SPEAKER_01 0:00

So if we go back to nineteen sixty, um a group of civil rights leaders bought this single full page advertisement in the New York Times. And it was this really passionate plea for support, right? But it contained a few like minor typos.

SPEAKER_00 0:14

Very minor. Trevor Burrus, Jr.

SPEAKER_01 0:15

Yeah. I mean, that it got the name of a song wrong. It uh it's slightly exaggerated the number of police deployed to a protest, just small stuff. But then decades later, the legal shockwave from those specific, seemingly insignificant typos, well, it ended up costing Fox News nearly $800 million.

SPEAKER_00 0:33

Aaron Powell I mean, it really is one of the most incredible butterfly effects in American legal history. Because you know, the distance between a civil rights ad in Jim Crow era Alabama and then a blockbuster settlement over a modern presidential election, it just seems impossible to traverse. But they are actually connected by this single invisible thread.

SPEAKER_01 0:50

Aaron Powell And today we are diving into that thread. Welcome to the deep dive, everyone. We are exploring the hidden, um, I guess you could call it the load-bearing architecture of the First Amendment. Because whether you are, you know, a producer at a major cable news network, an investigative journalist at some legacy newspaper, or honestly, just somebody tweeting from your couch, there is this massive framework dictating exactly what you are allowed to say about the people in power.

SPEAKER_00 1:19

Exactly. And if you step outside those bounds, well, the financial consequences can be completely apocalyptic.

SPEAKER_01 1:25

Yeah. So our mission today is to unpack a single document we're looking at tortsweek nine dot PDF, and we're going to examine the monumental 1964 Supreme Court case, New York Times Cupy Sullivan.

SPEAKER_00 1:36

Trevor Burrus, Right. We're going to dissect the creation of this legal standard known as actual malice, and we'll look at how that exact same 1960s framework was just tested to its absolute limits in 2023. Plus, we'll get into why some legal scholars and even Supreme Court justices today are actively trying to tear it all down.

SPEAKER_01 1:52

But before we take a single step further, I want to, we need to lay down a very clear, very explicit ground rule for this conversation. The historical record we are analyzing today touches on some highly charged, deeply emotional political events, right? We are covering the civil rights movement in the Deep South, and we are tracking this legal doctrine all the way up to the controversies surrounding the 2020 U.S. presidential election.

SPEAKER_00 2:18

Aaron Powell Yeah. And we are entirely agnostic on the politics here. I want to make that super clear. Our goal today is just to act as your guides through the legal mechanics. We are impartially reporting on the facts, the legal arguments, and the court rulings, just as they occurred in the sources.

SPEAKER_01 2:34

Aaron Powell Exactly. We are looking at how the engine of the Constitution was built, you know, and how it operates under pressure. We are not endorsing any political viewpoints.

SPEAKER_00 2:41

Right. We are here for the plumbing, not the politics.

SPEAKER_01 2:44

I love that. The plumbing, not the politics. So to really understand why this revolution and defamation law happened, we have to travel back to a time before 1964. We need to understand what the old regime looked like. Because, I mean, the rules of the game used to be vastly different.

SPEAKER_00 2:59

Aaron Powell Oh, they were practically unrecognizable by today's standards. Historically, state legislatures and courts developed this common law framework that prioritized one specific value above almost all others, and that was reputational protection.

SPEAKER_01 3:14

Okay, so where did free speech fit into that?

SPEAKER_00 3:16

Aaron Powell Well, the idea of free speech, at least when it came to defamation or libel, it was a secondary concern at best.

SPEAKER_01 3:22

Aaron Powell Wow. So paint that picture for us. If I am, say, a newspaper editor in 1950 and I write something critical about a local politician, what am I facing?

SPEAKER_00 3:31

Aaron Ross Powell, you are facing a legal environment that is entirely stacked against you. So under the old rules, and we are going to look specifically at Alabama law here as the prime example, a publication could be deemed libelous per se, simply if the words tended to injure a person and their reputation or you bring them into public contempt.

SPEAKER_01 3:48

Wait, that seems like an incredibly low bar. I mean, any criticism injures someone's reputation, right?

