When the Supreme Court ruled in 1964 that news organizations need no longer fear ruinous libel judgments over small, inadvertent errors, it sparked an explosion of investigative reporting. A direct line connects the court’s decision in New York Times v. Sullivan — inevitably described as a “landmark” — and journalism that exposes government secrecy and corruption at the national, state and local levels.
Under Times v. Sullivan, a public official who sues for libel must show that a defamatory statement was made with “actual malice,” a term of art that means the statement was published “with knowledge of its falsity or with reckless disregard of whether it was true or false.” Later rulings extended actual malice to public figures.
(HarperCollins)
But though Times v. Sullivan freed the press to uncover government lying in the Vietnam War and the Watergate scandal, the backlash began almost immediately. That backlash is the subject of a new book by New York Times reporter David Enrich called “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.”
“Murder the Truth” also prompts a look back at two earlier books that examine the historical and legal significance of the Sullivan decision — “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan” (2023), by Samantha Barbas, and “Make No Law: The Sullivan Case and the First Amendment” (1991), by Anthony Lewis. It is Enrich’s book, though, that speaks to the urgency of this calamitous moment, as well as the fate of the free press during President Donald Trump’s second term.
According to Enrich, the backlash against libel protections has proceeded along two paths. The first path was trod by lawyers who wielded lawsuits despite Sullivan’s clear protections, pursuing endless delays and appeals in order to harass local journalists who lacked the wherewithal to defend themselves. Those tactics have often shut down investigations and serve as a warning to news organizations as to what might await them should they seek to hold the powerful to account.
The second path has been laid out by Supreme Court Justices Clarence Thomas, who would overturn Sullivan in its entirety, and Neil Gorsuch, who would scale it back. Sullivan appears to be in no immediate danger; Justice Brett Kavanaugh, who might be regarded as a likely ally, signaled in a recent decision that he wasn’t prepared to go along. But with lawyers for celebrity libel plaintiffs such as Sarah Palin continuing to probe for weaknesses, and with Trump back in the White House, Enrich warns that the president’s longstanding threat to “open up our libel laws” needs to be taken seriously.
“This book is the story of a largely under-the-radar legal movement that is weaponizing the obscure field of libel law — a campaign whose growing momentum has closely tracked the country’s increasing flirtations with authoritarianism,” Enrich writes.
Enrich introduces us to lawyers like Rod Smolla, Charles Harder and Libby Locke, who have sought to weaken legal protections for the press and kill critical reporting on behalf of their well-heeled clients, including a politically connected Albanian businessman, Russian oligarchs, development companies and the like.
The apex of this campaign was professional wrestler Hulk Hogan’s lawsuit against the digital news outlet Gawker, which brought together right-wing interests, money and secrecy in a manner whose reverberations are still being felt. Hogan sued Gawker for publishing a video of him having sex — an invasion-of-privacy suit rather than a libel case, but it established Harder’s reputation as an anti-press lawyer not to be trifled with. And it was financed by the right-wing venture capitalist Peter Thiel, whose role was not initially disclosed, a factor that led Gawker down the road to defeat and oblivion.
“Not realizing that Hogan was endowed with essentially infinite resources,” Enrich writes, “the site’s lawyers set out to chisel him down with endless motions and appeals. ‘It was obvious they were trying to bankrupt him through the litigation process,’ Harder told me. ‘What they didn’t realize is they were bankrupting themselves.’”
While this was playing out, challenges to the Sullivan standard itself were proceeding on a parallel track. It didn’t happen overnight. In the first several decades after the Supreme Court’s decision, support for Sullivan was widespread and bipartisan, endorsed by conservative luminaries such as Ken Starr, Robert Bork, Jeff Sessions and Stephen Miller.
But as Enrich tells it, the seeds of the revolt against Sullivan were planted in Clarence Thomas’ confirmation hearings in 1991, when he was accused of sexual harassment by Anita Hill, a lawyer who had worked for him in the federal government. Though Thomas was ultimately, if barely, confirmed, he came away from the experience with a burning hatred for the press.
