George Thomas is the Wohlford Professor of American Political Institutions and Director of the Salvatori Center at Claremont McKenna College. Professor Thomas is a regular contributor to The Constitutionalist.
Dissenting from a Supreme Court order that declined to take up a case, Justice Neil Gorsuch made clear he thought we would benefit from revisiting New York Times v. Sullivan. Sullivan is rightly hailed as a landmark case that captured the essence of freedom of speech and the press. Yet it was a case that did so by reframing how public officials could recover damages for libel.
Sullivan was decided in 1964. Today’s media environment is profoundly different. Have the extraordinary developments in social media since it was decided undermined “Sullivan’s original purposes”? Should the libel standards that apply to public officials apply to ordinary citizens who incidentally become “public figures”? And should standards that gave the press room to error in the name of “ensuring an informed democratic debate” be reframed to foster responsibility when publication on social media is done with a single click and “facilities the spread of disinformation”?
Revisiting this venerable decision could help translate the core purpose of the First Amendment into the radically altered media landscape of the twenty-first century, while clipping some of the precedents that while citing Sullivan have in fact strayed from its “original purposes.”
Let’s start with Sullivan. For while you may know the gist of the case in protecting freedom of the press, it has a complicated history. On its face, Sullivan is about a civil action for libel, rather than a government-imposed limitation on free speech. In 1960, the New York Times ran an ad, “Heed Their Rising Voices,” which spoke about the student civil rights movement and its non-violent demonstrations aimed at affirming the “right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.” This struggle for civil rights, the ad continued, was met with a “wave of terror” by “Southern violators of the Constitution.” The ad detailed some of the actions taken by state officials against student protesters, with a particular emphasis on actions taken to harm the Rev Dr. Martin Luther King, Jr., including bombing his home. The ad did not name a single public official.
Yet L.B. Sullivan, a Commissioner of the City of Montgomery, Alabama, who supervised the city’s police, brought a libel suit against the New York Times for running the ad. He argued that the ad referred to him—and defamed him—when it spoke of the city’s police taking action against student protestors in Montgomery. Without belaboring the details, the crucial point was that under Alabama libel laws, if there was some misstatement of facts, libel could be presumed. That is, one did not actually have to show that your reputation was damaged or that the essence of the statements against you were untrue. Remember, Sullivan had not even been named. But in the Alabama courts, Sullivan won a $500,000 judgment against the Times.
In a brilliant turn, the Supreme Court argued that if states were allowed to use such standards for libel, they could essentially insulate government officials against criticism of their official actions. Libel laws, in short, could be used to subvert the First Amendment and its promise of free speech and press. The Court held that such a move was akin to traditional laws of seditious libel—that is, laws that punished speech that defamed the government or brought it into disrepute. To illustrate the point, the Court turned back to debates around the Sedition Act of 1798 that brought out the central meaning of the First Amendment.
The Sedition Act made it a crime to write or speak “false, scandalous and malicious” things against the government with the intent to defame it or bring it into contempt or disrepute. The Adams administration used the act to silence its critics for differences of political opinions. James Madison argued that the Sedition Act was profoundly at odds with the freedom of speech and press required by popular government where the people must be free to criticize public officials and, based on their political opinions, bring them into disrepute. Madison insisted that the act ought “to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.” The crucial point for Madison was that the Sedition Act punished political opinion: Madison insisted, “By subjecting the truth of opinion to regulation, fine, and imprisonment, to be inflicted by those who are of a different opinion, the free range of the human mind is injuriously restrained.”
Events proved Madison right.
Consider the case of Thomas Cooper who wrote to influence the election of 1800. Cooper wrote that Adams was intent on aggrandizing executive power, which included his efforts to restrict “the liberty of speech and the liberty of the press” by multiplying “laws against libel and sedition” and attempting to enforce “doctrines of confidence in the executive.” Cooper then pointed to the public acts of Adams as proof of his political opinions, which included building the navy and a standing army by borrowing money. Cooper contrasted Adams and his actions and statements with President George Washington in a way that was unflattering to Adams: Cooper doubted Adams’s capacity to be president.
Cooper insisted on the truth of his statement. He was speaking to Adams’s pubic acts, not his personal behavior, and did so without malicious intent. The intent, rather, was to highlight political disagreement about public issues—the very essence of republican government. As Cooper put it to his jury, whether his opinions were right or wrong “I cannot help thinking they would have been better confuted by evidence and argument than by indictment.”
