In 1964, the U.S. Supreme Court ruled that our First Amendment right to freedom of speech limited the ability of public officials to sue for defamation. It set a lasting precedent that provides important protections for journalists. That precedent is increasingly under threat.
The court ruled that, to win a libel lawsuit, a public official would have to prove “actual malice,” meaning that there was a reckless disregard for the truth. The landmark case stemmed from a full-page ad a civil rights group had placed in The New York Times that criticized Alabama officials over how they treated civil rights protesters. The police commissioner at the time, L.B. Sullivan, sued the Times for libel and the case went to the Supreme Court.
The full and dramatic story behind New York Times v. Sullivan is told in a new book by Samantha Barbas, a professor of law at the University of Buffalo School of Law and the director of the Baldy Center for Law and Social Policy. “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan” unspools the saga, with archives of the New York Times Company and the background of the turbulent 1960s.
New York Times v. Sullivan provides protections that shield journalists today, but some public officials would rather see it struck down. Florida Gov. Ron DeSantis, for example, wants the court to revisit the 1964 ruling. The Miami Herald reported that Florida lawmakers are pushing legislation “that would make it easier to sue media outlets for allegations of defamation and make it harder for journalists to do their jobs by undermining the use of unnamed sources.”
Barbas, also a legal historian who has written several previous books on First Amendment law and media law topics, spoke with Poynter recently about her new book and what’s at stake for journalism if New York Times v. Sullivan is ever overruled, like Roe v. Wade was.
This interview has been edited for clarity and brevity.
What compelled you to tell the dramatic story behind New York Times v. Sullivan?
I had long been aware that New York Times v. Sullivan was really the most important First Amendment case in history, so I was curious about it and really wanted to tell the story of it. As I began to do the research, I found that there was a lot about Sullivan — the lawsuit — that had not been told in previous accounts. So I really wanted to bring that to light.
And it turned out that the Sullivan case actually became more newsworthy and timely as I was writing the book. I started the book a few years ago, and then just in the past couple of years, we’ve seen so much in the way of criticism of Sullivan and these attempts to roll back the protections of Sullivan.
In your introduction, you write that damaging falsehoods can be spread online with a lick, and reputations destroyed immediately, and how these experiences have cast doubt on “uninhibited and robust discourse.” Further, how critics have called for the overruling of Sullivan. If Sullivan falls, what do you think would happen to journalism in the United States?
I think that any alteration to the Sullivan line of cases would have significant impacts on journalism. And when I say Sullivan line of cases, I mean not only New York Times v. Sullivan, but the Supreme Court cases which apply the actual malice rule to public figures. Sullivan deals only with public officials. So I think if any of that line of cases were to be changed, it would really make it more difficult for a journalist to report on public affairs, on public officials. It would really make it riskier for a reporter to write about a public figure who was litigious, who was controversial, and who might try to fight back against criticism with a lawsuit. I really do think that it would have a chilling effect on the press.
That chilling effect could make journalists think twice before pursuing a story or an angle, which hurts us all, right? Because the public deserves to know. There’s so much that we don’t know, and journalists (especially local reporters on the ground) help us stay informed.
I think that’s exactly right. You were saying how the Sullivan decision protects not only the press, but it protects the public’s ability to be able to get this news and information, and the ability of ordinary citizens to even be able to have conversations about public officials and controversial issues. So really, Sullivan protects all speakers.
Samantha Barbas is a professor of law at the University of Buffalo School of Law and the director of the Baldy Center for Law and Social Policy. Barbas is also the author of the new book, “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan.” (Author photo courtesy of Kristina Lively. Book cover courtesy of UC Press)
If Sullivan were to fall, where do you think that challenge would come from? Are there particular states or politicians who seem slated to bring it to the Supreme Court level?
There has been, I would say, in the past five or so years, this conservative movement to get the Supreme Court to overrule Sullivan and related cases. There have been various attempts through lawsuits and litigation to get a case up before the court. You mentioned the recent Florida proposals, which are really extraordinary in their efforts to do away with the protections of Sullivan. And I think part of the intention with these bills is to kind of queue up a case to get before the Supreme Court that would invite it to reconsider Sullivan. So what’s happening in Florida could represent a direct challenge to Sullivan.
As a former newspaper reporter, when I would report on sticky local government stories or deal with public officials flailing and not wanting to be upfront about something, I often relied on “freedom of the press” in the back of my mind. I always knew I could rely on this as I searched for the truth. As you worked on this book, what did you learn about how important this right is for journalists?
I tell this story of how libel law could be weaponized before 1964. The Sullivan case involved a segregationist official who sued The New York Times over some statements that were essentially true, but that criticized him. I describe how Sullivan’s lawsuit was part of this concerted campaign. It was actually like a conspiracy on the part of all these Southern officials to try to sue The New York Times out of existence using libel law.
I think that if the Supreme Court hadn’t ruled in favor of The New York Times, we could have politicians getting together and suing a disfavored publication out of existence just because they don’t like its politics or what it said about them. So Sullivan is absolutely critical to protecting the right of journalists to do investigative reporting, to report on government corruption, to hold officials accountable. It’s absolutely critical.
Was there anything surprising you learned while working on this book? Did you learn anything new about the Sullivan case?
I tried to emphasize in the book the importance of a New York Times v. Sullivan for both freedom of the press and the civil rights movement. The Sullivan case comes out of the conflict over civil rights in the South in the early 1960s. The segregationists were trying to use libel law not just to shut down the press, but also to stop the civil rights movement. They knew that the civil rights movement depended on the press for news coverage, and the segregationists also sued Martin Luther King Jr.’s organization — leaders of that group, the Southern Christian Leadership Conference. And so I make the argument in the book that, if the Supreme Court hadn’t ruled the way it did, not only would the press have been silenced, but also the civil rights movement might not have taken off and made as many gains as it ultimately did in the 1960s.
That’s a huge “what if.” Why is New York Times v. Sullivan especially important today?
I think what we’re seeing is a lot of politicians out there who are openly hostile to the press. They have portrayed the press as the enemy and they would love to be able to use libel law to shut down their critics in the press. And I think New York Times v. Sullivan is what prevents that kind of thing from happening. So I think Sullivan is especially important in this polarized political climate and the hostile culture that we have right now.
What are your thoughts on the state of journalism today? Do you think journalists take New York Times v. Sullivan for granted?
That’s a bit of a difficult question because I’m not a journalist. But I will say that one criticism of Sullivan that’s often raised is that journalists have purportedly abused their freedom; they have not been respecting the truth and their subjects because they feel they have this shield of New York Times vs. Sullivan. I don’t think that’s true, and again, I’m not a journalist, but it seems that there are other incentives for journalists to try to get the story right. I don’t think that the Sullivan privilege is being abused, but that is a criticism that comes out there a lot when we see these attacks on Sullivan.
