for the first time putting the onus on plaintiffs to prove that they had been victimized by false statements—and that those statements were made with “actual malice.” That was a big change from the common law, which operated on the premise that defendants had to prove that everything they wrote or said was true.

“It is a fundamental, radical surgery of centuries’ old law, and no one should make any mistake about how bold and brave it was,” Bruce Sanford, a veteran First Amendment and media lawyer at Baker & Hostetler LLP, says of the decision.

For a half century, Sullivan has been a bulwark of investigative reporting about government and powerful persons and institutions, public and private. It has advanced a fervently pro-free-speech framework that is reflected in the High Courts’ decisions to this day on such controversial subjects as the rights of anti-abortion protesters and peddlers of animal-crush videos.

That it all happened in the context of the civil rights movement was hardly a coincidence. This was the Court of Chief Justice Earl Warren operating at the apex of its influence, just a decade removed from its landmark school desegregation decision in Brown v. Board of Education. The Sullivan verdict threatened to throw sand in the gears by bankrupting civil rights leaders and the northern media that was exposing abuses to the nation and world. Warren assigned the opinion to his right-hand man for politically tricky matters: Justice William J. Brennan Jr.

In the ensuing years, the Sullivan decision has been criticized as allowing too much speech, contributing to a decline in the quality of public debate and discourse that has become a staple of cable TV and talk radio. Some draw a link between the free-wheeling, occasionally error-prone sort of speech that Sullivan promotes and a diminished pool of citizens willing to seek public office. There are far fewer libel suits being filed today than a generation ago reflecting the enormous costs and risks of litigation, and the fact that the law has become so settled against plaintiffs. The Supreme Court has not had a libel case in more than 20 years.

But Sullivan also remains very much relevant in a digital age where the power of the press is suddenly in the grasp of every citizen with a laptop or mobile device. The explosion in published speech is increasing the chance that libelous statements will be made about people, but it also increases the opportunity for them to respond and correct them. Some of the biggest media companies today are exempted from libel suits stemming from third-party content they carry because of protections enacted by Congress to ensure a free and unfettered Internet. But much of that content would not be created in the first place without the protections that Sullivan affords.

“It so eliminated such a huge swath of potential liability and exposure, it cleared away threats that if they existed today would have changed the landscape of the Internet and Web sites and blogging . . . everything,” says Ted Boutrous, a partner with Gibson, Dunn & Crutcher LLP, who has represented a number of media clients over the years. “It is the foundation of everything we see today in terms of this wild exchange of information.”

The Advertisement
The 10-paragraph full-page ad that appeared on page 25 of the March 29, 1960, New York Times was a plea for national attention and support. Titled “Heed Their Rising Voices,” a phrase taken from a recent Times’ editorial, the ad described “an unprecedented wave of terror” against civil rights demonstrators by “Southern violators.”

Montgomery had become ground zero in the fight. That spring the sit-in movement came to Alabama, and 35 students from Alabama State College were arrested after seeking service at a whites-only snack bar in the Montgomery courthouse. When 800 of their classmates decided to march in protest to the state capitol, they were met with Klansmen wielding baseball bat, while city and state police stood idly by.

At least as worrisome, the movement’s spiritual leader, Martin Luther King Jr., had been charged by state revenue authorities with tax evasion and perjury. While the charges were widely seen as politically motivated, King, who had first become famous as a leader of the Montgomery bus boycott, faced a trial in a Montgomery courtroom and the prospect of spending years in jail. The advertisement cited other acts of intimidation against King, including multiple arrests and the bombing of his Montgomery home.

The ad was arranged by a group of civil rights leaders in the North calling itself the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South.” Describing recent events, without identifying any of the individual “violators” by name, it was a powerful, if factually imperfect, piece of propaganda and advocacy. Eleanor Roosevelt and a host of Hollywood stars were listed as supporters of the appeal, along with a group of ministers, including four from Alabama, affiliated with the newly formed Southern Christian Leadership Conference (SCLC).

In Montgomery, the advertisement touched a nerve. The Montgomery Advertiser published an editorial on April 7, 1960, decrying the ad as an attempt “to prey on the credulity, self-righteousness and misinformation of northern citizens.”