Egged on by Laurence Silberman, a federal appeals court judge as well as Thomas’ mentor, that hatred burst into the open in 2019, when Thomas urged his colleagues to vacate Times v. Sullivan and return libel law to the states. Thomas was later joined by Gorsuch, whose reasoning — based in large measure on a flawed academic article — was narrower but who may represent a more ominous threat, Enrich argues, because he is “perceived as a bit more of a moderate.”
The Sullivan standard has been cracked, and now a bevy of right-wing lawyers and activists are attempting to widen that crack. Indeed, Palin’s lawyers, knowing it was unlikely that they would be able to prove actual malice in her suit against The New York Times, stated explicitly that their ultimate goal was to bring about the end of Times v. Sullivan. Palin lost, but the verdict was overturned on appeal because of an error by the trial judge. And so her quest continues, on and on, which, after all, is the point.
Taking libel law out of the hands of the states
The reason that the Supreme Court took libel law out of the hands of the states and subjected it to First Amendment scrutiny was because racist white officials in Southern states were wielding it as a weapon to intimidate the Northern press during the civil-rights era.
(University of California Press)
That history is discussed in detail by Barbas, a University of Iowa law professor, in “Actual Malice.” Named by The New Yorker as one of the best books of 2023, it brings to life the lawsuit brought by L.B. Sullivan, a city commissioner in Montgomery, Alabama, that bears his name. In rejecting Sullivan’s spurious claim that the Times had damaged his reputation, the Supreme Court emboldened the press and thus hastened the end of government-enforced segregation, if not of racism.
“Media coverage of civil rights protests in Selma, Alabama, in 1965, and the segregationist backlash against those protests, helped to facilitate a national consensus on civil rights that led to the passage of the Voting Rights Act of 1965,” Barbas writes.
The story of Times v. Sullivan’s roots are familiar, but Barbas’ recounting is vivid. Supporters of Dr. Martin Luther King Jr. took out a full-page ad in The New York Times in 1960 laying out the attacks against civil-rights activists in Montgomery and other Southern cities. The ad, titled “Heed Their Rising Voices,” contained several minor errors. Among other things, the police in Montgomery had not padlocked Black students in the dining hall at Alabama State College “in an attempt to starve them into submission.” That was hyperbole. King had not been arrested seven times on trumped-up charges; the actual tally was four.
For these small mistakes, which did nothing to distort the reality of racist violence in the South, the Times was sued by Sullivan, who was responsible for police operations in Montgomery. He claimed his reputation had been damaged even though he was not named in the ad and even though his supporters would hardly have been offended to learn he had dealt harshly with protesters against racism, especially Black protesters. Sullivan did, after all, have ties to the Ku Klux Klan.
Sullivan’s case was heard in the Alabama courtroom of Judge Walter Jones, an enthusiast of the Confederacy who had once been arrested for molesting a boy at the local YMCA. Those sordid details were covered up with the help of none other than Commissioner Sullivan, a favor that would be repaid in Jones’ courtroom — not that the judge needed any incentive. Under Alabama law, Sullivan only had to prove that some statements in the ad were false; or, rather, that the Times couldn’t prove they were true. Libel was presumed. It was literally an open-and-shut case, and the Times was hit with a $500,000 judgment.
The paper was simultaneously fighting a second libel suit over Harrison Salisbury’s reporting from Birmingham, the locus of violence against the Civil Rights Movement. With the Times facing libel claims that could have put it out of business, the paper’s owners and lawyers did exactly what the Southern white power structure had hoped it would do — it pulled its reporters out of Alabama, a move that drew condemnation from, among others, the journalist Nat Hentoff of The Village Voice, who accused the Times of “pusillanimous yielding to the governor of Alabama” and an “extraordinary — and shameful — display of cowardice.”
The Times was far from the only news organization to be singled out. By 1964, Barbas writes, officials in three Southern states had filed 17 libel suits against Northern news organizations, seeking some $288 million. It was within that context that the Supreme Court considered whether it should intervene in a libel case for the first time.
