When it comes to the protection of a free and fair press, there is one landmark Supreme Court case that sits at the top, and it is New York Times Company v Sullivan (1964).
This case redefined libel in the United States and is cited in almost every defamation suit since, but its origin is in the Civil Rights Movement, when newspapers were sued to the brink of collapse for covering protests in the south.
Taking us through libel, defamation, and "actual malice" are Ang Reidell, Director of Outreach and Curriculum at the Annenberg Public Policy Center, and Samantha Barbas, professor at the Iowa College of Law and author of Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan.
Click here to watch a fantastic documentary from Annenberg on the case.
Quick note to teachers! Our guests are collaborating today! The first fifty teachers who join the Civics Renewal Network will receive a free copy of Samantha Barbas's book, click here to sign up and get yours today!
Transcript
Note: this transcript is AI-generated and may contain errors
times v sullivan d1_mixdown.mp3
Nick Capodice: Hannah. You saw this in? What was it? Fourth grade.
Hannah McCarthy: Third or fourth? Yeah.
Nick Capodice: I know you were eight, but can you describe what you saw?
Hannah McCarthy: Yeah. This is footage from a civil rights protest in Birmingham, Alabama, in, I think, the early 60s. Students were marching to protest segregation in their city. They were marching peacefully. A thousand kids walking from a church, holding hands, singing. The police told them [00:00:30] to disperse. The kids did not. And the police sprayed the children with fire hoses. They set dogs on them.
Nick Capodice: And what had seeing that so young do to you?
Hannah McCarthy: Uh, it made me sick. I think I was just sitting there slackjawed. I was watching something where there was no political middle. This is, you know, right and wrong, right in front of your eyes. [00:01:00] It was unjustifiable. Violence. It was. It was just pure ugliness.
Nick Capodice: That's the thing that strikes me when I watch footage from civil rights protests. It's it's that it's consistent. Right? It is almost always a black person being hurt, dragged, hit with a fist or a baton, and almost always it is a white hand doing the hurting. When you see an evil like this, when it is filmed and broadcast into your home in 1963, you're forced [00:01:30] to ask, whose side am I on? And that is what this episode is about.
Archival: But, you know, the Sullivan Standard has been a target for conservatives for quite some time, and there's a lot of momentum behind it now.
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today's episode is about one of the most important Supreme Court cases in US history. It is a case directly tied to the work you and I do as journalists, and [00:02:00] it is the strongest protection of that work we are talking about. New York Times v Sullivan, 1964.
Hannah McCarthy: So we've talked about this case in other episodes, but when I think of times v Sullivan, I always think about words like defamation, freedom of the press, libel. I don't immediately connect it to the civil rights movement.
Nick Capodice: Yeah. Me neither. And we are going to explain all those terms. But to your point, I usually think of the ramifications of this case, not [00:02:30] what this case was about.
Hannah McCarthy: What was it about? When did it start?
Samantha Barbas: The short story is that a police commissioner named L.B. Sullivan sued the New York Times and some civil rights leaders in 1960.
Ang Reidell: There's all this stuff going on in the background related to the civil rights movement. Right. But the main thing that the case was focusing on was this piece in The New York Times. Now. The piece ran in other newspapers [00:03:00] too, but it was an ad called Heed Their Rising Voices.
Samantha Barbas: My name is Samantha Barbas, and I'm a professor of law at the University of Iowa College of Law.
Ang Reidell: I'm Angela Vidal. I'm the director of outreach and curriculum at the Leonore Annenberg Institute for civics, and I facilitate the Civics Renewal Network. Feel free to cut part of that title.
Nick Capodice: I refuse to cut part of that title, Ange. So, Hannah, we often share [00:03:30] extra resources tied to our episodes, but I'm gonna beseech our listeners to check two out if they have any interest in this case whatsoever. The first is Samantha Barbusse's book, Actual Malice, and the other is a tremendous 30 minute documentary that Android team at Annenberg put out. There are links to both of those in the show. Notes.
Hannah McCarthy: And getting back to the civil rights protests, this was an ad in the New York Times.
Nick Capodice: Yeah, it was it was from May 1960.
Hannah McCarthy: When I think about press coverage of the civil rights movement, that [00:04:00] made a big impact. An ad in the paper isn't necessarily what springs to mind.
Nick Capodice: Yeah, you're correct there there was a ton of coverage in the South. There were press from many papers and broadcasting entities. They had journalists in the South covering these protests, and this coverage was changing people's minds.
Ang Reidell: People were seeing the hoses on the students. They were seeing dogs being sicked on people. Once people could see those images, [00:04:30] these really disturbing images, they knew something had to change. There was a whole network in the South who wanted to keep this system of segregation. If the press was coming in and showing what was happening, they thought that put them in a bad light. And so they wanted to push back using whatever methods they could. They were already using violence, but then legal methods against the press as well.