While the Times was lightly circulated in the South in those days, among its 35 daily subscribers in Montgomery was a Harvard Law School-trained lawyer by the name of Roland Nachman, who had established himself as one of the state’s preeminent libel lawyers. When Nachman opened his newspaper, he immediately recognized that several false statements in the ad made a clear-cut case of libel under Alabama law.

“At that moment, Nachman became the prime moving force in what would become the lawsuit brought against the Times,” according to New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press, a historical account of the case published in 2011 by the University Press of Kansas. “Nachman clipped the page from the newspaper and delivered it to the three city commissioners,” including Sullivan, a former state public service director, who had won election to the Montgomery city commission the year before, painting his opponent as “weak on the race issue and public order.”

On April 19, with Nachman as his lawyer, Sullivan filed a libel suit in Montgomery County Circuit Court against the Times seeking $500,000 in damages. The four SCLC ministers from Alabama listed as endorsees on the ad were joined as parties, in part to prevent the case from being removed to a federal court that might be more hospitable to the defendants. 

The Trial
Circuit Judge Walter B. Jones was an ardent segregationist, “a devotee of the Confederacy and the Southern way of life,” Anthony Lewis, the former New York Times’ Supreme Court correspondent, wrote in Make No Law, his definitive account of the Sullivan case. Jones’ father fought in the Confederate army and carried the flag of truce from Lee to Grant at Appomattox. On the centennial of the founding of the Confederacy, in 1961, Montgomery staged a reenactment of the swearing in of Confederate President Jefferson Davis; Judge Jones administered the oath of office.

Jones’ rulings had been central to the state’s efforts to fight the U.S. government and the civil rights movement. “He forbade the NAACP from doing business in Alabama, barred demonstrations by Freedom Riders against segregation on buses and blocked the U.S. Department of Justice from examining voter-registration records in any county in Alabama,” according to Lewis. Seating in his courtroom was segregated, and at a subsequent libel trial against the Times, Jones praised “white man’s justice, a justice born long centuries ago in England, brought over to this country by the Anglo-Saxon race.”

Times’ lawyers saw their first best hope of prevailing as challenging the jurisdiction of the Alabama court to hear the case. The 394 copies of the newspaper sold in Alabama—out of a daily circulation of 650,000—did not amount to a substantial connection to the state, they argued. Nor did occasional visits by Times’ correspondents from New York. Alabama accounted for just $18,000 of the $36.5 million in revenue that the Times generated in the first five months of 1960, the lawyers pointed out.

Jones denied the newspaper’s motion, and as an alternative grounds for keeping a grip on the case, found that the Times’ lawyers had, through a drafting error, entered a general appearance, subjecting the newspaper to the jurisdiction of his court. The lawyers had used a form contained in a leading text on Alabama legal procedure that Jones himself had authored. In effect, according to Lewis, “the judge overruled his own book.”

The case was tried before an all-white male jury on the first three days of November 1960. And the law seemed stacked against the Times from the beginning.

In those days, defamatory statements were presumed to be false, so the burden was on the defendant to prove that they were entirely true. What’s more, a plaintiff did not have to prove actual injury to his or her reputation because this, too, was inferred from publication.

“All Sullivan had to do was show that people would think the ad was about him, even though he was not mentioned, and that there were mistakes in the ad,” says Stephen Wermiel, a professor at American University Washington College of Law and co-author of a noted biography on Brennan. “Under Alabama law at the time, that was his total burden, and the burden shifted to the New York Times, which had only one defense, which was to prove the truth of the ad.”

Nachman argued that the ad implicated Sullivan by referencing actions of the Montgomery police department; while Sullivan did not manage the day-to-day activities of the department, he had broad authority for it as commissioner. Sullivan himself testified the ad reflected on his “ability and integrity.” Five witnesses for the plaintiff, including the editor of the Montgomery Advertiser, said they all associated the statements in the ad with Sullivan or the police department.

The trouble for the Times was that the ad prepared by the civil rights group contained errors, and that under Alabama law, even minor or in consequential statements that were false voided the defense of truth. The ad misstated the number of times that King was arrested, and the title of a song that the student protesters at Alabama State College sang as they marched to the capitol. The most serious error was the claim that a dining hall at the college had been padlocked to starve the students into submission. The Times’ lawyers argued that none of the false statements, however, could be reasonably construed as referring to Sullivan, and suggested that, if anything, his reputation and standing in the community had been enhanced.

