A Major Supreme Court First Amendment Decision Could Be At Risk

by Samantha Barbas

Samantha Barbas is a professor of law at the University at Buffalo who has written a book on the history of New York Times v. Sullivan, to be published by the University of California Press. She received a Public Scholar Award from the National Endowment for the Humanities for the writing of this book.

In separate opinions issued on July 2, dissenting from the Supreme Court’s decision not to hear a case next term, Justices Clarence Thomas and Neil M. Gorsuch urged the court to revisit a major decision: New York Times v. Sullivan (1964). Widely regarded as one of the most important and consequential First Amendment decisions in history, in Sullivan the court declared “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” This decision revolutionized libel law and has guided how the Supreme Court and lower courts have interpreted the First Amendment in the subsequent decades.

If Gorsuch and Thomas get their way, however, and the court eventually modifies or overturns Sullivan, it could have a chilling effect on the ability to criticize government officials, as well as the freedom of the press to do investigative journalism and to hold government accountable.

Before Sullivan, states maintained strict libel laws in an attempt to protect individuals’ reputations in their community from being besmirched unfairly. Crucially, these standards forced defendants to prove the truth of their statements “completely and in all its particulars” — an exceptionally high bar.

The civil rights movement of the late 1950s and early 1960s exposed the danger of these strict laws. In 1960, in the case that eventually prompted the court to step in, L.B. Sullivan, the segregationist police commissioner of Montgomery, Ala., sued the New York Times and four ministers affiliated with the Rev. Martin Luther King Jr.’s Southern Christian Leadership Conference. Sullivan claimed he’d been defamed by false statements in an advertisement, published in the Times, accusing him of committing violence against civil rights activists.

In reality, there were only minor errors in the ad. But Sullivan had unequivocally overseen violence against civil rights activists. And indeed, the charge itself actually bolstered Sullivan’s reputation locally for cracking down on civil rights protesters — something many White citizens in Montgomery supported at the time. Yet under Alabama’s strict libel laws, Sullivan still won his lawsuit, with a jury awarding him $500,000 in damages, the largest libel verdict in the United States at that time.

Sullivan’s lawsuit was only one in an unprecedented string of such suits brought by Southern segregationist officials against Northern media outlets. Their goal was to intimidate the media and prevent coverage of the civil rights movement and local officials’ repressive and often brutal responses to it. Segregationists despised the Times in particular for its vocal support of integration and sympathetic reporting on civil rights.

This “libel attack” on the press was a shrewd — and for a while effective — tactic. By 1961, the Times confronted $7 million in potential libel judgments and the possibility of bankruptcy. In 1964, CBS, the Saturday Evening Post and the Associated Press faced over $200 million in potential damages. Newspapers pulled reporters out of the South and quashed stories for fear of being slapped with potentially ruinous libel suits. Leaders of the civil rights movement, which itself was facing the burden of legal defense in the libel cases and massive libel judgments, described the lawsuits as a “civil rights crisis of historic magnitude.” This litigation also deeply threatened the freedom of the press to report on a crucial issue.

Read entire article at Made By History at the Washington Post