Nick Capodice: Southern politicians who opposed desegregation, [00:05:00] they seized upon this as a strategy. They saw that if the press continued to cover this brutalization of peaceful protesters, the only solution was to remove the press and you remove them by suing them into oblivion.
Hannah McCarthy: Was there more than one paper sued?
Nick Capodice: Yes. Many more. Sullivan sued the New York Times for $500,000, but that was just the tip of the iceberg.
Samantha Barbas: So The New York Times was sued for about $12 [00:05:30] million over that. Advertisement. So there were at least 6 or 7 lawsuits brought just over that publication. But then the southern officials sued the Saturday Evening Post, The Washington Post, Chicago Tribune, all of these other media outlets so that by the time the Sullivan case got to the Supreme Court in 1963, there were about $300 million dollars worth of potential judgments in the works here. So this was, [00:06:00] in fact, a concerted conspiracy that could have crushed the press.
Hannah McCarthy: What were the grounds for the lawsuit? I mean, the press have a right to be the press report, the news. It is a protection in the First Amendment.
Nick Capodice: It is. But now we are getting into our first legal definition, and that is libel. Libel is something that is written and published that defames someone. It hurts their reputation. And libel is not protected [00:06:30] under the First Amendment.
Hannah McCarthy: Is libel only libel because it's not true? What's the distinction?
Nick Capodice: Well, if we go back a good stretch, Hannah, whether something was true or not was utterly irrelevant.
Hannah McCarthy: I know what that song means.
Nick Capodice: You sure do. We are going back to 1733 to the trial of a guy named John Peter Zenger.
Hannah McCarthy: What did John Peter Zenger do.
Nick Capodice: Zenger wrote a newspaper called the New York Weekly Journal, and at this time us not [00:07:00] yet being an independent nation, England appointed governors to the colonies, and Zenger wrote articles criticizing New York's new British governor, William Cosby, so Cosby wanted a chunk of the salary from the former governor at the court ruled against him, and in an act of retribution, he fired the chief justice of the New York Supreme Court, Lewis Morris.
Speaker6: New York abstains courteously, and Cosby.
Nick Capodice: Said that Zenger's articles damaged his reputation, [00:07:30] and Zenger was put in jail.
Hannah McCarthy: But Zenger's articles were not lies.
Nick Capodice: No they weren't. They were critical, but they didn't have any falsehoods. But at that time, under British law, anything that damaged a reputation was considered libel.
Hannah McCarthy: And what happened to Zenger? Did he go to jail?
Nick Capodice: He was gonna. At the trial, the jury was basically told, if you agree that Zenger wrote these articles, then he is guilty and he did write them. So this seemed like an open and shut [00:08:00] case. But in their findings, the jury said, yeah, he definitely wrote the articles, but we refuse to find him guilty.
Hannah McCarthy: Okay, this is jury nullification, right? Where, you know, the jury is given a set of parameters basically telling them how to make their decision. And they say we actually don't agree to those parameters. We don't agree to the rules.
Nick Capodice: Precisely. And Zenger goes free and a precedent is set if something is defamatory but can be proven to be true, it is not libel. [00:08:30] And that brings us back to 1962. The ad in the New York Times heed their rising voices.
Ang Reidell: Basically, the group supporting Martin Luther King was trying to raise funds for his legal defense. And so there was this huge effort to get people to sign on to the ad. Ads. So there were people like, um, Marlon Brando, you know, Eleanor Roosevelt, lots of people who were already in [00:09:00] the civil rights movement, Harry Belafonte, you know, entertainers, things like that.
Nick Capodice: Wow. Yeah. Nat King Cole, Sidney Poitier, Langston Hughes.
Samantha Barbas: So this advertisement listed a number of things that the southern officials had been doing to civil rights protesters, how they'd been brutalized and how they were kicked out of facilities and so forth. Uh, it turned out that this ad contained a few errors of fact. The ad said [00:09:30] that student protesters sang My Country Tis of Thee on the Capitol steps in Montgomery, when they really sang the national anthem. It said that the police had ringed a college campus when they actually lined up outside the campus. So these really minor errors of.
Ang Reidell: Fact, that's what L.B. Sullivan was suing for, and he sued The New York Times. He wasn't mentioned in the ad at all.
Hannah McCarthy: Hang on. So Sullivan wasn't even in [00:10:00] the ad, and he sued for defamation of character?
Nick Capodice: He wasn't. And he did.
Ang Reidell: I know, it's just like, how can that be? But his his legal point was that since the police in Montgomery were being named and he was the police commissioner, all that was reflecting on him and so he could sue for libel because there were small inaccuracies in that full page ad.
