Keeping Speech Robust and Free

The libel lawsuit filed in March 2021 by Dominion Voting Systems against Fox News, over the network’s coverage of claims that the company had rigged the 2020 election, was settled this spring, but the case may soon become an artifact of a vanished era. In pretrial skirmishing, the two sides agreed on this much: the law of libel is governed by the Supreme Court’s 1964 decision in New York Times v. Sullivan. In the last legal arguments before the jury was to be seated, Rodney A. Smolla, one of the lawyers for Dominion, called Sullivan “the landmark decision that is the genesis for all of our modern First Amendment principles involving defamation law.” Erin E. Murphy, a lawyer for Fox, likewise said that the principle governing the case “starts in Sullivan.” But the emboldened conservative majority on the Supreme Court, having dispatched Roe v. Wade to the dustbin of overruled precedents, may now target Sullivan for the same treatment. Such a change would have fundamental consequences for both those who speak and those who are spoken about.

It’s a fitting time, then, to take a fresh look at Sullivan—how it came about and what it means today. In Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, Samantha Barbas, a professor at the University of Buffalo School of Law, tells the improbable story of the advertisement that gave rise to the case and the decision that Justice William J. Brennan ultimately wrote. It’s a tale that has been told before—notably in books by Anthony Lewis and Aimee Edmondson^*—but Barbas has a distinctive and relevant argument.

Like the earlier authors, Barbas makes the reasonable claim that Sullivan represented a straightforward battle between good and evil. It was, she writes, “one of a string of libel lawsuits brought by Southern segregationist officials against Northern media outlets…to prevent them from reporting on the civil rights movement.” By ruling for the Times, the Supreme Court “freed the press to cover the civil rights movement” and, not incidentally, likely saved the newspaper from being bankrupted by the damages it would have been ordered to pay in this and similar libel cases. But Barbas’s endorsement of the Sullivan decision is more nuanced than those of Lewis and Edmondson, and more reflective of the current moment. She appreciates the need for libel lawsuits at a time when “damaging falsehoods can spread online with a click, and reputations [can be] destroyed instantly.” But she recognizes that the protections of Sullivan are needed as much, or more, by individuals as by media companies. The story of Sullivan, and of the precedent’s possible demise, reveals as much about our own times as it does the 1960s.

In 1960 the authorities in Montgomery, Alabama, including L.B. Sullivan, the commissioner of public affairs, filed trumped-up charges of tax fraud and perjury against Dr. Martin Luther King Jr. Later that year a group of King’s supporters met at Harry Belafonte’s apartment in New York to start a fundraising effort for King’s defense. The civil rights leader Bayard Rustin took charge of it and decided to buy a full-page advertisement in the Times to attract donors. He gave some quick instructions to the playwright John Murray, who over six typewritten pages excoriated the Alabama officials for hounding King and abusing civil rights protesters.

Rustin listed several dozen endorsers of the message, mostly civil rights supporters from the North, but at the last minute he decided to add the names of twenty Black ministers from the South as well, though he had not asked them and they had no idea their names were being used. With the headline “Heed Their Rising Voices,” the ad ran on page 25 of the Times on March 29, 1960. It cost $4,800 but generated enough contributions for Rustin’s group to turn a nice profit for King’s defense.

In that era, just 394 copies of the Times circulated in Alabama, but the ad drew the attention of local officials in Montgomery. This is where the trouble began. Barbas writes of the advertisement, “In its overall gist, of course, the statements were true. The Montgomery officials had abetted and committed violence against the civil rights protesters.” Unfortunately a few details in the ad’s text were inaccurate. It described the song that protesters had sung on the state capitol steps as “My Country, ’Tis of Thee,” when it was the national anthem, and it said that King had been arrested seven times, not four. In addition, the ad incorrectly said that local law enforcement officials “ringed” a local college campus; the officers entered the campus but did not surround it.

Alabama, like most states at the time, recognized a doctrine of law known as “libel per se,” under which, if the Times was sued for libel, it was required to prove that the words in the advertisement were true “in all their particulars.” So if the Times could not verify every word, then the plaintiff could win unlimited damages. (Then as now, newspapers are legally responsible for everything they publish, including advertisements.)

