Centuries of Libel Law Erased by Times-Sullivan
New York Law Journal
January 30, 1984
Mr. Goodale, former vice chairman of The New York Times, is a member of the
New York law firm of Debevoise & Plimpton. He was assisted in the preparation of this
article by John S. Kiernan, an associate of that firm.
Forget libel law for the last 100 years. The only case that counts is Sullivan v.
New York Times Co.,1 and that was decided only 20 years ago. With one fell swoop of
the pen, the Warren Court overturned centuries of common law and held that the First
Amendment applied to the law of libel.
Sullivan held narrowly that statements about public officials are constitutionally
privileged, even if false, so long as they are published without “actual malice” – that is,
knowledge of reckless disregard of their falsity. Its logic extended much further,
suggesting that freewheeling public debate is so essential to the First Amendment that the
participants in such debate are entitled to extra breathing room, even at the cost of some
false statement that causes injury to appropriate targets of the debate. Dean Prosser, who
was forced to add an entire chapter to his Torts treatise as a result of the decision, called
the decision “unquestionably the greatest victory won by the defendants in the modern
history of the law of torts.”2 More was to come.
The common law before Sullivan did not give the press much leeway in what it
wrote about public officials, or about anyone else. In Alabama, where Sullivan arose, a
newspaper was absolutely liable for any false statement, even the result of innocent
misstatement that “tend[ed] to injure a person . . . in his reputation: or to “bring him into
contempt.”3 Strict liability was nearly the universal rule, endorsed by the Restatement of
Torts and by most states.4 The few grumbling dissenters tended only to exonerate
1
376 U.S. 254 (1964).
2
W. Prosser, Torts, Ch. 21, and p. 819 (4th Ed. (1971).
3
376 U.S. at 254.
4
W. Prosser, Torts, Sec. 108 at 791-92 (Bd. Ed. 1964); Restatement, Torts Sec. 582
Comment g (1938); Rosenbloom v. Metromedia, 403 U.S. 29, 87 n. 13 (1971)
(Marshall, J., dissenting); Developments in the Law – Defamation, 69 Harv.L.Rev.
875, 902-10 (1956).
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defendants from the results of innocent mistake, not to allow misstatements when any
degree of fault was present.5
Aside from the defense of truth, the principal privilege available to publishers of
defamatory statements before 1964 was the qualified privilege of “fair comment.” In
about three quarters of the states, this privilege was narrow. It meant only that
newspapers were free to print defamatory opinions about matters of “public interest” and
“public concern,” so long as those opinions did not make or imply any false assertions of
fact.6 What constituted the public interest was of course a matter of great dispute, and
even statements of opinion without any factual assertions at all were protected only if
newsworthy.
In a few states, though, the seeds of Sullivan were germinating. Renegate courts
were holding, without any reference to the Constitution, that the right of fair comment
was so important as to make an occasional false statement of fact excusable in the interest
of keeping public debate open.7
Strict Liability
Meanwhile, the Constitution lay dormant in defamation actions. In 1909 Oliver
Wendell Holmes, writing for a unanimous Court, endorsed the common law rule of strict
liability in libel action.8 Although the Supreme Court intimated that the First
Amendment applied to the states as early as 1925,9 and firmly declared this in 1931,10 no
one made the connection between the First Amendment and the law of libel. In the
process of addressing prior restraints of scandalous publications, contempt judgments
against critics of a court, “fighting words” statutes and obscenity laws, the Court
5
W. Prosser, Torts, Sec. 108 at 792 n.38 (3d Ed. 1964).
6
Id., Sec. 110, at 814.
7
See cases cited in Sullivan, 376 U.S. at 280 n.20.
8
Peck v. Tribune Co., 214 U.S. 185, 189 (1909).
9
Gitlow v. New York, 263 U.S. 662 (1925).
10
Stromberg v. California, 283 U.S. 357, 358 (1931).
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repeatedly noted in dictum that the Constitution offered no protection to libel
defendants.11
Then came Sullivan, a case presenting a perfect opportunity to make new law.
Sullivan, a city Commissioner in Montgomery, Alabama, sued The New York Times over
a political advertisement purchased by blacks participating in non-violent civil rights
demonstrations in the South. The ad asserted among other things that police had ringed a
Montgomery college campus where students were demonstrating, had padlocked the
college dining hall in an effort to starve the students into submission, and had repeatedly
arrested Rev. Martin Luther King. It was accurate in most respects, but contained some
false statements. Although the plaintiff was not identified by name anywhere in the ad,
an Alabama jury awarded him $500,000 without hearing any evidence of actual injury to
his reputation.
