The First Amendment, specifically freedom of speech, has been highly regarded in the U.S. legal system for hundreds of years. In response to limitations placed on publishers in England, the Founders wanted to protect the press from government interference.
However, it's not surprising that a free debate tends to ruffle a few feathers. Over the years, the Supreme Court of the United States weighed the competing interests of free speech and freedom of the press against the individual right to protect their reputation. And in 1964, the New York Times asked the court to decide whether public figures should face a higher burden of proof when they bring a claim of defamation.
In a unanimous decision written by Justice William Brennan, Jr., the U.S. Supreme Court ruled in favor of the New York Times - finding that public figures face a higher standard for proving libel (a type of defamation). Times v. Sullivan is widely seen as one of the most important Supreme Court decisions of the 20th century and an essential pillar of protection for the free press.
Holding: A public figure bringing a libel claim must show the defendant knew the statement was false or that they released the information with reckless disregard for its accuracy.
What's the Difference Between Defamation, Libel, and Slander?
Defamation is a civil tort claim that covers statements that damage someone's reputation. Libel and slander are different types of defamation. Written statements trigger a libel claim, while spoken statements are slander. Defamation cases tend to run directly against constitutional protections like the freedom of expression and freedom of the press, so they are often very tough for a petitioner to win.
Learn more about the basics of libel, slander, and defamation law on FindLaw's Learn About the Law.
New York Times Co. v. Sullivan
Background of the Case
In the 1960s, Alabama law classified publications that brought a person "into public contempt" or injured their reputation as "libelous per se." This broad definition meant the only defense against a libel claim was convincing a jury that everything said in a given publication was true.
During the civil rights movement, the New York Times ran a full-page advertisement (sometimes called an “advertorial") entitled “Heed Their Rising Voices." The ad openly criticized the Montgomery, Alabama, police department for its handling of civil rights protests. It was paid for by a group of local clergymen who called themselves the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South." The ad aimed to highlight injustices suffered by student protestors and gather donations for Martin Luther King, Jr.'s legal defense.
“[T]hey are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom."
Most of the claims included in the ad accurately depicted what African American student protestors experienced in Montgomery. But it also included a few factual inaccuracies.
L.B. Sullivan, a Montgomery city commissioner, was not mentioned in the ad. However, as the head of the city's public safety agencies, he felt that the publication's criticism of people who worked for him (namely the police) was damaging to his reputation. He pointed to two specific passages of the advertisement, claiming their inaccuracy amounted to libel.
The first disputed paragraph claimed that nine students had been expelled for leading a protest at the state capitol and that the entire student body protested the expulsion by refusing to register for classes. However, the students faced expulsion over a dining counter sit-in at the Montgomery County courthouse on a different day. Most (but not all) of the student body protested by boycotting classes for a single day.
The other allegedly libelous section of the ad read, “Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times...and now they have charged him with 'perjury' - a felony under which they could imprison him for ten years."
Sullivan argued that Martin Luther King, Jr. had been arrested four times, not seven; further, the police were not implicated in the bombings at Dr. King's home. He demanded that the newspaper retract the ad for these inaccuracies. But the New York Times refused, responding that they were “somewhat puzzled as to how you think the statements in any way reflect on you."
Sullivan sued, and a Montgomery jury found that the advertorial's inaccuracies harmed his reputation. The jury awarded Sullivan $500,000, but the Times appealed the case to the Supreme Court. Sensing that the case would likely significantly impact constitutional law, the Supreme Court granted certiorari in 1963.
Opinion of the Supreme Court
As mentioned above, the Supreme Court in Sullivan established a new rule for defamation cases involving public figures. Essentially, a public figure plaintiff doesn't only have to prove that the things written about them were untrue and damaged their reputation. They also have to show that the person who wrote them knew the statements were untrue but published them anyway.
Before setting out its new rule on libel, the Supreme Court discussed the history of First Amendment rights, concluding that “debate on public issues should be uninhibited, robust, and wide-open." Against that backdrop, the court held that the First Amendment is more important than a public official's reputation, even if there are “half-truths" or “misinformation" involved.
According to the court, factual error fails to meet the threshold of defamation in the United States and always has. This idea dates back to backlash against the passage of the Sedition Act in 1798, which made it a crime to publish any false information about public officials with the intent to tarnish their reputation. The Act came under fire from many prominent political figures, including Thomas Jefferson and James Madison. The Sedition Act expired after only two years in effect because it was immensely unpopular.
In Sullivan, the court concluded that requiring writers or publishers to defend their expression point by point and prove its truth was too high a burden: “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions - and to do so on pain of libel judgments virtually unlimited in amount - leads to a comparable 'self-censorship.'“
National discussions on important issues require “breathing space," Brennan wrote. And sometimes that means statements might be made that are not 100% accurate.