In short order, L.B. Sullivan, who wasn’t mentioned by name in the ad, filed suit against both the Times and four Alabama ministers whose names had been listed without their knowledge: Ralph Abernathy, Joseph Lowery, Solomon Seay, and Fred Shuttlesworth. Sullivan’s lawyers added them because if the case included local defendants, the Times couldn’t legally move the proceedings to federal court and because, of course, he wanted to harass his political adversaries. After a brief trial, the jury awarded Sullivan $500,000. The liability was “joint and several,” which meant that he could collect the entire award from the Times or any of the four ministers.

Lewis’s book about Sullivan centers on the plight of the Times, and Edmondson’s ranges over a number of related cases in the South, but Barbas makes a signal contribution by focusing on the harrowing story of what happened to the four ministers. The Times posted a bond, enabling it to proceed with an appeal, but the ministers had no such resources, and Sullivan began seizing their property. He took Abernathy’s five-year-old Buick Century and his one-twelfth share of a small piece of land that his parents, who had been sharecroppers, managed to buy in another part of Alabama. Shuttlesworth and Lowery lost their cars, too, and Seay his land. Their bank accounts were seized and their salaries garnished. (Their congregants pitched in to make sure they had cars to drive.) In all, the Alabama authorities took about $7,500 in property from the ministers.

The “segregationist ‘libel attack,’” as Barbas calls it, continued after Sullivan’s victory at trial. Later in 1960, in response to a Times article by the reporter Harrison Salisbury, local officials in Birmingham filed four more libel suits against the Times. A few months after that the Times lost another libel case in Alabama, this one filed by the mayor of Montgomery and based on the same advertisement as the one in the Sullivan case, and it faced another damage judgment of $500,000. “By 1964,” Barbas writes, “officials in three Southern states had brought seventeen libel actions against Northern media outlets, primarily over civil rights coverage, seeking damages of more than $288 million.” By suing their critics, the plaintiffs were engaging in the same kind of resistance that they had mustered to fight the legal demands to integrate their schools, and for the same reason: the libel cases were another way of defending Jim Crow.

In September 1960, after the jury’s verdict in the Sullivan case, a grand jury in a town near Birmingham indicted Salisbury on forty-two counts of criminal libel, exposing him to a possible sentence of twenty-one years in prison. Because the Times was still a fairly small Sulzberger-family business during this period, the libel suits threatened it with economic devastation. So the Times made a crushing journalistic concession. In order to avoid local process servers and thus more lawsuits, as well as more arrests of its reporters, it kept all of them out of Alabama for the next two and a half years. The paper thus had to rely on wire services in one of the central locales of the biggest story in the United States—the civil rights movement.

What were the Times and the ministers to do? Before the 1960s, the Supreme Court had frequently held that libel was purely a matter of state tort law, and the First Amendment offered no protection for speech found to be libelous. As the Court had put it in a 1942 case, libel belonged to a category of speech “the prevention and punishment of which has never been thought to raise any constitutional problem.” And under Alabama law, because the advertisement was both implicitly critical of Sullivan and incorrect in certain particulars, it was libelous. Desperate for a solution, the Times turned to Herbert Wechsler and Marvin Frankel, a pair of Columbia Law School professors. They came up with a new approach.

The lawyers were, it turned out, pushing on an open door, because Chief Justice Earl Warren’s Supreme Court was in the process of dismantling the legal superstructure of Jim Crow. Justice Hugo Black, a noted First Amendment absolutist, had recently said that civil libel judgments were like the ancient crime of “seditious libel,” which governments had used to punish critics. The Court had never explicitly held that the crime of seditious libel was unconstitutional, but Black had suggested that it would, if given the opportunity.

Picking up on that idea, when their appeal made it to the Supreme Court in 1964, the Times’s lawyers argued that the civil libel judgment in the Sullivan case was tantamount to allowing the state of Alabama to criminally prosecute the Times for exercising rights guaranteed by the First Amendment. The paper thereby shifted the focus of the case from the right of individuals to protect their reputations to the right of individuals to criticize government.