First Amendment Rights
The Supreme Court held without difficulty that the judgment must be reversed
because the evidence did not show that the article had defamed the plaintiff. But it did
not stop there. After reviewing this country’s long history of opposition to laws
restricting free commentary on affairs of government, it held in a broad stroke that the
First Amendment prohibits the imposition of liability for defamatory statements
involving public officials, even if these statements are negligently false.
The Court’s language has been quoted so many times that it is by now familiar.
Justice Brennan cited “a profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government officials.”12
Absolute liability for false statements would result in self-censorship that was inimical to
these goals, the Court reasoned.13 To protect the interests in debate, the press received
the protections of a new qualified privilege – the “actual malice” requirement – a new
11
Near v. Minnesota, 283 U.S. 697, 715 (1931); Pennekamp v. Florida, 328 U.S. 331,
348-49 (1946); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); Times
Film Corp. v. City of Chicago, 365 U.S. 43, 48 (1961).
12
376 U.S. at 370.
13
Id. at 270.
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standard of proof – “convincing clarity” – and a new standard of judicial review –
“independent examination of the who record.”14
Despite the breadth of the Court’s holding, Justices Black and Douglas wrote
separately that the Court had not gone far enough, maintaining that all restrictions on the
press’s freedom violate the First Amendment,15 and Justice Goldberg wrote that all
restrictions on the right to print statements about public officials are unconstitutional.16
Libel law in the 20 years since Sullivan has focused on at least two separate but
related issued – first, what Sullivan means and how far it extends; and second, what
practical protections are appropriate to secure for the press the protections Sullivan and
its progeny are meant to provide. The first area of development, while not settled, has at
least stabilized into rules that are familiar to press lawyers. The second is far from such
stability.
Public Figures
It didn’t take long for the Court to begin explaining what Sullivan meant, although
the explanation proceeding by fits and starts. Only a few years after it was decided, the
Court unsurprisingly announced that despite the opinion’s reliance on the historical
legitimacy of criticism of government, its logic applied with equal force to cases
involving non-governmental public figures as well.17 Soon after, it explained that to have
published with “actual malice” a defendant must have “in fact entertained serious doubt
as to the truth of his publication.”18 The Court also addressed the issue of how low a
governmental official must be before he is no longer a “public official” within the
meaning of Sullivan,19 and for a short time embraced a rule that, like the suddenly
obsolete defense of fair comment, focused on the newsworthiness of the subject matter
14
Id. at 286.
15
Id. at 293-97 (Black, J. joined by Douglas, J. concurring.
16
Id. at 297-305 (Goldberg, J., joined by Douglas, J., concurring.
17
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
18
St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
19
Rosenblatt v. Baer, 383 U.S. 74, 84-86.
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rather than the identity of the alleged victim in determining the scope of the constitutional
privilege.20
In 1974, the Court attempted to complete the Constitutionalization of libel law
that it had begun in Sullivan, in Gertz v. Robert Welch, Inc.21 Once again, it went far
beyond the facts of the case to set down rules that would establish benchmarks for
interpreting Sullivan and would extend some constitutional protections into the remaining
areas of the common law untouched by the First Amendment.
At the outset, the Court rejected the old fair comment approach of assessing a
published item’s newsworthiness before deciding how much protection to accord it,
expressing the conviction that courts should not find themselves in the business of
determining what is or is not newsworthy. As an alternative, the Court returned to its
previous scrutiny of the public nature of the alleged victim. It redefined what makes a
person a public figure, stating that a person can be an all-purpose public figure or, by
injecting himself into a particular controversy, can become a limited purpose or “vortex”
public figure.22 Defamatory statement with respect to either type of public figure were
deemed privileged.
Qualified Fair Common Privilege
Next, it laid to rest the last vestiges of the qualified fair comment privilege, with
the blanket statement that “[u]nder the First Amendment there is not such thing as a false
idea.”23 Opinion need no longer be newsworthy to be constitutionally protected; it is
privileged in all cases.24
Finally, it explained how the First Amendment applies to private individuals,
holding that the states need not require such individuals to prove “actual malice” but
20
Rosenbloom v. Metromedia, 403 U.S. 29 (1971).
