Libel and the media
Times v. Sullivan ushers in an
uncertain new age of press freedom
Elements of libel
• Defamatory content
Elements of libel
• Defamatory content
• Falsity
Elements of libel
• Defamatory content
• Falsity
• Publication
Elements of libel
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Defamatory content
Falsity
Publication
Identification
Elements of libel
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Defamatory content
Falsity
Publication
Identification
Fault
Elements of libel
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Defamatory content
Falsity
Publication
Identification
Fault
Harm
Evolution of libel
• Falsity was not always an element of
libel: The greater the truth, the
greater the harm
Evolution of libel
• Falsity was not always an element of
libel: The greater the truth, the
greater the harm
• Fault was not an element of libel until
the 1960s — before that, it was a nofault tort
Evolution of libel
• Falsity was not always an element of
libel: The greater the truth, the
greater the harm
• Fault was not an element of libel until
the 1960s — it was a no-fault tort
• How does requiring fault advance the
purpose of the First Amendment?
Can libel = prior restraint?
• In Near, Chief Justice Hughes wrote
that the Minnesota Public Nuisance
Law amounted to prior restraint
Can libel = prior restraint?
• In Near, Chief Justice Hughes wrote
that the Minnesota Public Nuisance
Law amounted to prior restraint
• Hughes cited Blackstone on afterthe-fact punishment
Can libel = prior restraint?
• In Near, Chief Justice Hughes wrote
that the Minnesota Public Nuisance
Law amounted to prior restraint
• Hughes cited Blackstone on afterthe-fact punishment
• Milton, in the Areopagitica,
advocated after-the-fact punishment,
including death
Civil rights and libel
• As with Gitlow v. New York, the Times v.
Sullivan decision must be seen within the
broader context of the civil-rights movement
Anthony Lewis
• Wrote Make No
Law, a history of
Times v. Sullivan
• Retired New York
Times columnist
• Married to
Margaret Marshall,
chief justice of
Mass. SJC
Ad on
King’s
behalf
• Published in
New York Times
in 1960
• Contained
several minor
errors
Four ministers also sued
• Rev. Ralph
Abernathy
(right) with King
in Alabama
• Idea was to keep
Sullivan’s suit in
state court
Times, ministers lose
• Found liable in
courtroom of judge
who presided at
re-enactment of
Jefferson Davis’s
inauguration
• $500,000 judgment
• Libel a state matter
— or is it?
Times v. Sullivan (1964)
• Unanimous decision written by
William Brennan
• Says Alabama court’s decision
amounts to seditious libel: criticism
of government officials
• Therefore, the Alabama court’s
action is unconstitutional under the
First and Fourteenth Amendments
William Brennan’s view
“[D]ebate on public
issues should be
uninhibited, robust,
and wide-open, and
… it may well include
vehement, caustic,
and sometimes
unpleasantly sharp
attacks on
government and
public officials”
Actual malice
• New standard of fault that public
officials must show to prove libel
Actual malice
• New standard of fault that public
officials must show to prove libel
• Knowingly false
Actual malice
• New standard of fault that public
officials must show to prove libel
• Knowingly false
• Reckless disregard for the truth
A libel earthquake
• 1967: Actual malice standard
extended to public figures as well as
officials
A libel earthquake
• 1967: Actual malice standard
extended to public figures as well as
officials
• 1974: Private figures must at least
show negligence to win a libel suit
A libel earthquake
• 1967: Actual malice standard
extended to public figures as well as
officials
• 1974: Private figures must at least
show negligence to win a libel suit
• 1989: Reckless disregard is defined
as knowledge of probable falsehood
Disadvantages for media
• Opens press defendants up to
examination as to their state of mind
Disadvantages for media
• Opens press defendants up to
examination as to their state of mind
• Harms media credibility by creating a
cynical attitude among press critics
Disadvantages for public
• Virtually no recourse for public
official or public figure
Case study: Dan Rather
• A 1980s case very
similar to the story
that brought him
down in 2004
• Won by testifying
he believed
documents were
authentic