SPEAKER_00 3:53

Yeah, that was a point. And once a plaintiff established that the words were injurious, the law essentially put the entire judicial system on autopilot in favor of the plaintiff.

SPEAKER_01 4:04

Autopilot? What do you mean?

SPEAKER_00 4:06

So the legal injury was simply implied for the bare fact of publication.

SPEAKER_01 4:10

Let's break down what implied really means in a courtroom. If I am the politician suing your newspaper, what do I actually have to prove?

SPEAKER_00 4:19

Honestly, almost nothing. Under that old common law, falsity was presumed. Meaning the court just assumed the newspaper lied.

SPEAKER_01 4:28

You're kidding.

SPEAKER_00 4:28

Nope. Malice was presumed too. The court assumed the newspaper acted with evil intent. And general damages didn't even need to be proven. They were, again, completely presumed.

SPEAKER_01 4:38

Wait, hang on, hang on. If I write an article criticizing you, the court would just automatically presume my article was false, and they would presume I did it maliciously, and they would presume you suffered financial damage without you having to show a single receipt or bank statement to prove it.

SPEAKER_00 4:51

That is exactly the terrifying reality of the pre-1964 landscape. The burden was entirely on the publisher to prove that their statement was true in all its particulars. If the publisher couldn't discharge that burden, if they couldn't prove absolute 100% factual perfection in court, they lost.

SPEAKER_01 5:09

I mean, imagine living under that rule today. Imagine you leave a bad Yelp review for a local restaurant, right? You say the owner was rude and the soup was cold. Under this old framework, the restaurant owner sues you. The court presumes you lied about the soup, presumes you hate the owner, and presumes the restaurant lost money because of your review. It is entirely on you to somehow legally prove the temperature of that soup in a court of law. And if you can't, you are bankrupted.

SPEAKER_00 5:36

It's a great analogy. It created an incredibly dangerous environment for a free press. And that brings us to the specific factual catalyst that forced the Supreme Court to intervene. And the crazy thing is, it wasn't an investigative expose by some star reporter.

SPEAKER_01 5:50

Right.

SPEAKER_00 5:50

It wasn't a fiery editorial written by the publisher. It was a paid commercial advertisement.

SPEAKER_01 5:55

March 29th, 1960, the New York Times runs a full-page advertisement. It is paid for by a group calling themselves the Committee to Defend Martin Luther King and the struggle for freedom in the South.

SPEAKER_00 6:07

And the ad carried the headline, Heed Their Rising Voices.

SPEAKER_01 6:10

Right. And the historical record details the exact purpose of this ad. It was an appeal for funds, basically. They were raising money to support student protests, to support voting rights initiatives, and specifically to fund Dr. Martin Luther King Jr.'s legal defense against a perjury indictment that was pending in Montgomery, Alabama at the time.

SPEAKER_00 6:30

Yeah, and to give the appeal some gravitas, the ad carried the names of 64 prominent figures. We were talking about major names in public affairs, religion, trade unions, the arts. Furthermore, below the main text, it included a line endorsing the appeal that was signed by 20 Southern supporters.

SPEAKER_01 6:46

And that list included four black Alabama clergymen, right? So you have this massive national call to action printed in the paper of record. The text of the ad describes this wave of terror that Southern Negro students were facing as they engaged in nonviolent demonstrations for human dignity. And to illustrate this wave of terror, the ad used a few specific paragraphs describing events in Montgomery.

SPEAKER_00 7:11

Specifically the third paragraph and a portion of the sixth paragraph. And this is where the legal gears start grinding. Because, well, it is an uncontroverted historical fact that some of the statements in those two paragraphs were not accurate descriptions of the events that had actually occurred in Montgomery.

SPEAKER_01 7:29

Yeah, and when people hear about a lawsuit that reshapes the United States Constitution, they usually imagine some massive, egregious, intentional lie, you know, like a complete fabrication meant to destroy someone's life. But let's actually look at the errors that were printed. First, the ad claimed that protesting students sang, My country tis of thee on the state capitol steps.

SPEAKER_00 7:48

Right. But the historical reality is that the students actually sang the national anthem.

