Is New York Times v. Sullivan, the case in which the Supreme Court sharply limited libel suits by public officials—a group later expanded to “public figures”—now on shaky ground?

　　Not long ago that would have been unthinkable. But nowadays, particularly in the wake of a stiff and scholarly Clarence Thomas dissent in McKee v. Cosby, it’s become so thinkable that people are thinking it, and writing about it, and even publishing books about it.

　　The book in question is Carson Holloway’s No Liberty to Libel: The Constitutional Case against New York Times v. Sullivan. Holloway’s book is a closely reasoned polemic against a decision that is wildly popular with the media and intelligentsia, but that has always been, in terms of actual law, on shaky ground.

　　Sullivan revolved around an advertisement published by the Times, titled “Heed Their Rising Voices,” and designed to raise money for civil rightsleader Martin Luther King and civil rights efforts in the South. The advertisement, drafted by Bayard Rustin, contained a narrative of events that took place in Montgomery and Birmingham involving police, government entities, and protesters.

　　The advertisement contained a number of factual errors. For example, the campus dining hall was never padlocked to starve student protesters out; police did not “ring” the Alabama State campus with shotguns and tear gas; student protesters on the Capitol steps sang the National Anthem, not “My Country ‘Tis of Thee,” etc. Ordinarily, the Times’s Advertising Acceptability Department would have fact-checked the ad, but the many illustrious signatories overwhelmed its skepticism.

　　Montgomery police commissioner Sullivan, claiming that the advertisement’s critique of the police was effectively an attack on him, sued for libel. He had a strong case.Under the libel law of the time, which was roughly the same in every state, including Alabama, a publisher of false and defamatory statements was subject to a judgment for libel unless the publisher could show that the statement was true in every respect. Showing that the overall gist was true despite the presence of genuine factual errors wasn’t enough.The Times’s failure to fact-check the ad as per its usual practices (the paper’s morgue, containing stories from the Times itself that would have demonstrated the errors, was just one flight of stairs up from the Advertising Acceptability Department) made negligence hard to dispute.

　　A Montgomery jury awarded $500,000 against the Times, a sore blow at a time when the paper was facing financial problems. What’s worse, this was one of many such suits, brought against national media as part of a coordinated strategy by southern segregationists to punish hostile coverage. That strategy had been pretty successful at muting hostile coverage.

　　The case of course wound up before the Supreme Court, with Sullivan’s lawyer, Harvard-educated Roland Nachman, saying that the only way for him to lose was for the Court to change the law.

　　And that’s exactly what happened: In a unanimous opinion authored by Justice William J. Brennan, the Supreme Court changed the law. (Anthony Lewis reports in his book on the case, Make No Law, that Justice Harlan joined at the last minute, despite deep doubts, to keep from fracturing the Court’s stance.)Deciding that the libel law of the past 150-plus years offered too much power over national media to local officials (and juries), the Court established a new rule: Where a public official claimed libel, he/she would have to show that the publisher acted with “actual malice,” meaning knowledge of falsity, or a “reckless disregard” as to whether the report was true or not. The “actual malice” standard was an entirely new invention of the Court, and wasn’t even argued by any of the parties.Brennan chose that standard because he knew the Times would lose on a negligence standard, since it had in fact been negligent.Brennan tried to make the actual malice standard sound like a rule that already obtained in a few states, but in fact he was not importing a standard already at work in some places. He was creating one. This change, predicted by Nachman, is the target of Holloway’s book.

　　Where Samantha Barbas’ recent book, Actual Malice, is a spirited romp through the histories and personalities involved in the case, Holloway’s book is tightly focused on close legal analysis.(Both books are excellent.)

　　Holloway notes numerous flaws, and misrepresentations, in the Court’s opinion. To begin with, since Commissioner Sullivan wasn’t named in the ad, it’s a real stretch to accept that complaints about police practices constitute a personal attack on him.Even the Court admits thisen passant, but, as Holloway notes, if the Court had done the obvious thing and dismissed the case on that ground, it wouldn’t have been in a position to make new law, which was its obvious goal.

　　Holloway’s book will be a powerful resource for those seeking to overturn the current arrangement.

