A Blog-Style Case Study by Caden Sullivan
1964’s landmark case in the US Supreme Court established protections for free speech in the media, and although some people attack the precedents set in the ruling, these precedents are still the best way to separate honest mistakes and malicious Journalism.
The Civil Rights Movement in America accomplished many milestones – from breaking apartheid to raising awareness for later issues, like gentrification. When we think of the progressivism and work that was done in the 1960’s, we may jump to the Civil Rights Act, Voting Rights Act, or many other life-saving policies. In the background, however, other changes to our legal system were also occurring, including protections for journalists.
The necessity for protecting free speech in journalism predates the Civil Rights Movement by centuries. Even after the American Revolution, where colonists saw the harsh consequences of stripping a free press, the ideas of “free speech” in our constitution mostly left out discussion of press rights. The Sedition Acts of 1798 and 1918 are evidence of how little we allowed for free public expression, and America had a desperate need to define the rights of journalists, especially when criticizing public officials.
Up until 1964, the only separation between defamation and protected free speech was whether or not the statement(s) had truth. If a news outlet ran a story about someone which was false, then that outlet could be charged for libel or slander. This separation between true, protected speech and false, illegal communication was decided in the 1804 case People v. Crosswell. It was not a case in the Supreme Court, but it was important enough to show the country how we would separate the good from the bad in the media. The decisions reached in this case were revolutionary as they loosely allowed for the truth to be used as a defense in defamation charges. The later Sedition Acts, however, would show the country that this case held little power in protecting the free press.
Using the truth as a defense to defamation is a good start for Journalism, but that precedent alone does not account for the contemporary definitions of information and Journalism. Journalism is supposed to spread information, and the problem with information is that it is always changing. Think of a “Breaking News” story, where tuning in at 10:30 a.m. can engage viewers with a totally different scenario from tuning in at 11 a.m. Engaging with Journalism, whether as a reporter or viewer, should always be treated with caution, because even when the whole situation is said and done, there is an unreachable detail in every story. John Dewey, a famous newsman and scholar from the late 19th and early 20th centuries, described this inevitable discrepancy in communication/connotation, “events cannot be passed from one to another, but meanings may be shared by means of signs. Want and impulses are then attached to common meanings” (The Public and Its Problems, 1927). So if no truth can be perfectly communicated, we needed a more nuanced way of separating the good from the bad in the media than just examining the accuracy of their reporting. We also needed legal precedent to solidify the rights of the free press.
Come 1964, and the Civil Rights Movement is on full blast. Emmett Till has been killed, Rosa Parks has refused her seat, integration of Southern schools has begun, and Martin Luther King Jr. is marching. The New York Times, which has been supporting the movement, publishes a full-page ad about the brutal intolerance from the local government on activists and protestors, especially students. The page lists a number of facts, such as the ejection/tear gassing of 400 students in Alabama and the descriptions of attacks on protestors. Some details (specifically the padlocking of dining commons at a school in Alabama and seven arrests of MLK), however, were fabricated. Since those specific statements were false, Montgomery’s Commissioner of Public Affairs, L.B. Sullivan, sued the New York Times for libel, as he felt the false ad hurt his reputation as a supervisor. After seeing the statements were false, the jury voted in Sullivan’s favor, but the New York Times submitted the case for review in the US Supreme Court.
Details and accusations in the ad were not true, and up until this case, any lies in a publication meant that it was eligible for prosecution. The US Supreme Court, however, found this case to challenge pre-existing statutes. Justice Brennan wrote the statement about the majority opinion, and his statement portrayed the media as a vehicle for public debate. Since public debate includes harsh criticism of public officials, whether the information fed to the critic is true or not, the US Supreme Court created a set of standards for defamation, especially distinguishing public officials from private individuals. The new precedents set by The New York Times Co. v Sullivan, which are still alive today, say that on top of the regular things a private individual must prove to charge someone with defamation, a public official must also prove that the journalist acted with actual malice. Actual malice is defined by knowingly or recklessly spreading lies or falsehoods (Justia, web). This precedent, which may seem a bit ambiguous, created more of a “fair trial” system for news outlets that may spread falsehoods about the people in power. Now, the definition of defamation is no longer a simple look at whether or not the statements are true or false.
Freedom of speech allows for most kinds of speech as long as it is not harmful. While our country guarantees anyone the right to share their mind, matters of national security, personal damage, and violence incitation are still open to criminal prosecution. There have to be some limits to free speech because if there weren’t, chaos would be easy to create. However, limiting the free speech of honest news organizations putting out information that is untrue, changing, or subject to revision is the first step towards totalitarian governing. Without a free press that can discuss matters about the people in power, the government has complete control over the minds of the people. So, even though it is definitely wrong to spread lies in the news, it has to be allowed to a certain degree or else news organizations would be dropping like flies.