21
418 U.S. 323 (1974).
22
Id at 345.
23
Id at 339.
24
Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.), cert. denied, 434 U.S. 834
(1977); Rinaldi v.Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 380, 397 N.Y.S.
2d 943, 950, cert. denied, 434 U.S. 969 (1977), Cf. Bose v. Consumers Union 692
F.2d 189 (1st Cir.1982), cert. granted, 51 U.S.L.W. 3774 (1983).
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cannot impose liability without fault,25 and that punitive damages may not be imposed
without a finding of “actual malice.”26
Although uncertainty remains over the limits of Sullivan’s protection, the method
of analysis of a libel suit has now been in place without significant change for a full
decade. Students of the First Amendment have become comfortable with the notion that
the press has substantial protection against libel actions.
This notion, however, doesn’t square with the facts. Paradoxically, press
defendants are defending more libel actions and being assessed heavier damages than
ever occurred before Sullivan. More press self-censorship goes on now, under the careful
scrutiny of lawyers, than at any other time in my quarter-century of practice as a press
lawyer.
Although Sullivan and its progeny provide substantial theoretical protection to the
press, and usually end up producing a judgment in the press’s favor at the end of a long
litigation, the press rightly feels fully as vulnerable now than it did before Sullivan.
There are several good reasons for this sense of vulnerability. The first is a gradual but
perceptible shift in public sentiment. Juries in all forms of tort litigation are finding for
individual plaintiffs with less attention to the arguments of corporate defendants and
greater inclination to award staggering damages than ever before.27 Because the same
press that was credited with unraveling the mysteries of Watergate is now widely viewed
as arrogant and over-intrusive, jury sympathy has often ranged against it with special
intensity.
Second, the pure prospective cost of defending a libel suit is the greatest source of
self-censorship.28 This cost can take many forms: hundred of thousands of dollars in
legal fees; intrusive examination into areas of decisionmaking once thought to be within
the realm of protected editorial privilege;29 attempts to compel identification of
25
418 U.S. at 347. See, e.g., Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d
196, 379 N.Y.S.2d 61(1975) (private figure may establish liability only by showing
that “the publisher acted in a grossly irresponsible manner without due consideration
for the standards of information gathering and dissemination ordinarily followed by
responsible parties.”).
26
Id. at 350.
27
See Libel Defense Resource Center Bulletin, No. 6, at 2 (Winter 1982).
28
See Anderson, Libel and Press Self-Censorship, 53 Tex.L.Rev. 422 (1975).
29
See Herbert v. Lando, 441 U.S. 153 (1979).
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confidential sources;30 and the pressure, frustration and demands on personal resources of
defending a nagging litigation for half a decade or more before its resolution.
Some courts have combatted these trends with increased sensitivity to the
appropriateness of summary judgment in libel actions.31 Others have conducted intrusive
reviews of trial records, leading to an increasing rate of judgments notwithstanding the
verdict and reversals on appeal.32 Still others, together with press scholars, have
attempted to cut back on the damages a jury can award, eliminate punitive damages
altogether,33 and retain substantial protection for journalists’ promises of confidentiality
to sources.34
This new level of practical protections is in its relative infancy. Without these
protections, the robust debate envisioned by Sullivan is dangerously circumscribed. In
spite of all that Sullivan and its progeny accomplished, in the current litigation
environment, the spectre of monumental liability for a small slip-up looms more heavily
over editors’ rooms today than it did 20 years ago, leading to unilateral deletion of many
of the precise statements, opinions, paragraphs, and articles that Sullivan intended to
foster.
30
See, e.g. Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir.
1980).
31
Compare Rinaldi v. Holt, Rinehart and Winston, supra, 42 N.Y.2d at 384 (favoring
summary judgment) with Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9 (1979)
(disfavoring it).
32
See Libel Defense Resource Center Bulletin, No. 7, at 21 (Spring-Summer 1983).
33
See generally Goodale, The Burnett Case. The New York Times, at A23 (April 9,
1981).
34
See, e.g., Miller v. Transamerica Press, Inc., 628 F.2d 1932 (5th Cir. 1980); Bruno &
Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980); Cervantes v.
Time, Inc., 464 F.2d 986 (8th Cir. 1972).
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