Jones sent the case to the jury with instructions that the advertisement was libelous, false, and injurious. He refused to dismiss the case against the four ministers even though they had testified they had not known about the ad in advance or approved its contents. "Three issues were left for the jury to decide,” according to Lewis. “Had the defendants published the advertisement? Were the statements in it ‘of and concerning’ L.B. Sullivan? And if the jury answered yes to those questions, how much money should be awarded to Sullivan as damages?”

A verdict took a little more than two hours: $500,000 for Sullivan, the full amount of the damages he sought, against the Times and the ministers. “State Finds Formidable Legal Club to Swing at Out-of-State Press,” the Montgomery Advertiser reported.

The Alabama Supreme Court affirmed Jones in August 1962, and the strategy of intimidation by libel suits spread. By 1964, southern officials had brought nearly $300 million in libel actions against the press. Plaintiffs moved aggressively to collect their judgments. The automobiles of three of the four ministers in the Sullivan case were sold at a state-ordered auction; real estate owned by the fourth minister was attached for quick sale. “Together with jail and violence, such financial persecution was driving the SCLC’s leadership from the toughest parts of the South,” Taylor Branch wrote in his Pulitzer Prize-winning book Parting the Waters: America in the King Years, 1954–63.

The Times, which had just endured a debilitating labor strike, faced ruin.

“The amount of damages sought was extraordinary, and there were several companion cases. If they all resulted in verdicts in the amounts claimed, the Times, which was very weak at the time … it was out of business,” recalled James Goodale, then a young lawyer for the Times who later became its general counsel. “They were a real threat, and it was not necessarily easy to win. How do you win a case that is in fact a political case when those that decide are prejudiced and out to maintain a lifestyle that is not the same as yours, and you are in an unfriendly atmosphere in order to prove your case? It was a really big threat.” 

The Appeal
U.S. Supreme Court review was hardly guaranteed. The Court had not taken a libel case in years; what’s more, on several occasions, it had held that libel, like obscenity, was not constitutionally protected speech. If the Times were to prevail, it had to find a way to persuade the Court that the old rules no longer applied.

“Before Sullivan, the Court had shown no interest in libel law at all. It was not something that was on anybody’s radar screen as a constitutional issue,” says Lee Levine, a Washington, D.C., media lawyer and First Amendment expert. “The fact of the matter was, Alabama common law was no different in material respects than the law in other states.”

The Times turned to Herbert Wechsler, a constitutional scholar at Columbia Law School, who made the backbone of his case the rise and fall of the Sedition Act of 1798, which made it a crime to criticize the federal government, then on a war footing with France. In practice, the act became a tool for Federalists to attack Republicans, and later expired amid a widespread belief that it violated the First Amendment. Wechsler saw the history as an apt analog for the Alabama case, which he wrote in Court papers “transforms the action for defamation from a method of protecting private reputation to a device for insulating government against attack.”

Sullivan’s lawyers focused on the law as it seemed at the time and sought to portray the Times as a greedy opportunist. In Court papers, Nachman argued that the paper had “stooped to circulate a paid advertisement which libeled respondent with violent, inflammatory and devastating language.”

Oral argument was January 6, 1964, and the justices “fully understood what was at stake for the civil rights movement they had helped to advance in Brown,” according to The Progeny, Levine and Wermiel’s book about Brennan’s fight to preserve the legacy of Sullivan, published earlier this year. “If the court did not impose some restraints, Brennan believed, the progress toward desegregation that had begun with Brown ten years earlier would be seriously retarded.” King was in the court gallery for the argument that day, and according to Levine and Wermiel, Justice Arthur Goldberg “abandoned any pretense of impartiality when he slipped the civil rights leader a copy of King’s book, Stride Toward Freedom, for him to sign.”  

The Decision
The opinion came March 9, 1964. It was both a majestic reaffirmation of the role of free speech and free press in America under the Constitution, and a radical overhaul of the then-existing ground rules for libel suits by public officials. In a withering analysis, Alabama’s judgment was reversed, unanimously, as falling far short of the new constitutional standard.

“Thus, we consider this case against the background of 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,” Brennan wrote. “The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.” The Court’s answer was a resounding “no.”

Brennan first examined the role that false statements play in the realm of political debate, concluding that they are part of the process, a tactic as common among advocates as exaggeration or vilification.