Barbas makes good use of recently released archives to tell the behind-the-scenes story of how the Court decided to rewrite the law of libel. In the justices’ initial private conference after the argument, Black, Arthur Goldberg, and William O. Douglas pushed for a simple approach: rule that the First Amendment prohibited public officials from filing libel suits. The six others, while agreeing that the judgment for Sullivan should be overturned, didn’t want to go that far. As Warren often did, he turned to his loyal deputy Brennan to come up with an opinion that would satisfy all nine justices: one that would preserve the right of government officials to file libel cases but make it more difficult for them to prevail.

The advertisement in the Times contained acknowledged errors, so one important question was whether the First Amendment could protect statements that included falsehoods. Brennan established a rule that trivial errors like the ones in the advertisement could not be the basis for libel judgments. “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable ‘self-censorship,’” he wrote. “Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.” In other words, he said, it was both unreasonable and unconstitutional to force newspapers to check everything they published for minor mistakes or face ruin.

Brennan went further, creating a new burden of proof for public officials seeking libel awards. He employed a fairly obscure legal phrase, ruling that public officials must show that false statements about them were made with “actual malice.” Over the years, the use of the word “malice” has caused some confusion. Brennan did not mean malice in its conventional sense of anger or preexisting animus. Rather, he provided a different definition, writing that a public official cannot win a libel case “unless he proves that the statement was made…with knowledge that it was false or with reckless disregard of whether it was false or not.”

For decades, even as the Supreme Court moved to the right, the Sullivan precedent lived a charmed life. In one important respect, the breadth of its protections was expanded. The decision said only that “public officials”—that is, representatives of the government—were required to show actual malice in order to win libel cases. Three years later, in a case involving a libel claim by a college football coach, the Court said that “public figures”—that is, prominent people or companies—would also have to meet the actual-malice standard. So over the next six decades, the question in every libel case involving public officials or public figures has been whether the contested statements were made with either knowledge of falsity—that is, lies—or reckless disregard of the truth. Barbas’s careful summary of the origin and meaning of Sullivan provides a useful guide to whether Dominion would have met Brennan’s standard if its case against Fox had gone to trial.

On the evening of Election Day, November 3, 2020, Fox News alienated Donald Trump, as well as many of his supporters, by projecting—correctly—that Joe Biden would win Arizona. Once all the state’s votes were counted, that projection was vindicated, and Fox as well as all the major networks declared Biden the president-elect on November 7. Still, the Arizona call put Fox on the defensive with its audience. The following day, the network started trying to make amends.

Trump and some of his advisers began to blame Dominion, whose voting equipment had been used in twenty-eight states, for engaging in fraud that he said cost him the election. Asked about Dominion’s software in an interview with Maria Bartiromo on Fox on November 8, Sidney Powell, a Trump adviser and attorney, said, “That is where the fraud took place…. That’s when they had to stop the vote count and go in and replace votes for Biden and take away Trump votes.” Over the next several weeks Powell and other Trump allies, especially Rudolph Giuliani, returned to Fox to make the same claim. On November 19 Giuliani said that Dominion’s machines were programmed “to give somewhere between a 2 and 5 percent advantage” to Biden.

As soon as these statements were made, Dominion sent a series of protest letters to Fox, asserting that none of what the Trump surrogates said was true. E-mails and texts that came out later in the course of discovery showed that many people inside Fox recognized that the claims about Dominion were false. In blunt, frequently scathing terms, top Fox hosts and executives privately dismissed the claims of the Trump allies. Tucker Carlson, for example, texted Laura Ingraham on November 18, “Sidney Powell is lying by the way. I caught her. It’s insane.” Ingraham responded, “Sidney is a complete nut. No one will work with her. Ditto with Rudy.” Rupert Murdoch, the chairman of Fox, wrote in an e-mail, “Watching Giuliani! Really crazy stuff. And damaging.”

