New York Times Co. v. Sullivan, 376 U.S. 254 (1964), argued 6 Jan. 1964, decided 9 Mar. 1964 by vote of 9 to 0; Brennan for the Court, black, Douglas, and Goldberg concurring. In this case, the Supreme Court for the first time considered the extent to which the constitutional guarantee of freedom of
speech and the press limits the award of damages in a
libel action brought by public officials against critics of their official conduct. Sullivan, an elected commissioner of the city of Montgomery, Alabama, brought a civil libel action against four black clergymen and
The New York Times alleging that he had been libeled by statements in a full‐page advertisement that was carried in the
Times. The advertisement, which was entitled “Heed Their Rising Voices,” described the
civil rights movement in the South and concluded with an appeal for funds.
It was uncontroverted that several statements contained in the text of the advertisement were inaccurate. For example, the advertisement stated that students protesting racial segregation sang “My Country, 'Tis of Thee” on the steps of the Alabama State Capitol, but they had actually sung “The Star‐Spangled Banner”; it also said that several students were expelled from school for leading that protest, but they were actually expelled for demanding service at a segregated lunch counter in the Montgomery County Court‐house on another day; finally, the advertisement claimed that “the entire student body” of Alabama State College protested the expulsions, but only a majority of the students, not the “entire” student body, had protested the expulsions.
The trial judge submitted the case to the jury under instructions that these statements were libelous per se, that falsity and malice were presumed, and that general and punitive damages could be awarded without direct proof of pecuniary loss. Under these instructions, the jury returned a judgment for Sullivan in the amount of $500,000 against each of the defendants.
The Supreme Court reversed, holding that the rule of law applied by the Alabama court violated the
First Amendment. At the outset, the Court confronted its own past declarations to the effect that libelous utterances are no essential part of any exposition of ideas (
Chaplinsky v. New Hampshire, 1942) and that they are not constitutionally protected speech (
Beauharnais v. Illinois, 1952). In rejecting these prior declarations, the Court explained that, like “the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations”; to the contrary, libel “must be measured by standards that satisfy the First Amendment” (p. 269).
Turning to the task of articulating these standards, Justice William J.
Brennan observed in an oft‐quoted passage that “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” (p. 270). Drawing upon history, the Court analogized the
civil law of libel, as applied by the Alabama court, to the
Sedition Act of 1798, which had been invalidated “in the court of history” because of the restraint it “imposed upon criticism of government and public officials” (p. 276).
The essential difficulty, Brennan explained, was that “erroneous statement is inevitable in free debate,” and even false statements must therefore “be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive’” (pp. 271–272). Thus, the Alabama rule of law could not be “saved by its allowance of the defense of truth,” for a “rule compelling the critic of official conduct to guarantee the truth of all his factual assertions” would lead to intolerable “self‐censorship.” Indeed, under such a rule, “would‐be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” Such a rule, the Court concluded, “dampens the vigor and limits the variety of public debate” (pp. 278–279).
With these considerations in mind, the Court held that public officials may not recover damages for defamatory falsehood relating to their official conduct unless they can prove
actual malice; “that the statement was made with … knowledge that it was false or with reckless disregard of whether it was false or not” (pp. 279–280).
New York Times revolutionized the law of
libel and, equally importantly, it signaled a critical shift in our general First Amendment jurisprudence.
New York Times abandoned the traditional approach, which concentrated solely on whether libel was “protected” or “
unprotected” speech, and embraced a more speech‐protective analysis, which focused on the danger that actions for libel might deter expression that lies at the very heart of First Amendment concern. By fashioning its First Amendment standards in light of these “chilling” effects, the Court took an important step toward a more sensitive, less formulaic mode of analysis, a mode of analysis that is the hallmark of contemporary First Amendment jurisprudence.