SPEAKER_01 7:52

Okay, second, the ad claimed that when the student body protested the expulsion of their peers, the campus dining hall was padlocked in an attempt to starve them into submission.

SPEAKER_00 8:03

Which, according to the record, was false. The dining hall was never padlocked. The only students who might have been temporarily barred were a few who hadn't signed pre-registration applications or requested temporary meal tickets. Also, the students didn't protest by refusing to register, like the ad claimed. They mostly just boycotted classes for a single day.

SPEAKER_01 8:24

Got it. Third error. The ad claimed that truckloads of police armed with shotguns and tear gas ringed the Alabama State College campus.

SPEAKER_00 8:32

The reality there was slightly different. Police were deployed near the campus in large numbers on three occasions, yes. But they never actually ringed the campus. Furthermore, they weren't called to the campus in connection with the specific demonstration on the Capitol steps that the ad was referencing.

SPEAKER_01 8:47

Okay, and finally, the ad claimed that Dr. King had been arrested seven times for things like speeding and loitering.

SPEAKER_00 8:52

At that point in time, he had actually only been arrested four times, not seven. And while the ad claimed his home was bombed and his person assaulted, which was tragically true regarding the bombings, the police were not implicated in those bombings. In fact, the police had made efforts to catch the perpetrators. Also, three of Dr. King's four arrests happened before the plaintiff in this libel case even took office. Ah, yes, the plaintiff, L. B. Sullivan. So Sullivan was one of three elected commissioners of the city of Montgomery, Alabama. Specifically, he was the Commissioner of Public Affairs. His duties were to supervise the police department, the fire department, the Department of Cemetery, and the Department of Scales. It's a pretty broad portfolio. Yeah. But if you look closely at the paragraphs we just broke down, there is a glaring omission.

SPEAKER_01 9:38

His name, L. B. Sullivan's name, is literally nowhere in this advertisement. Not his name, not his official title as Commissioner of Public Affairs, nothing. So wait, if his name isn't even in the ad, how on earth is he legally allowed to sue the New York Times and four individual clergymen for libel? I mean, how do you claim your reputation was destroyed by an article that doesn't even acknowledge your existence?

SPEAKER_00 10:03

Right, and this is the perfect illustration of how heavily the common law favored reputational protection at the time. Sullivan's legal logic, which by the way, the Alabama courts fully endorsed, was built entirely on inference.

SPEAKER_01 10:15

Okay, how so?

SPEAKER_00 10:16

He argued that the word police in that third paragraph inherently referred to him because he was the Montgomery commissioner who ultimately supervised the police department.

SPEAKER_01 10:24

So by saying the police ringed the campus with shotguns, the ad was effectively accusing him personally of ringing the campus.

SPEAKER_00 10:31

Yes, exactly. And he went even further. He claimed that the public would read that paragraph and naturally impute the padlocking of the dining hall to the police, and therefore to him. Then he pointed to the other paragraph, which stated, They have arrested him seven times, and they have answered Dr. King's peaceful protests with intimidation and violence. Sullivan argued that since police officers are ordinarily the ones who make arrests, the pronoun they obviously meant the police. And if they meant the police, they meant Sullivan.

SPEAKER_01 11:01

That is wild. He is arguing that this national advertisement accused him personally of intimidation, violence, and attempting to starve college students into submission, entirely based on the pronoun they and the word police. Did anyone actually believe that? Functionally?

SPEAKER_00 11:15

Well, he managed to bring in six Montgomery residents who testified during the trial. And they stated that they read some or all of the statements as referring to him in his capacity as commissioner. And under Alabama law at the time, if the plaintiff was a public official, their place in the governmental hierarchy was considered sufficient evidence to support a finding that their reputation was affected by statements reflecting upon the agency they were in charge of.

SPEAKER_01 11:41

That is a staggering inferential leap. I mean, think about the implications of that for a second. It essentially means that any criticism of a government department is automatically a personal defamatory attack on the elected official at the top of the org chart. Right. If a newspaper says the Department of Motor Vehicles has terrible customer service, the head of the DMV can sue the newspaper for personal defamation and claim the paper called them terrible.