Nick Capodice: Now, Sullivan won [00:10:30] his case in Alabama handily, as did dozens of other people suing media outlets for covering the civil rights movement. And part of the reason he won it so easily and quickly is that the trial was in Alabama. Alabama. Judge. Alabama. Jury.
Samantha Barbas: It was obviously very biased against the New York Times and the civil rights leaders. The judge in the trial was a notorious segregationist. Um, he was [00:11:00] very, like, abusive to the civil rights leaders. Lawyers during the trial didn't allow black jurors to sit in the jury. And there were serious allegations of racial discrimination. You know, in addition to the bias against The New York Times.
Nick Capodice: So in this instance, the burden of proof was on the media outlet. They have to say that every single thing they report is true, and they have to prove it in [00:11:30] court.
Samantha Barbas: And that's very hard to do to prove the truth of something in court. And then also the law was that even if the publisher made an innocent mistake, they got something wrong just because, you know, they were careless in some minor way, they could still be liable. It's strict liability. So it's was really easy for people suing the press or other people to win defamation cases.
Nick Capodice: And again, Sullivan suing the New York Times was a drop in the bucket. These cases were happening over [00:12:00] and over, and newspapers were faced with a choice. Pull all your reporters out of the South or fold. No matter how big or well-financed they were, they could not take an endless stream of litigation.
Hannah McCarthy: So what happened?
Nick Capodice: I'm going to get to the arguments, the decision, as well as some modern day stuff going on with times v Sullivan. But we got to take a quick break.
Hannah McCarthy: But before that break, just our constant reminder that Civics 101 is made by a public radio station and you are the public. [00:12:30] Consider making a gift to support our work at our website civics101podcast.org. We're back! You're listening to Civics 101 and we are talking about the landmark Supreme Court decision New York Times v Sullivan. When we left off, the times had just lost their Alabama trial.
Nick Capodice: They did, and the New York Times appealed their case to the very top, it was argued [00:13:00] in the Supreme Court in January 1964. Here is Samantha Barbas again.
Samantha Barbas: Essentially, the lawyers for Sullivan are saying libel law has always been outside the First Amendment. That is to say, the Supreme Court had always said that libel law didn't implicate any constitutional free speech issues. And the times lawyer is saying, actually, libel law really does raise big free speech questions and that it is time for the Supreme Court to now [00:13:30] analyze libel law under the framework of the First Amendment and lists a number of reasons why it's imperative that the court take that step.
Archival: Our first proposition is that this action was judged in Alabama by an unconstitutional rule of law, the rule of law offensive to the First Amendment, an offensive on its face to the First Amendment.
Samantha Barbas: The lawyer for The New York Times was [00:14:00] a Columbia Law School professor named Herbert Wechsler, and he was quite a scholar, and he made this historical analysis. He went back to 1798, when a Sedition Act was passed in the US, and essentially that criminalized criticizing the government.
Archival: And we are actually making here in relation to this rule of law, the same argument that James Madison made [00:14:30] and that Thomas Jefferson made with respect to the validity of the Sedition Act of 1798.
Samantha Barbas: And at the time, it was generally agreed that that was totally unconstitutional, that the ability to criticize Government is the heart of the First Amendment.
Nick Capodice: And speaking to the First Amendment. Hannah, it is worth mentioning here, as we do in every episode that touches it, Supreme court cases dealing with the First Amendment were very rare. They were quite late in our history. There [00:15:00] was one famous press case called near v Minnesota, which dealt with prior restraint. Basically, the government cannot preemptively censor a newspaper for printing something they can be punished after, but they cannot be stopped from doing it.ht. So there was not a whole lot of precedent here for the court to go on. And that is why the times lawyer had to go all the way back to the Sedition Act, which was denounced by James Madison and Thomas Jefferson.
Samantha Barbas: And so Wexler, he's almost making like an originalist argument. So he says that [00:15:30] what the Alabama courts are doing is essentially punishing people for criticizing government. Right. The times is being punished because it published criticism of Sullivan. That's no different than being punished for sedition. And that goes absolutely against what the First Amendment stands for.
Hannah McCarthy: All right. Let's hear about the ruling.
Nick Capodice: Who won? The winner in this one, Hannah, is the old Gray Lady. The New York Times again. Here's Andy Riedel.
Ang Reidell: It [00:16:00] was a unanimous decision, saying that in order for there to be libel, there had to be actual malice. And that's the phrase that all the law students learn. That was a change to what had been. They were saying inadvertent mistakes can happen, and it can only be libelous if there is actual malice behind their reporting.
