New York Times v. Sullivan

Professor Samantha Barbas traces how New York Times v. Sullivan reshaped libel law, empowered investigative reporting, and protected the civil rights movement, then tests the standard against today’s social media landscape. She unpacks “actual malice,” reputation, and current calls to revisit the ruling.

What you will learn in this episode:

• what libel is and why it matters
• the meaning of actual malice as reckless disregard
• civil rights origins of the Sullivan decision
• how the ruling liberated investigative journalism
• modern critiques from reputation to originalism
• social media’s global scale of harm
• protection for journalists, bloggers, and everyday speakers
• the ongoing balance between speech and reputation

 Actual Malice Civil Rights and Freedom of the Press in New York Times v. Sullivan. 

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Transcript

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Setting The Stage: Sullivan

SPEAKER_00 1:33

Okay, thank you.

unknown 1:34

Okay.

SPEAKER_00 1:35

All right. Professor Barbas, thank you so much for being here. So we're talking about New York Times versus Sullivan. For listeners that are new to this case, what is New York Times versus Sullivan and why was it such a pivotal moment for press freedom?

SPEAKER_01 1:52

New York Times versus Sullivan was a 1964 decision by the Supreme Court that instituted First Amendment protections in libel law. So before 1964, libel laws had been very strict. It was very risky for a newspaper to criticize a public official or public figure because they could be slapped with a libel suit and they had no First Amendment defense. So what Sullivan did was that it gave substantial protections to the press and really to all speakers to criticize public officials, to maybe

What Libel Means

SPEAKER_01 2:24

make mistakes in the course of their reporting and still not be punished with a massive libel suit and libel judgment. So historians generally agree that this was one of the most important cases, liberating the press in America and really for freedom of speech more generally.

SPEAKER_00 2:43

And for our listeners who don't know what the word libel means, can you define that for us?

SPEAKER_01 2:48

Yeah, so libel is written defamation. So a statement that is defamatory injures a person's reputation severely. So newspapers used to get sued for libel. They're still getting sued for libel when somebody complains that a statement issued by the newspaper has injured their reputation so severely that they've lost standing in their communities.

SPEAKER_00 3:14

So in your book, Actual Malice, it challenges some of the common assumptions about this case. What do people often misunderstand about Sullivan and the actual malice standard?

SPEAKER_01 3:26

Yeah, there are many things about the Sullivan ruling that are confusing. And one you just mentioned is the actual malice standard. So the term that the Supreme Court used to define this new speech protective standard it instituted was actual malice. And it's a confusing term because in the law, when we think of malice, we think of ill will, spite, hatred, right? The defendant is intending to harm the plaintiff. But in this context of First Amendment law, actual malice means reckless disregard of the truth.

Demystifying Actual Malice

SPEAKER_01 4:00

So what Sullivan said was that somebody, a public official bringing a libel case, has to show that the newspaper or speaker actually knew the statement they were making was untrue, or they had strong reason to believe it was untrue and went ahead and made the statement anyway. So we're not looking at spite, but looking at what the speaker knew or knew about the statement that they were making about the plaintiff. And another thing that people often get wrong about Sullivan is that they think that this was just kind of a random free speech case that emerged out of nowhere. And it was really intimately connected to the civil rights movement. And that was one of the main points of my book. That New York Times versus Sullivan isn't just a story about freedom of speech and press, but it's really a civil rights story. It's a story about how the civil rights movement was getting quashed by these major libel lawsuits, frivolous libel lawsuits that were being brought against it by segregationist officials that wanted to shut down the movement and wanted to shut down newspapers like the New York Times that were writing favorably about the civil rights movement. So the way I tell the story of Sullivan, it's an intertwined story of civil rights and free speech. And it really underscores why freedom

Sullivan’s Civil Rights Roots

SPEAKER_01 5:25

of speech and press are so important to protect social movements, activists who are fighting for social justice, because they can very easily be shut down by lawsuits and laws aimed at suppressing their speech.

