Should New York Times v. Sullivan Be Revisited? The Case For and Against

Overturn New York Times v. Sullivan, goes the thought, and the mainstream media will finally have to answer for its sins. Some conservatives hear the case name and reach for the nearest sharp object, because the New York Times is right there in the caption, and for decades that paper has been to some of us what a red cape is to a bull. I understand the appeal. I also think it is about as well thought-out as selling your house to punish the neighbors for the loud lawn mower.

Let me do this properly. First the best argument for reconsidering the rule, stated in terms its supporters would accept, including the published opinions of a Supreme Court justice who has asked the question. Then an answer in numbered points. Then a verdict. This is a serious issue, and it deserves more than a bumper sticker in either direction.

What the case held

The facts first. In March 1960, supporters of Dr. Martin Luther King Jr. bought a full-page advertisement in the New York Times, headed "Heed Their Rising Voices," that criticized the treatment of civil rights demonstrators in the South. The ad contained some factual errors, small ones in the main, about events in Montgomery, Alabama. L. B. Sullivan, a Montgomery city commissioner who oversaw the police, sued. The ad had not named him, but he argued that criticism of the police reflected on him. An Alabama jury awarded him $500,000, and the Alabama Supreme Court affirmed.

On March 9, 1964, the U.S. Supreme Court reversed, unanimously. Justice William Brennan's opinion held that a public official suing for libel over statements about his official conduct must prove "actual malice": that the statement was made with knowledge that it was false or with reckless disregard of whether it was false. The idea was that debate on public issues must be "uninhibited, robust, and wide-open," and that a rule punishing every factual error would produce self-censorship. The court also said the evidence had to meet a demanding standard, convincing clarity.

Two terms are worth pinning down. "Actual malice" is a legal term that does not mean spite or ill will. It refers only to the speaker's state of mind about the truth. And "reckless disregard" does not mean carelessness. In St. Amant v. Thompson (1968), the court said the defendant must have actually entertained serious doubts about the truth of the publication.

The best case for revisiting it

Here is the strongest version of the argument, in four points.

One, the text and history. The First Amendment says Congress shall make no law abridging freedom of speech or of the press. It says nothing about actual malice. At the time of the founding, defamation was actionable at common law, and states punished it. Justice Clarence Thomas has written that the actual-malice rule was a policy choice made by judges, not something found in the original meaning of the amendment. In a 2019 opinion concurring in the denial of review in McKee v. Cosby, he urged the court to reconsider Sullivan and the cases that followed. In 2021, in a dissent from the denial of review in Berisha v. Lawson, Thomas repeated the call, and Justice Neil Gorsuch wrote separately to raise questions as well, including whether the rule still makes sense in a media landscape very different from the one the court had in mind in 1964.

Two, reputation is a real right. Many state constitutions treat reputation as something the law should protect. Pennsylvania's, for example, lists the protection of reputation among a person's inherent rights. The common law of libel existed for a reason: a lie that destroys a good name can wreck a life, and the victim usually cannot unring the bell.

Three, the rule is nearly impossible to meet. If a public figure must show that the publisher actually knew or strongly suspected the statement was false, a story based on a sloppy investigation, a biased source or willful blindness may slip through. The critic says the rule has become a license for the press to print damaging claims with little fear of consequence, and a person smeared in public has no practical way to clear his name.

Four, the world changed. In 1964 there were a few big outlets and a lot of local papers. Today a single viral claim can reach millions in an afternoon. The argument that a lie could be left to the marketplace of ideas looks weaker when the marketplace moves at the speed of a share button. And "public figure" has stretched to include people who never asked for a public life.

That is a real argument, made by serious people. Now the answer.

The answer, in six points

1. The 1964 facts explain why the rule exists, and the danger it answered has not gone away. Sullivan was not an abstract case. Southern officials were using libel suits, with home-court juries, to punish out-of-state papers for covering the civil rights movement. The aim was to make coverage too expensive to publish. A powerful person using a friendly court to frighten critics is not an artifact of 1960. It is a permanent feature of politics. A rule that blunts that tactic is worth having whichever party has the courthouse.

2. Actual malice is demanding, but it is not a free pass. The best proof is in the cases that came right after. In Curtis Publishing Co. v. Butts and Associated Press v. Walker, decided together in 1967, the court extended the actual-malice approach to public figures who are not officials. Wally Butts, the athletic director of the University of Georgia, sued the Saturday Evening Post over a story claiming he had helped fix a football game. The court upheld his judgment, because the magazine's own conduct showed it had been reckless in running the story on thin evidence. Edwin Walker, a retired general, sued the Associated Press over its account of the riots at the University of Mississippi, and lost. One plaintiff won and one lost. That is how a standard sounds when it works: it sorts careless and reckless publishers from honest ones. And reckless means subjective doubt. A publisher who has serious doubts and publishes anyway is liable.

3. A private person gets much more protection. In Gertz v. Robert Welch, Inc. (1974), the court said that a private individual does not have to meet the actual-malice standard to recover for actual harm. States can set their own standard, as long as it is at least negligence, and punitive damages require actual malice. Note the defendant in Gertz: a magazine published by the John Birch Society, which had called a Chicago lawyer a communist-fronter. A magazine on the far right was the defendant, and the court still said a private citizen deserved more room to clear his name than a politician. The system draws a line between public life and private life that tracks how most of us think about reputation.