An outspoken critic of the precedents set by The New York Times Co. v Sullivan is Senior Circuit Judge of the US Court of Appeals Laurence Silberman. Silberman, appointed to the D.C. circuit by Ronald Reagan in 1985, has been attacking the decisions of the case for years, asserting that, “The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication” (Politico, web). Siberman’s outcries against the Supreme Court Decisions in the Civil Rights Era ultimately resemble former President Trump’s attacks on “fake news.” Silberman has been repeating these claims for years, but his most recent opinion in the Court of Appeals drew attention to his dissent.
Silberman has been in recent news for many of his opinions, from the “madness” of removing Confederate names from military assets to the “serious efforts to muzzle Fox News” (Bloomberg, web). His opinion that news outlets should always be responsible for spreading misinformation mostly stems from his fear of a growing liberal media. He believes that conservative voices are being silenced while liberal influence is rising, which sounds more like a personal problem than a reason to revoke our current protections for free speech.
The decision in The New York Times Co. v Sullivan was reached by the Warren Court, that is, the US Supreme Court under Chief Justice Earl Warren. The Warren Court was famous for decisions like this one such as breaking segregation, repairing Jim-Crow-era voting laws, and creating more protections for an individual’s fair trial. Whether you’re a staunch supporter of Silberman and radical critics of the free speech protections in The New York Times Co. v Sullivan or a journalist whose work is protected by them, it is nevertheless difficult to criticize the Warren Court’s credibility. Their application of constitutional framework to modern problems became some of the most famous landmarks in Supreme Court history, and the court’s years under Warren met the public with great examples of the judicial branch’s influence on policymaking.
The Supreme Court is not a body of lawmakers, per se, but a body of constitutional analysts. They look at current cases and review the original framework of the constitution to discuss how they believe the framers would see the current issue. Through these debates and final decisions, they set precedents and statutes which become as enforceable as law. The point in creating these new precedents through The New York Times Co. v Sullivan was not to open gaps in press responsibility, but to allow for discussion on matters of defamation. Especially in a world that now has the Internet, social media, etc. the frequency and quantity of information is so high that this “fair trial” for Journalists is more necessary than ever. The free press needs these protections to create and facilitate public debate, or else legal action would be a cost too high to risk.
Legal action from the damaged individuals in defamation cases is still a huge risk to news outlets today, especially if they are found guilty. Although these outlets are criminals, and should be treated accordingly, the downfall of a site called Gawker is a shining example of how the precedents from The New York Times Co. v Sullivan can still amount to news outlets losing in court. Gawker, while it was around, was famous for investigative gossip and exposing stories on celebrities. In 2007, the site published an article about tech billionaire Peter Thiel, outing him as a privately gay man. Since the statements were true and extracted from close friends of his, Thiel did not see success in suing the outlet for defamation or invasion of privacy. He decided instead to gear up for war and hired a legal team to defend anyone locked in Gawker’s future headlines. Nine years later, Gawker released a private sextape featuring Hulk Hogan from the WWE, and he sued them for invasion of privacy. Thiel and his anti-Gawker legal team funded Hogan’s legal fees and saw him through the case that would bankrupt and shut down Gawker. Although this was the exact fear the Warren Court had for journalists in The New York Times Co. v Sullivan, the news outlet acted through actual malice, so the protections did not help them. Many criticize Thiel for inhibiting free speech and strong-arming a media outlet with less money than him, but Thiel has since donated to the Committee to Protect Journalists. He does not believe that his actions were unjust, explaining that, “It’s precisely because I respect journalists that I do not believe they are endangered by fighting back against Gawker” (New York Times, web).
Defamation cases come in all shapes and sizes, from truthful to untruthful, public to private, and honest to malicious. The current laws may give journalists a fair trial in cases, but they do not give journalists the right to break boundaries or spread misinformation. All these protections do is extend the discussion of what our constitutional framers would agree is free speech or criminal publication. It moved our policies from direct crackdown on mistakes to a discussion of whether or not those mistakes are honest. It does not void the responsibility journalists have to tell the truth, but increases it. While the current laws may allow for unpunished misinformation and some cases of financial domination in court, they are much more open to debate than they used to be. That’s the point of the judicial system after all, not to favor one side or the other, but to facilitate discussion that reaches a fair decision.
- Dewey, John. The Public and Its Problems. Edited by Professor Melvin L. Rogers, Swallow Press, 2016.
- Bloomberg.com, Bloomberg, www.bloomberg.com/news/articles/2021-03-19/conservative-judge-calls-media-an-anti-gop-threat-to-democracy.
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