Point of View

50 years of free-speech protection

March 8, 2014 

It will be 50 years Sunday since the U.S. Supreme Court decided the most important First Amendment case in the nation’s history. New York Times v. Sullivan (1964) protects our right to discuss the integrity and competence of government officials and candidates for public office even if what we say is inaccurate and harmful to their reputation. The protection is not complete; they can still sue. But such lawsuits are very difficult to win.

It is an anniversary we should celebrate by reading Justice William Brennan’s eloquent explanation of why this safeguard is indispensable to a democratic society.

L.B. Sullivan was an elected commissioner in Montgomery, Alabama, who supervised the police department. The newspaper published a full-page ad criticizing the police and other officials for mistreating civil rights demonstrators and for bringing bogus criminal charges against Dr. Martin Luther King Jr.

The ad, which did not name Sullivan, contained minor errors. Sullivan claimed that because he oversaw the police, he had been libeled. The state court jury awarded $500,000 – the total amount Sullivan had sought.

Justice Brennan spoke for a unanimous court that overturned the jury’s award. He wrote “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 most significant and enduring element of Brennan’s opinion was the creation of the “actual malice” standard. For public officials to win a libel suit, they must prove that those writing defamatory content either knew the statement was false or recklessly disregarded whether it was false.

It did not matter whether someone else would have made the comments under the same circumstances. The key issue was whether the writer believed or should have known they were untrue. Evidence showing this is hard to obtain. The defense usually has to say nothing more than they thought it was correct.

Justice Brennan also required that public officials show actual malice with “convincing clarity,” a test that prevents many such lawsuits from going to trial.

Three years after the NYT case, the court extended actual malice to cases involving public figures, individuals who were newsworthy or who influenced civic affairs without holding elective office. But a more conservative court in Gertz v. Welch (1974) trimmed the reach of NYT by making it less likely someone would be considered a public figure and allowing private persons to win a libel suit with a much less stringent standard.

Actual malice was further weakened in Harte-Hanks v. Connaughton (1989) when the court held that even if communicators believed the statements were truthful, they could still be held accountable if they failed to examine available information that would have shown what they were about to publish was wrong.

NYT was decided long before the Internet was developed, and it has been challenging to apply libel standards to cases involving new technology. People often make damaging statements in a website or blog while concealing their identity. Even if we know who they are, it is expensive to bring a lawsuit in a distant jurisdiction, and the perpetrator likely won’t have money to pay a judgment. Meanwhile, the injurious material remains searchable for years.

Congress worried that the Internet would not prosper if those hosting websites or providing access could be sued for defamatory comments posted by others, so in 1996 it granted immunity from libel suits to those who published but did not create such statements. That often means there is no practical way to be compensated for the harm suffered.

Despite the actual malice standard, public officials and public figures do win libel suits. But for half a century, the NYT case has been a landmark defending our right to vigorously debate public issues without being dragged into court.

The NYT ruling does not offer total protection, nor should it. But without that historic case, we would not have the First Amendment rights so many of us take for granted.

Richard Labunski of Hendersonville is a journalism professor at the University of Kentucky and author of “James Madison and the Struggle for the Bill of Rights.”

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