SPEAKER_00 12:06

Exactly. And that inferential leap set the stage for a trial that became an existential threat to the national press in the United States.

SPEAKER_01 12:13

We have to look at the trial court's verdict because it is just breathtaking. The jury in the Circuit Court of Montgomery County didn't just find in favor of Sullivan. They awarded him exactly what he asked for: five hundred thousand dollars in 1960.

SPEAKER_00 12:28

Yeah. Against all the petitioners, the New York Times and the four individual black clergymen whose names were on the ad, and the Supreme Court of Alabama affirmed that judgment.

SPEAKER_01 12:38

But the way they arrived at that verdict is what really exposes the danger of the old system. The instructions the judge gave to the jury were just a masterclass in stacking the deck. The judge explicitly instructed the jury that the statements were libelous per se, and because they were libeless per se, all those presumptions we talked about earlier kicked in falsity. Presumed, malice, presumed, general damages, presumed.

SPEAKER_00 13:02

And here's the most incredible detail from the trial record.

SPEAKER_01 13:10

Let's translate that for a second. A pecuniary loss means a financial loss. He didn't prove this ad cost him a single dime out of his own pocket.

SPEAKER_00 13:17

None. He brought in one former employer who testified that, you know, if he had believed the statements in the ad, he doubted he would want to be associated with Sullivan. But neither this witness nor any of the other witnesses testified that they actually believed the statements referred to Sullivan.

SPEAKER_01 13:32

So let me get this straight. But he walks away with half a million dollars because malice and damages were just assumed by the court.

SPEAKER_00 13:45

That is the raw power of the old common law. Now, to be fair, Alabama law did state that you needed proof of actual malice to get punitive damages. And the judge did say mere negligence wasn't enough for that. But the judge refused to require the jury to differentiate between compensatory damages and punitive damages in their final verdict. So it's just a flat, massive $500,000 award.

SPEAKER_01 14:08

$500,000 is a massive amount of money, especially in 1960. But you know, for a giant legacy corporation like the New York Times, is it really an existential threat? I mean, they are a massive company. Could one judgment really destroy them?

SPEAKER_00 14:22

If this had been an isolated incident, perhaps they could have absorbed it. But this was not an isolated incident. This was a coordinated strategy of extortion by litigation. Wow. Yeah, the historical record notes that at the time of this appeal, there were eleven other libel suits pending by local and state officials in Alabama against the New York Times, seeking a total of five million six hundred thousand dollars. Plus, there were five similar suits pending against CBS seeking another one point seven million.

SPEAKER_01 14:51

Over seven million dollars in the 1960s. That is the kind of money that bankrupts a media empire. It is a brilliant, terrifying, and incredibly effective strategy. You don't need to pass unconstitutional laws to censor the press. You don't need to send police to shut down the printing presses. You just let local juries bleed the publishers dry in civil court until they can no longer afford to write about your state.

SPEAKER_00 15:13

Exactly. And the United States Supreme Court recognized this dynamic perfectly. To understand the gravity of what Alabama was attempting to do through civil litigation, the Supreme Court drew a direct historical parallel to one of the most controversial, universally condemned laws in American history, the Sedition Act of 1798.

SPEAKER_01 15:33

This is a fantastic historical anchor. Let's explore the Sedition Act because it provides so much context for why the Supreme Court reacted the way it did.

SPEAKER_00 15:41

Right. So the Sedition Act was passed during the presidency of John Adams. It made it a federal crime, punishable by a $5,000 fine and up to five years in prison to publish any false, scandalous, and malicious writing against the government of the United States, either House of Congress or the President, with the intent to defame them or bring them into contempt or disrepute.

SPEAKER_01 16:02

So it was essentially a law making it illegal to criticize the federal government.

SPEAKER_00 16:05

Exactly. Now, the Act did allow truth as a defense, which was considered progressive at the time, but it was still vigorously condemned by Thomas Jefferson and James Madison as blatantly unconstitutional. They argued it violated the First Amendment. In fact, when Jefferson won the presidency, he immediately pardoned everyone who had been convicted under the Sedition Act and remitted their fines, famously calling the law a nullity.