Still, Fox kept airing the claims about Dominion for a very specific reason. In the postelection period, it was losing viewers to Newsmax and OANN, a pair of smaller right-wing networks that were embracing Trump’s false claims about Dominion. Carlson texted his producer, “Do the executives understand how much credibility and trust we’ve lost with our audience? We’re playing with fire, for real…an alternative like newsmax could be devastating to us.”

When Fox White House correspondent Kristin Fisher fact-checked claims by Powell and Giuliani, she was criticized by her bosses. She later testified in a deposition that her direct superior “emphasized that higher-ups at Fox News were also unhappy with it,” and she “needed to do a better job of…—this is a quote—‘respecting our audience.’” When a different reporter fact-checked the Trump claims about Dominion, Carlson texted Sean Hannity and Ingraham, “Please get her fired. Seriously…What the fuck? I’m actually shocked. It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.”

In his deposition, Bill Sammon, a Washington-based Fox executive, put it plainly: “It’s remarkable how weak ratings make good journalists do bad things.”

Based on the false claims of fraud, which were amplified across many programs on Fox News and its sister network Fox Business, Dominion sued for libel, seeking $1.6 billion in damages. Fox also broadcast similar lies about Smartmatic, another voting machine company, which has also filed suit against the network, demanding $2.7 billion in damages. That case is pending, as are various other Dominion and Smartmatic lawsuits against Newsmax and OANN, as well as against Powell and Giuliani as individuals.

Before settling with Dominion, Fox’s lawyers offered a straightforward defense: the network was just covering the news. “There is no evidence that anyone in Fox Corporation had a direct role in creating or publishing any of challenged statements in this consolidated case,” the Fox lawyers asserted. “To the contrary, Fox News hosts testified repeatedly that they covered the President’s allegations about Dominion because they were the most newsworthy story of the day.” As Carlson put it in his deposition, “The allegation that the presidential election was rigged by a voting machine company, true or not, is in itself one of the biggest news stories of [our] lifetimes.” And all major news outlets, not just Fox, covered Trump’s allegations. The problem with Fox’s argument is that it has long been true in libel law that a publisher, in any medium, is responsible for all the statements it publishes, even if it is merely quoting others. (This is why Sullivan could sue the Times over the text of an advertisement.)

In a broader sense, the Fox lawyers claimed that a Dominion victory would be “a profound threat to the First Amendment.” But it was never clear how that was so. Dominion’s libel case was the rare one in which it appeared likely that the plaintiffs could satisfy both strands of the Sullivan standard.

Most libel cases that go to trial are fought over whether the publisher displayed “reckless disregard” of the truth. Here, Fox’s conduct was obviously reckless, not least because several staff members used that very word in off-air communications at the time. On November 17 Carlson texted Powell, “If you don’t have conclusive evidence of fraud at that scale, it’s a cruel and reckless thing to keep saying.” Four days later he texted Jenna Ellis, a Trump legal adviser, that the accusations against Dominion were “shockingly reckless.” A producer for Jeanine Pirro, the Fox anchor who was the most enthusiastic transmitter of Powell’s lies, e-mailed a colleague that Pirro was a “reckless maniac” on the subject of Dominion.

But Dominion also had the rarer opportunity to satisfy the first strand: “knowledge of falsity.” As the internal texts and e-mails made clear, virtually everyone at Fox knew that Trump’s allies were peddling lies, yet the network continued putting Powell and Giuliani on the air.

If the tort of libel is going to exist at all—if individuals and companies are going to have any redress for false statements that damage their reputations—Fox deserved to lose this case. As Barbas aptly notes, in defending the continued existence of libel claims by public officials and figures, “Reputation remains an important personal interest that is essential to dignity and individual well-being. The protection of reputation also has social value.” Sullivan did not provide shelter for Fox’s assault on Dominion’s reputation, nor should it have.