The decision, written by Justice William Brennan, was a triumph for both the Times and its brilliant lawyer, Herbert Wechsler. The ruling was grounded in the notion that the First Amendment must protect criticism of public officials, and that such protection must include inconsequential errors made in good faith.
Brennan memorably wrote 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.”
The decision was unanimous, though three of the nine justices would have gone even further, writing that the actual-malice standard was unnecessary and that any speech about public matters deserved protection, even falsehoods. As Justice Hugo Black wrote in his concurring opinion, “An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.”
A series of decisions expanding the First Amendment
Lewis’ “Make No Law” remains the most elegant treatment of Times v. Sullivan as well as a first-rate dive into the legal and constitutional issues at play. Lewis, who died in 2013, was The New York Times’ Supreme Court reporter and, later, a columnist.
(Penguin Random House)
Unlike Enrich and Barbas, Lewis did not have to contend with the possibility that characters like Donald Trump, Clarence Thomas and Neil Gorsuch would try to tear down Sullivan’s wall, leaving him free to concentrate on the inside story of how the decision came about.
Given the current climate, I was struck by Lewis’ assertion that the Times simply did not settle libel claims. “Libel suits had not been a serious problem for The New York Times,” Lewis writes. “Its policy was never to settle, even for trivial sums, lest it encourage nuisance suits.” It’s a stance that has served the Times well over the years, and it contrasts with recent decisions by major media organizations like ABC News, Meta and CBS News to settle or consider settling dubious suits brought by Trump.
Lewis provides a historical overview of free speech dating back to the mid-17th century. Starting in the early 20th century, Lewis observes, the Supreme Court began issuing a series of decisions expanding the First Amendment, led by Justices Oliver Wendell Holmes Jr. and Louis Brandeis. Seen in that light, the Times v. Sullivan decision was the culmination of a long process aimed at eliminating the concept of “seditious libel” — that is, criticism of the government.
At one time, Lewis writes, seditious libel was considered such a serious offense that it was said that “the greater the truth, the greater the libel,” since truthful criticism would presumably be more effective in harming officialdom than falsehoods. Eventually, truth became a defense against libel actions, though Lewis writes that the government often gets to define what is true, as was surely the case in Judge Jones’ kangaroo courtroom.
In “Make No Law,” Lewis provides a close-up look at how Brennan and the other justices interacted, revising, debating and cajoling, until Brennan finally articulated the actual-malice standard. Lewis also shows how that came about by reproducing the first draft of Brennan’s opinion and explaining how it changed over the course of repeated exchanges and negotiations with his colleagues.
“Justice Brennan’s opinion took the libertarian arguments of Brandeis, Holmes and others and wove the threads into the first full statement by the Supreme Court as a whole of an American theory of free speech: the Madisonian theory,” Lewis writes, observing that Brennan affirmed that freedom to criticize the government is “the central meaning of the First Amendment.” So sweeping was Brennan’s decision, Lewis notes, that he even ruled that the Sedition Act of 1798, John Adams’ reviled attempt to silence his critics, was unconstitutional as well.
The decade or so following Times v. Sullivan might be described as the heroic period for the press. Journalism was seen as crucial in speaking truth to power, with aspiring reporters imagining themselves as their community’s Woodward and Bernstein.
But then a long, slow decline set in. The economics of news collapsed and, with it, public trust in the media. In trying to explain why it matters that the press should enjoy strong libel protections, even the right to make mistakes, journalists risk sounding like just another special-interest group.
It is that backdrop that explains why the threats described by David Enrich in “Murder the Truth” are so resonant. The question is whether we can hang on long enough for the tide to turn — or if it will.
Dan Kennedy is a professor of journalism at Northeastern University and the author of the blog Media Nation. He is the co-author, with Ellen Clegg, of “What Works in Community News: Media Startups, News Deserts, and the Future of the Fourth Estate.”