　　Holloway then walks through a number of justifications offered by Justice Brennan, the majority opinion author, and finds all of them specious. Brennan reaches back to the Sedition Act, suggesting that what he characterizes as a universal admission that it was unconstitutional serves as a precedent for limiting libel judgments in favor of public officials. Brennan notes that the Supreme Court never ruled on the issue, but that the judgment of history is clear.

　　Holloway points out that quite a few lower courts did rule favorably on the Sedition Act and quotes Supreme Court Justice James Iredell, then sitting in Circuit Court (as justices did back then), as charging a jury that the law was justified as a means of preventing insurrection. Iredell in fact suggested that republics needed protection against libels of public officials more than monarchies did: “Take away from a republic the confidence of the people, and the whole fabric crumbles into dust.” Iredell also noted that the wording of the press freedom clause in the First Amendment, which forbids Congress from abridging the freedom of the press, was less absolute than the language in the next clause, which forbids Congress from making laws respecting an establishment of religion.

　　Iredell also, like virtually all of the founders, adopted the Blackstonian definition of press freedom, which held that such freedom consists only in the absence of prior restraints on publication. Iredell concluded that there was “a universal concurrence in America on this point that the freedom of the press does not require that libelers should be protected from punishment.”

　　Nor was there even a hint that public figures should somehow enjoy fewer rights under the law of libel. Holloway goes on to examine many other early authorities, most notably Chancellor Kent, and their views that strict libel laws were, in fact, essential to the protection of a free republic. And that view was pretty much universal. Writes Holloway: “It is no exaggeration to say that American courts continued to handle libel cases involving public figures according to traditional standards right up to the moment that the Supreme Court announced its novel doctrine in New York Times v. Sullivan.”

　　As Nachman said, he lost because they changed the law. And, I think it’s fair to say that they changed the law because the Court—and in particular Justice Brennan—favored the role of the institutional press in American society and wanted to create a more favorable environment for that industry. I have speculated elsewhere (in my The Judiciary’s Class War) that the justices, being drawn from the same educated gentry class as the editors of leading newspapers and magazines, deliberately took their side. One can see this in subsequent decisions that expanded the “public official” exception to the far broader and more amorphous “public figure” exception. The effect of this expansion was essentially a subsidy for news media, allowing them to publish more sensationally and with less fact-checking, at the expense of their audiences who were less well informed, and of the people they covered, who were left without a realistic remedy for defamation.

　　The public figure exception, far from promoting free speech, also punishes the “little people” for engaging in free speech. If you “thrust” yourself into public debate (a formulation that carries an undertone of “stay in your place, peasant”), you become a public figure yourself, making it much safer for people to defame you.Even simply accusing Bill Cosby of rape, as in the McKee case, is enough.Safer to keep your mouth shut about your betters. The Sullivan rules don’t promote free speech; they protect the speech of powerful institutions.

　　Holloway calls for Sullivan to be overturned, and for a return to the traditional libel rules that applied before Justice Brennan changed the law. He makes a powerful case, but my own opinion is that the current Roberts Court, which leans more toward Amy Coney Barrett than Clarence Thomas in temperament, is unlikely to take such a sweeping step. After his McKee dissent, Thomas was accused of wanting to “crush the free press,” of impeding the public’s “right to know,” and even of making war on “the very idea of a free press.” All nonsense, of course: To argue that overturning the Sullivan opinion would end the free press would necessarily mean arguing that America lacked a free press before 1964, which is absurd. Yet the Roberts Court has shown that it can be swayed by such statements, and, barring a couple of more appointments of justices in the Clarence Thomas mold (something fervently to be wished for, of course), I think the prospects of an outright overturning of Sullivan are poor.

　　Instead, I think that the Court might return to the “public official” standard and amend the “actual malice” standard to require objectively reasonable care in investigations and reporting. Such a change would achieve much of the good that an outright overturning would. In an afterword, Holloway explicitly dismisses these “prudential” arguments, and on an intellectual level he is right to do so. Fiat justitia, ruat coelum and all that.

　　But in practical lawyering, it’s best to ask for something that you might get, at least as a fallback argument, and not just what you’re entitled to. Regardless, however, I feel confident that when Sullivan is relitigated—and it will be—Holloway’s book will be a powerful resource for those seeking to overturn the current arrangement. My treatment here has barely done justice to the extensive and detailed analysis in No Liberty to Libel, and for those relying on it, the briefs will almost write themselves. A first-rate legal book, and highly recommended.