SPEAKER_01 16:30

So the Supreme Court in 1964 is looking at this $500,000 civil verdict in Alabama and comparing it to criminalizing speech under the 18th Century Sedition Act, but the court actually found Alabama's civil libel law to be worse than the criminal statute. How is getting sued in a civil court worse than the federal government throwing you in a damp prison cell?

SPEAKER_00 16:51

Because of the procedural safeguards, or rather the complete lack of them in a civil trial. In a criminal trial, even under the Sedition Act, or under Alabama's own criminal libel laws at the time, a defendant had the protection of a grand jury indictment. The state had the burden of proof beyond a reasonable doubt. And the maximum fine under Alabama's criminal libel law was $500.

SPEAKER_01 17:11

Right.

SPEAKER_00 17:11

But in this civil action, in this civil action, the judgment awarded without any need for the plaintiff to prove a single dollar of actual financial loss, remember, was 1,000 times greater than the state criminal fine. It was 100 times greater than the Sedition Act's maximum fine.

SPEAKER_01 17:29

And there are no double jeopardy protections in civil lawsuits. You can't be tried twice for the same crime, but as we just discussed, there were 11 other lawsuits waiting in the wings for the exact same publication.

SPEAKER_00 17:40

Precisely.

SPEAKER_01 17:57

It is the ultimate chilling effect. Imagine you are a newspaper editor in 1961. You get a tip about a major civil rights abuse happening in a southern city. You know the story's important. But you also know that if you get a single detail wrong, if a reporter says a protest happened on Tuesday instead of Wednesday, or misidentifies the song a crowd was singing, the city commissioners will sue you in front of a local jury and bankrupt your entire company. You wouldn't wait for the court to shut you down, you would shut yourself down. The polyphere instantly causes self-censorship.

SPEAKER_00 18:30

That is the exact term the court used, self-censorship. And that brings the Supreme Court to a breaking point. They realize they have to intervene to stop this runaway train, so they take a judicial sledgehammer to the common law of defamation as it applies to public officials, radically shifting the balance of power away from reputational protection and toward free speech.

SPEAKER_01 18:49

Let's look at how Justice William Brennan, writing for the majority, dismantles the old regime. What is the philosophical foundation of his ruling?

SPEAKER_00 18:57

The court starts with a foundational premise that has since become the bedrock of American journalism. They declare that they are considering this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open. And they explicitly acknowledge that this debate may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. Uninhibited, robust, and wide open. That phrase is legendary. But the court still had to address the elephant in the room. The ad wasn't perfect. It contained actual documented factual errors. The students sang the national anthem, not my country tis of thee, the dining hall wasn't padlocked. How does the Supreme Court justify protecting speech that is demonstrably factually false? This is where the court's logic is brilliant. They argue that forcing a critic to guarantee the absolute truth of every single factual assertion on pain of unlimited libel judgments is incredibly dangerous. As we just discussed, it leads to self-censorship. If you put the burden of proving absolute truth entirely on the speaker, they will, in the court's words, steer far wider of the unlawful zone.

SPEAKER_01 20:08

I love that phrase, steering far wider of the unlawful zone. Think about driving on a highway. If the speed limit is 65 miles per hour and the penalty for going 66 is a $50 ticket, most people will drive 65 or maybe 68. But if the penalty for going 66 miles per hour is that the state seizes your car, bankrupts your family, and ruins your life, you aren't going to drive 65. You were going to drive 40. You were going to see you're so far clear of the limit that traffic grinds to an absolute halt. The Supreme Court realized that public debate was grinding to a halt because publishers were terrified of crossing the line.

SPEAKER_00 20:39

Exactly. To prevent that, the court ruled that factual error alone does not remove the constitutional shield from criticism of official conduct. And defamatory content alone doesn't remove it either. Even the combination of the two factual error and defamatory content is inadequate to strip away First Amendment protections when discussing a public official. The Consecution requires breathing space for free expression to survive.

SPEAKER_01 21:04

Which gives birth to the new rule, the standard that changes everything. The Supreme Court says a public official cannot recover damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice.

