New York Times v. Sullivan (1964) 376
U.S. 254, is notable for being a multi-faceted diamond. It is a triple whammy.
When the case first came down in 1964, it was a major victory for the civil rights movement towards racial equality in America. The Times had published an advertisement critical of a Southern police department for the way it handled a protest demonstration. Some of the factual claims were erroneous. Newspapers are forever printing mistakes, whether they do a good job of reporting and fact-checking or not.
CBS today fired four veteran television journalists for malpractice over the Dan Rather screw-up in reporting falsely on Pres. Bush's service in the Texas Air National Guard during the Vietnam War. They relied on a source who turned out to be an unreliable rabid partisan who in turn relied on another unreliable source in Germany, who was not revealed or checked out until after it hit the fan.
The local police chief sued the Times, apparently to vindicate his Southern pride and so-called honor, and to teach the Times it was not welcome in the South. The basis for the libel suit was the false ad. He won a lot of money, awarded by a local Southern jury.
Neither the Times nor any other newspaper would be able to cover the biggest story of the day, civil rights, if every time they made a mistake they could be hit for several hundreds of thousands of dollars.
The Times appealed.
The Supreme Court found a way to rule in favor of the Times, despite the given fact that the sheriff had been found by a jury, in an otherwise proper, legal, proceeding, to have been defamed.
To do so the Court had to change the law of defamation by inventing a doctrine called "Malice in the NYT v. Sullivan sense" ever since. It ruled that newspapers were legally entitled to protection from libel verdicts despite false reporting, so long as the lies were not intentional, nor published with 'reckless disregard" as to whether the alleged facts were false. In other words, the reporter and his supervisors didn't care whether what they printed was true or not, they were just out to 'get' some disfavored subject of their piece.
The fact that the plaintiff was the sheriff made all the difference. The Court said that its doctrine applied to protect the publisher when the defamed person was a public official, and later, public figure.
Justice Byron White, who dissented, felt public officials and public figures deserved more protection than that and that the law of defamation ought to provide it. He was a person who valued his privacy despite, or because of the fact that he'd become nationally famous as a college student for being the best football player in the country. He played for the Chicago Bears in the National Football League until he won a Rhodes Scholarship to Oxford, where he met the ambassador, Joseph P. Kennedy, and his son, John F. Kennedy. Stationed in the Pacific during the War, White wrote the report for the Navy on the sinking of JFK's PT-109, giving him a pass for getting cut in half by a Japanese destroyer. PT boats weren't supposed to get cut in half by enemy warships. They were supposed to sink them. JFK appointed White to the Justice Department under A-G Bobby Kennedy, where White negotiated with Southern governors who blocked blacks from entering universities and law schools. He was quite a guy, White, and frequently the subject of media attention, which he did not enjoy. Hence his attitude against the withdrawal, in Times v. Sullivan, of defamation protection for public figures.
We've just seen two aspects of NYT v. Sullivan, the civil rights and the law of defamation. There's a third major aspect.
Justice Sandra Day O'Connor, in her book, The Majesty of the Law, points out that NYT v. Sullivan is authority for a still more important proposition, one that I'd always taken for granted, but never tried to find a case on which to pin it: that we are free in this country to criticize our government officials with impunity. As a kid the argument was that we could say what we liked about our president, but you could get your head chopped off if you criticized Stalin or Hitler. There were stories of German kids turning in their parents. The walls had ears in Germany. But not here.
Yet, when the Sheriff won his defamation suit, that ran counter to what I'd grown up believing as an article of faith. I guess I'd been wrong.
NYT v. Sullivan is the case that set me straight. I have it from Justice O'Conner. This is the case that protects adults and children from any repercussion for criticizing their government or governing officials. This makes the case even bigger than I'd thought. So that's it's third major aspect.
One case has three such significant aspects: civil rights, defamation (malice), and right to criticize public officials with impunity. That doesn't mean you can defame them with false statements of fact, however. It means you can defame them in in opinion column all you want, but opinion is different than fact. There's no such thing as a false opinion. Only the alleged facts on which the opinion may be based may be found false.
This is why you so frequently see the word "alleged," or "allegedly" before a statement such as: "The [political/public figure] was found in bed with a live boy or a dead girl," to quote the famous Huey Long aphorism, in which he said that's the only way he could lose an election, by being found as stated.
What brings this up now is this report in the New York Times about a judge in Massachusetts who was said, by a reporter, to be an easy sentencer, and who once allegedly said to, or in reference to, a rape victim, 14, to "get over it."
The result was a barrage of hate against this judge, a certified public figure, which has produced great emotional distress. His good name has been dragged through the mud of adverse publicity on a hot-button issue. He has to stand for re-election someday, not being a federal judge. He denied the report. He says it was false. He has sued for libel. The matter is coming up for trial. Most defamation suits are thrown out as a matter of law on summary judgment, or settled, we're told.
The case is a perfect vehicle for helping to learn and understand the competing values at issue in NYT v. Sullivan, and why Justice White dissented. Public officials have feelings and reputations deserving of protection, too.
But aren't we members of the public entitled to criticize public officials?
What happens if our facts are wrong? It doesn't take much to turn a lightning-bug into lightning, to paraphrase the master, Mark Twain.
Shouldn't there be a cushion of protection around what we say, so that we're not scared to speak out on a blog such as this?
Do bloggers like me enjoy NYT v. Sullivan protection? I fervently hope so.
What happens if there isn't a cushion of protection around the provocative things I like to say. That's one way to teach, to utter provocative pronouncements. It provokes people into thinking about whether I'm right or wrong. That's the whole idea.
There is a cushion, and NYT v. Sullivan provides it by redefining defamation law. Newspapers can be ordinarily negligent with impunity. They don't get hit with the libel judgment unless and until the jury agrees, and the appellate court beyond them, that the negligence was either so gross as to amount to 'reckless disregard,' or wasn't negligence at all, but intentional disregard of the true facts, i.e. printing lies on purpose to nail someone.
Without that cushion of protection, I'd have to fear being critical, say of A-G nominee Alberto Gonzales. Suppose I got my facts wrong. I'm relying on what I see in the media. I'd be afraid to open my mouth, lift my pen, or do my keyboarding. I would feel the "chilling effect." The law allows me "breathing room" for my freedom to express myself.
These may look like colloquial speech, "chilling effect," and "breathing room," but they've become important legal doctrines. Metaphors such as these are law. They decide whether you can be successfully sued or not. Just the risk of having to defend against a lawsuit, which is expensive, is a chilling effect.
I once had a client who was sued for defamation. She was a lawyer. A cop pulled her over for DUI and she left her common sense at the party, apparently. She later accused the cop of mistreating her. He denied the allegation and sued her for defamation. He didn't want her nasty allegation in his personnel jacket for all time. I defended. Did the research. Wrote a letter. The case was dropped. I'd found some pretty good authority on the subject of protected speech, the right to open your mouth, public officials, etc.
One of the things I learned was that appellate courts can independently review the same facts on which the jury made its decision in defamation cases.
Convicted murderers facing the death penalty don't enjoy that sort of review. With them the appellate courts say they are stuck with what the jury found. They're handcuffed. Not in defamation cases.
Isn't that remarkable?
The news report is also notable for a comment made by one a defense attorney for the publisher, about the conflicting recollections of the protagonists in the dispute over what was actually said.
It's not that anyone is lying, he said, but rather the quality of their memory is different. Witnesses see and hear things differently. The writer is Pam Belluck, the judge is Ernest B. Murphy, and the newspaper is the Boston Herald. The Times article reporting on the case appeared on Sunday, January 9, 2005. Check it out.