On April 18 the two sides settled, with Fox agreeing to pay Dominion $787.5 million. The vast sum brought a measure of comfort to both companies; it compensated Dominion for the reputational damage it suffered, and it spared Fox the likely embarrassments that a trial would have produced as well as the risk of an even larger award from a jury. But since the case never reached any appeals court, much less the Supreme Court, the legal issues underlying the lawsuit were left unresolved. The most important of these is the status of Sullivan itself.

Barbas concludes her book with a thoughtful appreciation of the balance Brennan struck in Sullivan. He left room for redress by plaintiffs in cases of extraordinary journalistic malfeasance, but the core of the decision affirmed a broad conception of First Amendment protections. She notes that the Supreme Court has at least sixty times since 1964 quoted Brennan’s most famous passage: there is “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” But that commitment, at least as expressed in Sullivan, is now under threat.

Justices Clarence Thomas and Neil Gorsuch have placed Sullivan in their sights. Both have long-standing grievances against the press—Thomas for the reporting on his confirmation hearing, when he was accused of sexual misconduct by Anita Hill, and Gorsuch for how the press covered his mother Anne Gorsuch’s tenure as head of the Environmental Protection Agency under President Reagan, when she was cited for contempt of Congress.

The two justices also share a judicial philosophy that could scarcely be more different from Brennan’s. Dissenting from the Court’s failure to grant certiorari in a 2021 case, Gorsuch wrote that freedom of the press was not “a favor to a particular industry.” He went on:

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.

Writing in agreement with Gorsuch in the same case, Thomas explained, “This Court’s pronouncement that the First Amendment requires public figures to establish actual malice bears ‘no relation to the text, history, or structure of the Constitution.’”

Thomas and Gorsuch offer an “originalist” and “textualist” argument against Sullivan. To be sure, there is a plausible case that the framers did not specifically have the actual-malice standard in mind. But the problem is more with originalism and textualism than with Sullivan. The genius of Brennan’s solution was that he upheld the value at the heart of the First Amendment—the right to criticize the government—while also preserving the tort of libel. The strength of Dominion’s case and Fox’s willingness to settle for so much money refute the justices’ contentions that the Sullivan decision effectively killed the ability of anyone to sue for libel. And the continued existence of a robust and free press over the past six decades vindicates the balance that Brennan struck.

But Sullivan’s long survival is no guarantee that it will endure. The three liberals—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—will clearly support Sullivan should it get to the Court anytime soon. Samuel Alito will probably join Thomas and Gorsuch. Chief Justice John Roberts has resisted overturning long-settled precedents, but Amy Coney Barrett sidestepped the chance to endorse Sullivan in her confirmation hearing. That leaves Brett Kavanaugh, who, as an appeals court judge, gave Sullivan an enthusiastic embrace. In an opinion citing Sullivan on the D.C. Circuit, Kavanaugh said that

to preserve First Amendment freedoms and give reporters, commentators, bloggers, and Tweeters (among others) the breathing room they need to pursue the truth, the Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits.

But in those days Kavanaugh was bound by Supreme Court precedents. Now he can create them—or overrule them.

If any of the other libel cases coming out of the 2020 election are not settled before trial, they may well serve as test cases for Sullivan. If the Court rejects Sullivan, as it did Roe, that would lead to a similar result: returning the issue to the states and allowing each one to design its own rules for libel cases.

In states dominated by Democrats, the courts or the legislature would probably restore the Sullivan status quo with alacrity. Barbas’s book gives a pretty good idea of what would happen elsewhere. In red states today, the mainstream media may be even less popular than it was in the 1960s, so it’s hard to imagine that authorities there will create any rules that provide rigorous protections for journalists and other speakers. Unlimited liability for trivial errors could return.

And thanks to the Internet, the words of controversial speakers are now disseminated nationwide. Aggrieved plaintiffs would thus look to bring their cases in the states with laws that protect free speech the least. Individuals who air unpopular views, either on small websites or on social media, would be especially vulnerable as the modern-day counterparts of the four ministers in Sullivan. And just like the Times and the ministers, these imperiled speakers would eventually look to the Supreme Court for vindication of their First Amendment rights, but they would likely find a very different reception than the Sullivan defendants did in 1964.