Perhaps the most important question remaining after
New York Times was whether the privilege it recognized governed only libel actions involving the official conduct of public officials or whether it extended to other persons. In
Curtis Publishing Co. v. Butts (1967) and
Associated Press v. Walker (1967), the Court, in a sharply divided set of opinions, extended the
New York Times holding from public officials to figures such as movie stars, athletes, industrialists, and other individuals who, though they are not officials, are nonetheless well known to the public. In reaching this result, the Court rejected the argument that
New York Times was premised on, and thus limited by, the analogy to seditious libel. Rather, the Court reasoned that
New York Times rested on a profound national commitment to uninhibited, robust, and wide‐open debate on public issues. The Court therefore concluded that libelous utterances concerning public figures, like libelous utterances concerning public officials, must be governed by the
New York Times privilege.
Several years later, however, in
Gertz v. Robert Welch, Inc. (1974), the Court, again sharply divided, recognized an important limitation on the scope of
New York Times, holding that it did not extend to libel actions brought by private individuals, even where the defamatory statement related to a matter of “public concern.” The Court explained that, unlike public officials and public figures, private individuals are usually unable to rebut the libel effectively and they usually have not gone out of their way to seek the public's attention. The Court reasoned that, because private individuals are more vulnerable to injury and more deserving of recovery than either public officials or public figures, they may recover damages for libel merely by showing that the publisher or broadcaster had acted negligently in disseminating the defamatory material.
New York Times and its progeny have been criticized as both overprotective and under‐protective of free expression. Some critics maintain that
New York Times failed adequately to protect the press because its “reckless disregard” standard implicitly authorized highly intrusive inquiries into the thought processes of reporters and editors and because it failed to preclude large and potentially “chilling” damage awards whenever a jury would find that the press has acted with “reckless disregard.” These critics, echoing the views expressed by Justices Hugo
Black, William O.
Douglas, and Arthur
Goldberg in their concurring opinions in
New York Times, argue that the press should have absolute protection against actions for libel. Other critics maintain that
New York Times gave too much protection to the press and failed to protect the innocent victims of libel. These critics fault
New York Times for denying innocent victims reasonable compensation for the harm they suffer and for preventing such victims from obtaining a judicial declaration of falsity, which would at least set the record straight.
Several proposals have been offered in recent years in an effort to “cure” these “deficiencies.” The most intriguing of these proposals calls for the creation of a new civil action in which the alleged victim of a defamatory falsehood could sue for a judicial declaration of falsity upon waiving the right to sue for damages. The theory is that such an action would reduce litigation costs and enable the victims of libel to vindicate their reputations without intruding into the editorial process or threatening the press with potentially devastating damage awards. Although this approach would avoid some of the problems identified with
New York Times, it would effectively empower the judiciary to decide on a case‐by‐case basis whether specific statements made by the press are “true” or “false.” It is questionable whether such a relationship between the judiciary and the press would comport with the underlying theory and assumptions of the First Amendment.
New York Times cannot be fully understood without recognizing that it was driven not only by concerns about free expression but also by the unique historical circumstances in which it arose.
New York Times was, in short, a product of the civil rights movement of the 1950s and 1960s. Like other devices designed to obstruct the civil rights movement, the libel judgment against the
New York Times and the African‐American clergymen named in the advertisement was designed to dampen the drive for civil rights. After all, if this Alabama jury's massive damage award could be sustained on the basis of such minor inaccuracies, then no person or institution would be free to challenge racial segregation in the South.
New York Times, one of most important decisions in the history of the First Amendment, was thus not only a triumph for free expression, it was a triumph for civil rights and racial equality as well.
Bibliography
David A. Barrett , Declaratory Judgments for Libel, California Law Review 74 (1986): 847–888.
Harry Kalven, Jr. , The New York Times Case: A Note on ‘The Central Meaning of the First Amendment,’ Supreme Court Review (1964): 191–221.
Rodney A. Smolla , Suing the Press (1986).
Geoffrey R. Stone