SPEAKER_00 5:43

So, how did this ruling then reshape journalism in America?

SPEAKER_01 5:48

The effects were profound. I interviewed some media lawyers and journalists who were around at the time, and they said the newsroom was liberated. Journalists now felt free to write critically about public officials and other people's people in power because they knew they didn't have this burden of being worried about libel suits over the slightest comment. They now have this very powerful First Amendment defense. And so we get the rise of investigative journalism right after Sullivan as journalists are emboldened. I think reporting on the Vietnam War that was very critical of the government probably would not

How The Ruling Changed Newsrooms

SPEAKER_01 6:29

have happened if the press didn't have the protections of Sullivan. We get more reporting on the civil rights movement and other controversial social movements. So it had an immediate and substantial effect on the way reporters conducted their work.

SPEAKER_00 6:49

So today there is renewed debate about revisiting Sullivan. What is driving that conversation and what could change if that standard was weakened?

SPEAKER_01 6:59

Yeah, so there have been critiques of New York Times versus Sullivan since practically the day it was handed down. And one of the major criticisms has been that this law doesn't adequately protect reputation. So I think we can all agree that people have a right to a good reputation, that our reputations are very important to us, to our social standing and to our ability to have a job or an education. So some say, well, the Sullivan standard gives too much protection to the press and not enough protection for people who may have really been defamed or

Modern Push To Revisit Sullivan

SPEAKER_01 7:35

harmed by something that was published about them. So, but in addition to that, we've seen some more recent criticisms that are slightly different. So many of the criticisms of Sullivan today are kind of coming from the political right. And many on the right have argued that the press today is too liberal and left-leaning, and they are unfairly criticizing figures on the right, and that this is an abuse of freedom of the press, and we need to change Sullivan to kind of correct that balance between press freedom and the protection of reputation. Some today have been making the argument that we live in a new communication environment compared to 1964 when Sullivan was decided. We now have social media. And as we know, social media can inflict very grave harms to people's reputations. Someone can be permanently defamed on a global scale, you know, if something goes viral. So they argue that in light of those changes, we need to again rethink this balance and give more protection to people who have been harmed. And then finally, some are making an originalist critique of New York Times versus Sullivan. They are saying, you know, if we go back and we look at what the framers of the First Amendment were thinking about, they never envisioned anything like a reckless disregard of the truth standard. Back in the day, libel laws were

Social Media, Students, And Protection

SPEAKER_01 9:05

very strict. No one seemed to have a problem with it. No one thought that the First Amendment had anything to do with libel law. So that's another critique that's been getting a lot of traction lately, is that Sullivan is just not justified by a historical reading of the First Amendment.

SPEAKER_00 9:22

I'm glad you brought up social media because I know some of our listeners, especially some who are still in school, would wonder, you know, what does this look like on social media? And because, you know, we've talked about all these Supreme Court cases in our podcast, this one is specifically talking about freedom of the press and speech. We're not talking about normal citizens, right, who are writing things on social media. That is not what this covers. Is that correct?

SPEAKER_01 9:49

Actually, it does protect people. It protects journalists, it protects bloggers, it protects anyone who may be making a statement that is critical of a public figure. And so, yes, Sullivan does protect social media speech, it protects speakers, but some are saying, well, let's also think about the victims, the people who are characterized unfairly and the harm that they experience that can be so profound. And so again, you know, Sullivan strikes a particular balance. It's more protective of speech than it is of reputation. But again, because of social media, some are saying we need to think more about those real profound harms.

SPEAKER_00 10:34

Professor Barbas, thank you so much. And listeners, I will be linking the book Actual Malice Civil Rights and Freedom of the Press in New York Times versus Sullivan, which was named one of the New Yorkers' best books of 2023. Professor Barbas, thank you so much for your expertise. It is greatly appreciated. Thank you.