SPEAKER_00 21:18

Yes, the actual malice standard. It is the cornerstone of modern defamation law. And we need to pause here and do a crucial deep dive into this specific phrase, because actual malice is one of the most confusing misnomers in the entire legal dictionary.

SPEAKER_01 21:31

It really is. Because when an ordinary person hears the phrase actual malice, it sounds like a Disney villain. It sounds like someone rubbing their hands together with ill will, laughing menacingly, while they write a newspaper article specifically to ruin someone's life out of sheer personal hatred.

SPEAKER_00 21:49

Aaron Powell Right. That is the colloquial understanding of the word malice. But the legal record provides a fantastic clarification by distinguishing between common law malice and Constitutional actual malice. Common law malice is exactly what you just described: ill will, spite, and intent to harm. It is entirely concerned with the publisher's attitude toward the plaintiff.

SPEAKER_01 22:11

But New York Times v. Sullivan actual malice is entirely different.

SPEAKER_00 22:15

Aaron Powell Completely different. Constitutional actual malice is exclusively concerned with the publisher's attitude toward the truth.

SPEAKER_01 22:21

Aaron Powell Let's drill down into the exact, strict definition of this, because this is the magic formula that governs our media today. To prove actual malice, the public official must prove that the publisher made the statement in one of two very specific ways. What are they?

SPEAKER_00 22:35

Number one, with knowledge that it was false, meaning before the publisher hit the print button or before the anchor went on the air, they knew for an absolute fact that the statement was a lie and they published it anyway. Aaron Powell. Or number two, with reckless disregard of whether it was false or not, meaning the publisher entertained serious doubts as to the truth of the statement, or they had a high degree of awareness of its probable falsity, and they simply didn't care. They turned a blind eye, ignored the warning signs, and published it anyway. Trevor Burrus, Jr.

SPEAKER_01 23:05

Attitude toward the truth, not attitude toward the person. So I might hate the mayor, I might want to see him lose the election. But if I publish a terrible rumor about him that I genuinely, honestly believe to be true, even if I am totally wrong and my research was super sloppy, I did not act with actual malice.

SPEAKER_00 23:21

Aaron Powell Correct. Your hatred of the mayor is common law malice. But because you believe the rumor was true, you lacked constitutional actual malice. Therefore, you were protected by the First Amendment.

SPEAKER_01 23:32

Aaron Powell So having established this incredibly high new bar knowledge of falsity or reckless disregard for the truth, how did the New York Times actually fare under it? I mean the Supreme Court didn't just invent the rule and send the case back down to Alabama for a do-over, did they?

SPEAKER_00 23:48

No, they didn't. They reviewed the evidence themselves to see if Sullivan could meet this new standard. The court stated that they had a constitutional duty to make certain the principles were properly applied to the facts. And when they reviewed the trial record, they found the evidence constitutionally insufficient to support the judgment for Sullivan.

SPEAKER_01 24:07

Let's break down why. Why did the New York Times act with actual malice?

SPEAKER_00 24:11

We have to look at the internal mechanics as how the ad was published. The Times published it upon an order from a reputable New York advertising agency, which was acting for the signatory committee. The agency submitted the ad with a letter from A. Philip Randolph, who was the chairman of the committee. And Mr. Randolph was known to the Times advertising acceptability department as a highly responsible, credible person.

SPEAKER_01 24:32

So the Times gets a letter from a reputable civil rights leader submitted by a reputable agency, and the manager of the advertising department testified that he approved the ad because he had no reason to believe anything in it was false, and it was endorsed by people whose reputations he had no reason to question.

SPEAKER_00 24:49

Exactly. There was no reckless disregard, because there were no obvious red flags that would cause them to entertain serious doubts. However, there is a detail in the historical record that looks, at first glance, like a massive smoking gun against the New York Times.

SPEAKER_01 25:05

Yes. If you read through the evidence, there is a wild revelation. Neither the manager of the advertising department nor anyone else at the Times made an effort to confirm the accuracy of the ad by checking it against recent news stories in their own filing cabinets. The Times had reporters covering the civil rights movement. They had articles detailing exactly what happened in Montgomery. Wait, if the Times had news stories in their own building, written by their own reporters, that contradicted the ad point? Doesn't that mean the Times, as an institution, knew it was false? If the truth is literally in a filing cabinet down the hall, isn't that knowing falsity?

