COMMENTARY

Times vs. Sullivan leaves lasting mark on media

50 years ago, Supreme Court set ‘actual malice’ as standard for libel cases

3/9/2014

Byers

Fifty years ago Lyndon Johnson began the War on Poverty and proclaimed his vision for a Great Society, civil rights workers were killed in Mississippi during Freedom Summer, and the Gulf of Tonkin Resolution paved the way toward steep troop escalations in Southeast Asia. But the event of 1964 that allowed Americans to acquire a deeper understanding of all these events — and of the dramatic events that followed in Vietnam and Watergate — was a decision rendered in the whispery confines of the chambers of the Supreme Court.

A half-century ago today the justices issued their unanimous ruling in New York Times vs. Sullivan. The thumbnail interpretation of this decision — that “actual malice” is the standard in libel cases — triggered a tremor in legal offices, judicial chambers, and newsrooms from coast to coast.

Fifty years on, we now see that the significance of the decision was its establishment of a single national standard in libel cases, one that frees the press to do the job the Constitution entrusts to it and protects the press against individual state incursions on press freedoms, a prospect that again seems realistic in the contemporary political setting.

Today we take for granted the vigorous press this decision produced and preserved. Nationally, it permitted the Washington Post to conduct its landmark Watergate investigation. On a regional level, it has permitted newspapers like The Blade to uncover the city’s involvement in creating incentives for overseas investments in Toledo’s downtown and for the Pittsburgh Post-Gazette to prepare a ground-breaking series of stories examining in detail the pinions of power and influence in Pittsburgh — both prepared and published without fear that arcane libel laws designed to protect the King and Church of England from critics would be applied to us, punishing our daring and silencing our writers.

We are the executive editor of the Post-Gazette and the outside newsroom counsel of The Blade and Post-Gazette and, far from Washington and the great dramas of war and national politics, we are the daily beneficiaries of this ruling.

The Sullivan decision grew out of an Alabama case in which the state establishment sought to punish a northern paper for commenting on the civil rights movement. It put to rest the long-smoldering idea of seditious libel, the notion that a statement could defame a government, and ended the threat posed by a wave of similar suits across the South, accounting for $300 million in possible damage claims and raising the prospect newspapers would be cowered into not covering the civil-rights movement.

Until 1964, the assumption was that, as the Alabama Supreme Court put it in its decision that triggered the high court’s review, “the First Amendment does not protect libelous publications.” The dangerous result: States could handle libel as they wish.

We — an editor and his attorney — are no advocates of libelous publications. But our work is deeply affected by how courts define and apply the idea of libel.

In Sullivan, the Supreme Court placed this crucial question in the context of the broader civil aspirations that undergird the First Amendment and suffuse the Constitution. This sentence, written by Justice William J. Brennan, Jr., may be the most important 44 words in press law since James Madison drafted the First Amendment in 1789:

“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 court connected this commitment to the history of the Sedition Act of 1798, passed early in the republic but in time rejected on the ground of what the court deemed “a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.”

With this decision — often misunderstood but never minimized in importance — the court swept away the fear that routine but robust news coverage of government and of social movements might be met (and silenced) by libel suits. Otherwise, the press would have been chilled, criticism of government and of governmental officials would have been restricted, and self-censorship might have reigned in the nation’s newsrooms.

Instead, we have a yeasty press today and a legacy of courageous reporting, not only on civil rights but also on presidential power, Congress, national security, and, following the Bush vs. Gore case that settled the 2000 election, the Supreme Court itself. By creating the necessary “breathing space” for this vigorous, even querulous press, the Supreme Court altered the entire nature of libel litigation — and the public has been the winner.

David Shribman is executive editor of the Pittsburgh Post-Gazette. Fritz Byers is a First Amendment lawyer based in Toledo. Together they taught a special Harvard law school session on how an editor and a lawyer work together.