Samantha Barbas: Actual malice means [00:16:30] essentially knowledge of the falsity of a statement or publishing a statement with reckless disregard of the truth. So in order to show actual malice, the plaintiff has to show that the defendant either knew that the statement was untrue.
Ang Reidell: Or if they should have known or been suspicious that it wasn't true. So those are the two things. And it and it really does switch kind of the burden of proof from one side [00:17:00] to the other. The powerful people who are saying that's libel now have to prove that the press was using actual malice.
Hannah McCarthy: Was there a fallout after this ruling came down? We so often hear about a landmark ruling, let's say Brown v board or Loving v Virginia, where the Supreme Court says something and the states take, you know, a few decades to comply. But that couldn't have happened here, right? Because if someone sued you for libel and it was proven [00:17:30] that there was no actual malice, that lawsuit just wouldn't have a chance. Right.
Nick Capodice: And because it applied immediately, the media knew it was now safe to report in the South. And look, I know you got to be careful playing a game of what if when you're looking at history. But what if the court had ruled the other way? What would that have done to the civil rights movement? How would it affect, you know, journalism writ large?
Hannah McCarthy: Part of the reason we're talking about [00:18:00] this case right now is because times v Sullivan is in the headlines.
Nick Capodice: Sure is.
Archival: If we see the Wynn case, make it to the Supreme Court, and the Supreme Court decides to get rid of the New York Times versus Sullivan decision, a precedent that's been in place for 60 years. Consider it game over.
Nick Capodice: Most recently, Las Vegas casino tycoon Steve Wynn has petitioned the Supreme Court to rule on his defamation case. He sued an AP reporter in 2018 [00:18:30] who wrote about several sexual assault charges against him in the 1970s. Now Steve Wynn lost, but he is looking for an appeal. He has petitioned the Supreme Court and his petition is explicit. It says his case is asking, quote, whether this court should overturn Sullivan's actual malice standard. End quote.
Hannah McCarthy: Do we have any idea whether or not the Supreme Court has indicated any interest in taking this case?
Nick Capodice: Yes and no. The Steve Wynn case [00:19:00] seems like it won't be heard. And I say that because I read an article this morning saying that Justice Kavanaugh has been citing Sullivan as precedent on other rulings, which kind of implies this isn't a typical conservative liberal justices debate. However, two Supreme Court justices, Clarence Thomas and Neil Gorsuch, they have been vocal about a desire to revisit the decision.
Archival: And there's a lot of momentum behind it. Now. In a separate opinion, Justice Clarence Thomas, joined by Justice Neil Gorsuch, said it was [00:19:30] time to revisit the standard. So, you know, the idea is out there. And with six Supreme Court conservatives, you don't know that the rules are going to remain the way they are in 2023.
Nick Capodice: Justice Thomas wrote, quote, the court usurped control over libel law and imposed its own elevated standard. And New York Times Company v Sullivan, end quote. And also that quote, the court did not base this actual malice rule in the original meaning of the First Amendment. End quote. So it's percolating. [00:20:00] Cases are coming up. Petitions to overturn times v Sullivan have increased in the last 20 years. So is that 1964 ruling safe? We do not know.
Hannah McCarthy: All right. So, you know, I often don't like looking into the future, making predictions, etc.. But I am curious, in this case, did Ange or Samantha offer any insight into what would happen if Sullivan was overturned? They did.
Ang Reidell: Well, [00:20:30] I think, um, anytime freedom of the press is threatened, um, then there are serious fallouts because it's the press that, um, you know, are looking into the stories that of what our government is doing and informing us of that. That is what is happening in our world, in our country, in our communities.
Samantha Barbas: So I think it would become much more difficult for the press [00:21:00] to write about not only public officials, but really anybody in the news. There would be a real chilling effect. Journalists would have to really think twice before, uh, reporting on public affairs. And, you know, I think back to what things were like in the South in 1960 when it was so easy to weaponize libel suits. And I think there are many people today who would love to use libel [00:21:30] law to crush their opponents. And if Sullivan weren't in place, that would really be a possibility.
Ang Reidell: You know, it's right there in the First Amendment. So that has a huge impact on our lives by, you know what, what we can learn, how we can learn it. You know, we have the right to to that information about what our government is doing. And if the free press is not there, then there is there is a problem.
Nick Capodice: Ok, that's Times v Sullivan. Huge thanks to the folks Annenberg Classroom for helping us out, you really should see that documentary it's fascinating. This episode was made by me Nick Capodice with you Hannah McCarthy, thank you always, our staff includes producer Marina Hencke, Senior Producer Christina Phillips, and Executive Producer Rebecca Lavoie. Music in this ep from Blue Dot Sessions, Epidemic Sound, Scanglobe, Scott Gratton, Bio Unit, and the composer I wouldn't defame for a million dollars, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.