4. Overturning Sullivan would hurt the small speaker first. Let me explain this slowly, because it is the key. Under the old common law, in many states, a plaintiff proved that a defamatory statement was published about him, and the statement was presumed false and the damage presumed. It was the defendant who had to prove truth. Now picture a local conservative newspaper that runs a hard story on a county official. Or a church newsletter that criticizes a school board member. Or a blogger who writes about a developer with deep pockets. Each would have to open its files to a plaintiff's lawyers, fund a trial and prove every detail, sometimes before a jury in the plaintiff's hometown. Big media companies have legal departments and insurance. The small publishers who built the right's alternative press, as The Internet Broke the Gatekeepers, and the Right Was Quick to See It describes, mostly do not.

5. The people who would gain are the powerful. Who sues for libel? Officials, celebrities, executives, wealthy donors, agencies and corporations. They have money, lawyers and a reason to protect their reputations. A rule that makes suing easier benefits whoever has the most resources, whichever party they belong to. Public figures from both parties have sued news organizations over the years. In every such case the starting point is the rule discussed here. Ask yourself whether you want that rule loosened for the next occupant of every office in the land.

6. The proper reform is at the edges, not the core. A conservative who wants to fix real problems has options that do not demolish the structure. The definition of "public figure" could be tightened so that people dragged into a controversy against their will are treated as private persons. States could strengthen laws that let a person demand a prompt retraction and, if the publisher complies, limit damages. Anti-SLAPP laws, which let a defendant get a meritless suit thrown out early and recover legal fees, protect small speakers on both sides. Some scholars have proposed letting a plaintiff seek a court declaration that a statement is false, without damages. These ideas can be debated on their merits. None of them requires overruling a unanimous decision that has protected American speakers for sixty years.

The deeper principle

There is a conservative principle underneath all this: skepticism of government power, especially power that can be turned against critics. The founders knew the dangers. The Founders' Partisan Press Was Far Nastier Than Anything on Your Feed tells the story of the Sedition Act of 1798, which made it a crime to publish "false, scandalous and malicious" criticism of the government. In his opinion in Sullivan, Justice Brennan said that although the Act was never tested in the Supreme Court, the attack upon its validity had carried the day in the court of history. His point was that a libel suit by a public official over criticism of his official conduct is a close cousin of seditious libel. The more a rule lets officials punish criticism, the closer we move to the world the founders rejected.

That does not make Thomas's question illegitimate. Originalism asks what the text meant, and it is fair to ask whether the court has the text right. A conservative jurist is entitled to wonder about the doctrine's foundations. But there is a difference between asking the question and being sure of the answer. Since Sullivan, the First Amendment has been read to protect robust criticism of those in power, and I'd want to see a very persuasive argument before giving up that protection. For how to read opinions like these, see How to Read a Supreme Court Opinion Without a Law Degree and Originalism Explained for People Who Skipped Law School.

The objection to my answer, fairly stated

A critic will say I have dodged the central complaint. A person who is smeared by a false story, the critic says, does not care that the rule helps the small blogger. He cares that his name is ruined and nobody will ever be held to account. That is true, and I won't pretend the rule has no victims. Some false stories do real damage, and the person harmed gets nothing for it.

But look at what the alternative asks us to accept. A system that makes it easy to win a libel case against the press also makes it easy to win against anyone who criticizes, and it does not sort the powerful from the powerless. The better remedy for the smeared citizen is the one every conservative already believes in: a prompt correction, a right to reply, and in the worst cases a lawsuit he has a real chance of winning because the publisher acted recklessly. Butts shows such lawsuits can succeed. The honest verdict is that the rule asks the injured to bear a real burden so that everyone else can speak freely. That trade has a cost, and a free country accepts it on purpose.

What the right has to lose

Here is the practical point. The conservative media universe, from the largest outlets to the smallest blogs, makes its living commenting on public figures. Every night, somebody on the right calls a senator a liar, a bureaucrat a fraud or an executive a crook. Some of that is fair and some is not, and under the actual-malice rule, most of it is protected unless the speaker knew it was false or acted with reckless disregard. If that protection were stripped away, the right would have the most to lose of anyone, because it does the most criticizing of government and of institutions.

It is tempting to treat Sullivan as an obstacle to getting the media. But the case also stops the other side's officials, activists and billionaires from getting us. Weigh that before cheering for its demise. For the broader fight over the press, the related reading is Eight Supreme Court Cases That Explain What the First Amendment Protects.

The bottom line

• Sullivan held in 1964 that a public official suing over statements about his official conduct must prove actual malice, meaning knowledge of falsity or reckless disregard for the truth.
• Justice Thomas, and in 2021 Justice Gorsuch, have asked the court to reconsider it. That is a legitimate legal question, and anyone who dismisses it out of hand has not read the opinions.
• Overturning the rule would hit small publishers, bloggers and local papers hardest, and it would favor whoever has the deepest pockets, on either side.
• Better reforms exist: a tighter definition of public figure, strong anti-SLAPP laws, retraction rules and declaratory judgments of falsity.
• Before you cheer for the end of the rule, picture the next person who might be able to use it against you. Then decide whether the press needs less protection, or whether the powerful need less ability to sue.