Justice Samuel Chase presided over Cooper’s trial. While he acknowledged the importance of elections to republican government, he nevertheless insisted that once the government was in power the minority must “surrender up their judgment.” Chase went so far as to argue that “private opinion must give way to public judgment, or there must be the end of government.” Only those whom the nation has chosen by way of elections may weigh in on such questions. To persistently criticize the government with the improper motives of influencing the public against it was unacceptable. As Chase charged the jury in Cooper’s case: criticism of President Adams “made with the intent to bring the President into contempt and disrepute, and excite against him the hatred of the people” was properly punished by the Sedition Act because it was not constitutionally protected speech. It did not matter that Cooper might think his opinions true, once the government was in power it was not Cooper’s place to shape the public mind against it; it was his place to acquiesce. Cooper was in no place to second-guess the elected president of the United States. To do so was seditious libel punishable with imprisonment. The jury found Cooper guilty and Chase fined him $400 and imprisoned him for six months for his criticism of Adams.
Cooper’s case was not unique. The Adams administration used the Sedition Act to silence opposition to the government in power. The administration’s critics were not being prosecuted for false statements of fact. Nor were they being prosecuted for slander and libel as we now think of it; that is, telling willful falsehoods about public figures. These were not lies. This was not fake news. Those prosecuted under the act pointed to generally agreed upon facts but deduced from those facts that President Adams was unfit for the presidency; that his policies undermined republican government. There were no lies or falsehoods, but an unconstitutional effort on the part of the government to silence its critics for their political opinions.
Madison insisted that this was a perversion of popular government. The “nature of governments elective, limited, and responsible, in all their branches, may well be supposed to require a greater freedom of animadversion than might be tolerated” in other forms of government. But that was because in “the United States the executive magistrates are not held to be infallible, nor the Legislatures to be omnipotent; and both elective, are both responsible.” Public criticism of public officials is essential to holding them responsible.
Justice William Brennan seized on this point in his Sullivan opinion. Brennan showed how Alabama’s civil libel laws were being used in a similar manner. To be sure, this was civil liability, not criminal punishment, so it was damages being awarded not fines being levied or jailtime being imposed. But, even so, damages could be used to silence critics of public officials for their public acts. As Justice Elena Kagan put it in an article about Sullivan when she was still a law professor, “The complaints may have charged ‘defamation,’ but the underlying reality was a governmental suppression of critical speech.”
Sullivan claimed that not only did the ad, without naming him, refer to him and damage his reputation, but that his reputation was further damaged by falsehoods in the ad. The ad did have several inaccuracies, but they were all minor. The important point is that under Alabama law, Sullivan, even though a public official, did not have to show that the ad was aimed at him, that it made false statements about him, or that it harmed his reputation. Much like the Sedition Act, Alabama libel law insulated public officials from public criticism.
Yet in democracy, the Sullivan Court held, public officials must be subject to public criticism, criticism that may well bring them into disrepute, that may defame them based on differences of political opinions as Madison argued in 1800.
In the Sullivan decision, the Court attempted to craft a rule that would protect freedom of speech and the press, acknowledging that democratic debate would have to allow for some potential misstatements of fact. As Justice Brennan argued: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that 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.”
Does Sullivan still serve this purpose in a radically altered media environment? And is its extension beyond public officials, who were at the core of Sullivan, justified?
Gorsuch’s dissent asked whether Sullivan’s “actual malice” standard was adding to disinformation in 2021: “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
When it comes to public officials engaged in public acts, the standard must be very high to protect freedom of speech. That is the very core of the First Amendment and libel laws cannot be used to thwart freedom of speech and freedom of the press—speech must be allowed to defame public officials and damage their reputation. But what of ordinary Americans who in the current social media environment may become public figures even if they did not seek the spotlight?
Nearly thirty years ago, Justice Kagan asked whether the Sullivan decision, “although itself involving core political speech,” might have facilitated the rise of impoverished journalistic standards and a diminished understanding of democratic debate? This was before the profound alternations in our social media environment. Kagan’s article, cited by Justice Gorsuch, shared his central preoccupation: Does Sullivan, in our current environment, “cut against the very values underlying the decision?”
This is a fair question that would force us to translate the core concept of freedom of speech and the press into our radically different world. Addressing this issue is not only central to the future of free speech, but perhaps to the future of constitutional government.