Therefore, the court held that an official can only recover damages for defamation if they prove “the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
The majority also overruled the lower court's conclusion that the average person could connect the advertisement to Sullivan even though it didn't name him. “For good reason," Justice Brennan wrote, “no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." The majority feared that if Sullivan won, it would turn all criticism of government into personal criticism that could be met with a defamation claim.
In a concurring opinion, Justice Hugo Black came to the same conclusion as the majority, but for a slightly different reason. “An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment," he wrote. He argued that the First and Fourteenth Amendments completely prohibit states from awarding damages to public officials based on criticism of their public conduct.
Justice Black also highlighted the importance of the case. He wrote that the half-million-dollar verdict awarded by the Montgomery jury showed state laws like Alabama's libel law “threaten the very existence of an American press virile enough to publish unpopular views on public affairs."
Later Developments in Defamation Law
What Does "Actual Malice" Mean?
"Actual malice" means something slightly different in the context of libel versus other areas of law, such as criminal law. In the Sullivan opinion, Justice Brennan sided with the New York Times' argument that the advertisement was “substantially correct." Further, he pointed to the fact that the Times responded to Sullivan asking for more information and seemed genuinely surprised that Sullivan thought the ad reflected poorly on him. The Supreme Court of Alabama agreed with Sullivan that readers could easily connect allegations about police to his position as police commissioner. But the majority in Sullivan believed that wasn't enough to support his libel action.
However, in his concurrence, Justice Black wrote that malice "is an elusive, abstract concept, hard to prove and hard to disprove." He argued that the judgment against the Times should have been reversed solely on the idea that the newspaper had an "absolute, unconditional constitutional right" to publish criticism of public officials.
In Hustler v. Falwell, the court clarified this definition somewhat. The 1988 decision in Falwell dealt with a parody advertisement that portrayed a nationally known minister as having a drunken incestuous encounter with his mother. In that case, the Supreme Court sided with Hustler magazine and upheld the actual malice standard from New York Times Company v. Sullivan, adding that even “patently offensive speech" was protected by the First Amendment as long as the speech could not reasonably be construed as stating actual facts. The Falwell court also noted that the New York Times decision emphasizes the knowledge/recklessness aspect of actual malice more than the falsity of a statement or a disregard for the truth.
Other Public Figures
In later cases, the Supreme Court extended the actual malice standard laid out in Times v. Sullivan to other public figures, such as celebrities. In Gertz v. Robert Welch, Inc (1974), the court ruled that two types of public figures exist outside of those who work in government. “All-purpose" public figures are people who achieve “pervasive fame or notoriety." Meanwhile, “limited-purpose" public figures voluntarily engage in a public controversy. Public figures in this category must meet the same actual malice standard as the one laid out in Times v. Sullivan for public officials.
On the other hand, in Time, Inc. v. Firestone, the Supreme Court provided greater protection for people who do not voluntarily place themselves in the public eye. Private individuals, including those who involuntarily end up in the public eye, do not have to prove actual malice in their libel claim.
Modern Justices Question New York Times v. Sullivan
In 2019, the Supreme Court declined to review the defamation case filed by Kathrine McKee against Bill Cosby. McKee asked the Supreme Court to review a court of appeals decision that she qualified as a public figure. In denying certiorari, Justice Clarence Thomas wrote a concurring opinion that called the New York Times opinion a policy-driven decision “masquerading as constitutional law." He argues that the court should, at some point, revisit the Times decision and allow states to pass more stringent libel laws. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm," Justice Thomas wrote.
In 2021, Justice Neil Gorsuch joined Justice Thomas's call to review the Sullivan decision. Both justices disagreed with the court's decision not to review a libel case brought by the son of an Albanian prime minister. Their dissents pointed to the explosion of misinformation and conspiracy theories seen in recent years.
Justice Thomas argued that the actual malice standard “insulate[s] those who perpetrate lies from traditional remedies like libel suits." Justice Gorsuch suggested that the actual malice standard may have made sense in the 60s when there were fewer news sources but was no longer workable.
“Large numbers of newspapers and periodicals have failed. Network news has lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that 'monetize anything that garners 'clicks'."
There's no denying that the Sullivan decision has shaped decades of law regarding defamation. And even though the standard it sets is high, it is possible for a public figure to win a defamation case under this rule. Just look at Johnny Depp. Perhaps we'll see a case similar enough to Sullivan arise and allow Justice Thomas the opportunity to overturn it. Or perhaps it will stay in place for another 60 years.