By Samantha Barbas, author of Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan

Sarah Palin’s loss in her well-publicized libel suit against the New York Times in February 2022 could result in a decision affecting the most significant First Amendment ruling in history. Palin is now appealing the case, with the hopes of getting the case before the U.S. Supreme Court. There, she would seek to challenge the line of cases that began with New York Times v. Sullivan (1964), in which the Supreme Court applied the First Amendment to libel law and held that public officials and public figures must show “actual malice” or “reckless disregard” of the truth in order to win a libel suit. Sullivan and subsequent cases freed the press and other speakers from the threat to free expression posed by strict libel laws.

Palin’s lawsuit is part of a movement to engineer the overruling of Sullivan, a movement that started with Donald Trump. As candidate and president, Trump announced his desire to get rid of Sullivan, to make it easier to sue his liberal enemies in the press. Trump’s pronouncements, not to mention his many libel suits, inspired further attacks on Sullivan. Criticism of Sullivan has also come from members of the Supreme Court. In 2021, Clarence Thomas and Neil Gorsuch urged the Court to reconsider Sullivan and subsequent cases extending Sullivan. If the Supreme Court takes up this suggestion, it could have major impacts on freedom of speech, as the story of Sullivan makes clear.

Before New York Times v. Sullivan, states maintained strict libel laws to protect reputations from being unfairly tarnished by false statements. Reputation is an important value, yet libel laws could be deployed to harass speakers in meritless cases – for example, by forcing defendants to prove the truth of their statements “completely and in all their particulars.” In the 1960s, segregationist officials in the South weaponized libel law in a campaign to undermine liberal Northern newspapers that criticized segregation. Their objective was to halt coverage of the civil rights movement, reporting that would prove crucial to forging national support for desegregation and civil rights.  

In 1960, L.B. Sullivan, public affairs Commissioner of Montgomery, Alabama, who supervised the city’s police, sued the New York Times and four ministers who led Dr. Martin Luther King Jr.’s Southern Christian Leadership Conference (SCLC). Sullivan claimed he’d been defamed by statements in a fundraising advertisement for a civil rights organization, published in the Times and purportedly signed by the ministers, that accused Sullivan of overseeing mob violence against civil rights protesters.

There were minor factual errors in the ad. Yet the essence of the charges was true; Sullivan was complicit in violence against civil rights activists. Under Alabama’s strict libel laws, Sullivan won a jury verdict of $500,000, enormous by the standards of the day.

Other segregationist officials followed Sullivan’s lead and filed suit against the Northern press. By 1961, the New York Times confronted twelve massive libel suits brought by segregationist officials, including Birmingham’s Bull Connor. CBS and the Associated Press, among others, faced over $288 million in damages for their civil rights reporting. Newspapers pulled reporters from the South for fear of inviting libel lawsuits.

The libel suits also jeopardized the Southern Christian Leadership Conference. As the segregationists intended, defending the libel suits tied up time and money that it needed for its desegregation campaigns, including Freedom Rides and sit-ins at segregated facilities. King described the libel suits as a “civil rights crisis” and “potent weapon in the arsenal of the segregationists.”

Recognizing the threat that libel law posed to the press and to the civil rights movement, the Supreme Court threw out Sullivan’s verdict and ended the segregationists’ “libel attack.” Sullivan saved the SCLC from destruction, and it enabled the press to report on the civil rights movement. Sullivan was one the most consequential Supreme Court decisions for the advancement of civil rights.

Under Sullivan’s “actual malice” rule, an official cannot win a libel suit unless they can show that the statement was made with knowledge that it was false, or “reckless disregard of whether it was false or not.” Acknowledging that powerfully placed citizens who are not public officials can affect social governance as much as elected officials, the Court later extended the actual malice rule to speakers commenting on “public figures.”

Commentators have pointed out the imperfections of the Sullivan regime. Because the standard is “reckless disregard” of whether a statement was false, it technically protects careless reporting. Moreover, a person who is only tangentially involved in public affairs, through making comments on social media, for example, could be a “public figure” in libel law and have lesser protection for their reputation. Today, reputations can be easily and permanently injured online, and libel law does not offer a ready path to recourse.

These flaws should not detract from the wisdom of Sullivan. As the Sullivan story makes clear, libel law before Sullivan held the potential to destroy news media seeking to hold officials accountable and to inform the public about critical issues of the day. It had a “chilling effect” on citizens seeking to use free expression to achieve social justice. The Supreme Court in 1964 saw vividly how libel law could be used to persecute critics of government and the status quo— how libel suits could be mobilized to stifle public discourse and to impede social change.

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