Some protection of erroneous statements is required if the freedoms of expression are to have the “breathing space” they need to survive, he said, borrowing a phrase from a 1963 case in which the Court struck down Virginia state laws aimed at restricting NAACP integrationist lawsuits. The fact that factual errors may lead to injury to one’s official reputation, he said, does not alone justify punishment. “If judges are to be treated as ‘men of fortitude, able to thrive in a hardy climate,’” he said, citing a 1941 case in which the Court vacated a contempt citation against critics of a California court, “surely, the same must be true of other government officials, such as elected city commissioners.”

Taking a cue from Wechsler, Brennan cited the “great controversy” over the Sedition Act, and how it was “vigorously condemned as unconstitutional” in an attack joined by Jefferson and Madison. “The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government,” Brennan wrote, adding that while the Sedition Act lapsed without ever being reviewed by the Court, “the attack upon its validity has carried the day in the court of history.” 

Large civil damages such as awarded in Alabama, Brennan said, were at least as inhibiting to speech as a criminal prosecution for seditious libel. That threat, combined with the Alabama requirement that the critic of official conduct guarantee the truth of all of his factual assertions, he said, is a recipe for self-censorship. “The rule dampens the vigor and limits the variety of public debate,” Brennan wrote.

But the right to criticize, he said, was not absolute. Setting down the famous test for libel, Brennan wrote: “The Constitution requires a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” He noted that such a “privilege for criticism” was appropriately analogous to the protections that public officials have from private libel suits under state and federal law. “It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves,” Brennan said.

Applying the new rules, Brennan found that the Times had not acted with actual malice. Testimony by a Times’ official that the ad was “substantially correct,” which the Alabama Supreme Court deemed “cavalier” and evidence from which the jury might infer malice, was, in Brennan’s view, “reasonable” and even supported by “respondent’s own proofs.” He disposed of the case against the ministers in a single paragraph, saying even if they had authorized the use of their names on the ad, there was no evidence they had behaved recklessly or were aware that the statements were erroneous. The opinion concluded by declaring the evidence additionally defective on the question of whether the ad was “of and concerning” Sullivan, noting that the ad did not make “even an oblique reference” to him personally. In effect, the Alabama courts were attempting to punish an otherwise impersonal attack on government, which Brennan said “strikes at the very center of the constitutionally protected area of free expression.”

All nine justices agreed that the Alabama judgment should be reversed. Brennan was joined by five other justices in his opinion. Writing separately, Justices Hugo Black, William Douglas, and Goldberg took the view that the First Amendment required an absolute privilege for critics of official conduct even if the criticism was intentionally false.  

The Progeny
“This was an extraordinary pivot,” says Sandy Baron, former executive director of the Media Law Resource Center in New York. “This was an area that had never been looked at through the prism of the Constitution and the First Amendment, and that is what Brennan and his colleagues did, with the help of some very smart litigants.”

In relatively short order, the Times’ rule was extended by the Court to coverage of public figures, including celebrities, political candidates, and corporate tycoons, and even to private individuals involved in matters deemed of public interest or concern.

The Court never again achieved the level of consensus in those cases that it had attained in Sullivan, however, adding credence to the notion that the Sullivan decision was the product of special circumstances, namely the justices’ concern for civil rights. Other justices felt that in later extending the Sullivan standard, the Court was giving short shrift to the legitimate interest that public figures had in preserving their reputation. According to Wermiel, Brennan himself came to regret using the words “actual malice,” concerned that juries were interpreting the standard to require only personal animus or hostility toward the plaintiff rather than reckless disregard of the truth as he intended.

Today, the odds of a public figure winning a libel suit against a media defendant are greatly reduced, to the point where some scholars question whether libel still exists as a viable body of law. The number of trials against traditional print and broadcast media defendants has declined dramatically. Judges these days usually approach a libel suit arising out of a matter of public concern with a critical eye. Dismissals are coming earlier and more frequently. Sanford, the media lawyer at Baker & Hostetler, says he currently has a case load of a half-dozen or so libel cases, compared with 50 or more a generation ago.

“The presumption, because of Sullivan, is that you have the freedom to report about matters of public concern, even if you get something wrong, and it results in injury to someone’s reputation,” Levine says. “As a practical matter, that means it is very, very hard for someone to win a libel suit about a matter of public concern.”

Appeals courts have served as an additional safety valve for media defendants. The Sullivan decision made the standard of proof for a plaintiff—clear and convincing evidence of actual malice—an issue that is reviewable on appeal. That makes the challenge that much more difficult for a plaintiff.

“Reputable journalists may get it wrong, but they do not consciously falsify,” says David Kendall, a partner at Williams & Connolly LLP. Kendall defended The Washington Post in a libel suit brought by the president of Mobil Oil in the 1980s over an article that described how the executive had used his position to “set up” his son in the shipping business. A jury sided with the plaintiff. Judge Oliver Gasch awarded judgment notwithstanding the verdict to the Post defendants, and the D.C. Court of Appeals en banc affirmed, finding the story substantially correct.

“By and large, the rules do work. They are rules that courts can follow and juries can follow. There has not been a lot of confusion in the lower courts. It is a stable body of law, well understood and well applied,” says Bruce Brown, executive director of the Arlington, Virginia-based Reporters Committee for Freedom of the Press. “It is true the Supreme Court has not taken new cases to expand rights, but neither has the Court needed to take cases to clarify existing rights. I think that does speak to the fact that the rules are pretty pragmatic, and they are working pretty well.”

The Internet has raised new questions and issues for how those rules should be applied. Anonymous bloggers, self-styled citizen journalists, and political partisans operating on the Web are finding that they are subject to the same rules under Sullivan as their print forebears. Whether they share the same set of dedication to fairness and accuracy is not as clear.

Sanford sees particular risks from a 1989 Supreme Court case where the Court indicated that reporters ignoring obvious sources for their reports could be found to have acted with actual malice because they acted with “purposeful avoidance of the truth.”

“I think that case is very instructive to bloggers and people in social media these days,” Sanford says. “If anybody thinks they can get away on the Web doing that sort of hatchet job, they are wrong.”

For some of the biggest media companies, meanwhile, the Sullivan standard has taken a back seat to other free-expression protections that have emerged in the information economy.

Internet service providers have immunity from civil defamation suits under Section 230 of the Communications Decency Act of 1996 so long as they do not produce the disputed content themselves. A recent Harvard Law Review article referred to Section 230 as “The ‘New,’ New York Times v. Sullivan,” as important to new media lawyers as Sullivan was to old media lawyers.

The courts have given a wide berth to the scope of Section 230 even when operators know third-party postings could be defamatory or when the operators add their own comments. In June, for instance, a federal appeals court dismissed a libel suit by a cheerleader for the Cincinnati Bengals who sued TheDirty.com over a user post claiming she was promiscuous with team members and had a sexually transmitted disease. The operator of The Dirty even added his own bit of snarky commentary to the post. But the appeals court held that he had not forfeited his immunity from suit.

Congress enacted Section 230 to ensure a free and open Internet unfettered from regulation. Most big Internet companies have policies that forbid sharing speech that is defamatory or otherwise actionable. But these companies contend they do not have the capacity to monitor every posting.

A series of judgments against users could lead to calls for more regulation. The big media companies certainly have the deep pockets that are attractive to plaintiffs’ lawyers. Unlike Sullivan, the immunity under Section 230 is a bit of congressional grace that could be taken away at any time. Some warn that popular support for speech freedoms could be imperiled if the lessons of the Sullivan era are forgotten or if the decision is taken for granted.

But perhaps the biggest and most dramatic evidence of Sullivan’s enduring impact has been in the United Kingdom, which last year loosened its ancient strict liability system for libel to give more free speech a chance, and to shed its image as a preferred venue for claims against American authors and publishers by Saudi bankers and Russian oligarchs, among others, looking to do an end run around the First Amendment.

The changes afford some important new protections for authors of material considered of public interest. The new law also tightened up standards for permitting noncitizens access to U.K. courts in an effort to roll back their reputation as a haven for “libel tourism.” The overhaul came after Congress cracked down on the ability of federal courts to enforce foreign libel judgments that were obtained in forums inconsistent with U.S. legal standards. 

“The British said, ‘We have been shamed by this. We have become the laughingstock,’’’ says Laura Handman, a partner with Davis Wright Tremaine LLP. The moves, she notes, are not nearly as radical as Sullivan, but then again, Sullivan was truly singular.

New York Times v. Sullivan made a profound contribution to democracy and to an informed citizenry,” Handman says. “We are unique in having it. It remains one of our proudest moments.”

Rick Schmitt is a freelance writer living in Maryland.