SPEAKER_00 25:42

It is a brilliant question, and it gets to the extreme nuance of how the court views a corporation versus an individual. The court reasoned that institutional knowledge does not equal personal actual malice. The mere presence of true stories in the filing cabinets in the newsroom doesn't establish that the Times knew the ad was false. The specific state of mind required for actual malice has to be brought home to the specific persons in the Times organization who had the responsibility for publishing that specific advertisement.

SPEAKER_01 26:11

Oh wow. So because the guy sitting in the advertising acceptability department didn't personally have the news department's articles memorized, he didn't have actual malice?

SPEAKER_00 26:18

Correct. The failure of those specific advertising employees to walk down the hall, open the filing cabinets, and cross-reference the ad against previous reporting was, at worst, negligence. They relied on the good reputation of the sponsors, they were sloppy, they failed to discover the misstatements. But as the court explicitly and forcefully stated, negligence is not actual malice. Negligence is not constitutionally sufficient to show reckless disregard for the truth.

SPEAKER_01 26:46

That is a massive, impenetrable shield for publishers. Failing to investigate thoroughly, just being careless or rushed, does not cost you First Amendment protection. But what about the retraction? The record notes that Sullivan sent a written demand for a retraction, which was a procedural requirement under Alabama law to get punitive damages. The individual clergyman ignored it. The Times wrote back to Sullivan saying they were puzzled how the ad reflected on him and asked for an explanation. Sullivan just sued a few days later, but then the Times did publish a retraction for someone else.

SPEAKER_00 27:17

Yes, they published a full retraction upon the demand of Governor John Patterson of Alabama.

SPEAKER_01 27:21

Doesn't that show common law malice? I mean they retracted for the governor, but refused to retract for the local commissioner. Isn't that them essentially admitting they knew the ad was wrong, but they just wanted to stick it to Sullivan?

SPEAKER_00 27:33

The court reviewed that as well and concluded it did not show malice. The explanation given by the Secretary of the Times was deemed entirely reasonable. The Times explained they retracted for the governor because they didn't want the paper to be perceived as an attack on the state of Alabama as a whole, and the governor was the embodiment of the state. Plus, by the time the governor demanded his retraction, they had actually investigated and learned more of the facts. But regarding Sullivan, they honestly didn't think any of the language in the ad referred to him in the first place. Therefore, failing to retract for Sullivan wasn't malicious. It was based on a reasonable doubt that the ad was even about him.

SPEAKER_01 28:11

Which brings up the final nail in the coffin for Sullivan's case. The court addresses the of and concerning failure.

SPEAKER_00 28:18

This goes back to that inferential leap we discussed earlier, where Sullivan claimed the word police meant him. The Supreme Court completely rejected that logic. They pointed out that some of the allegedly libelous statements, like padlocking the dining hall, bombing Dr. King's home, the perjury prosecution, didn't even concern the police at all. It was entirely unreasonable to read those statements as accusing Sullivan of personal involvement.

SPEAKER_01 28:43

And even for the statements that did concern the police, the court essentially said, look, you cannot just assume an impersonal attack on a government agency is a personal attack on the guy running it. There is no, as the court brilliantly phrased it, legal alchemy that allows a government official to magically transform a criticism of government operations into a libel against them personally.

SPEAKER_00 29:04

Because if they allowed that legal alchemy to exist, it would strike at the very center of free expression. Any good faith critic of government could be penalized just by mentioning a government department. So the evidence was insufficient to support a finding that the statements referred to Sullivan, and it was insufficient to show actual malice. The New York Times wins. The judgment is reversed.

SPEAKER_01 29:27

It is a total sweeping victory for the press. The majority opinion by Justice Brennan creates this high bar of actual malice, and it saves the New York Times from financial ruin. But um, not everyone on the Supreme Court thought this was a total victory. In fact, some justices thought Brennan didn't go nearly far enough in protecting speech.

SPEAKER_00 29:46

Right. This is where we examine the concurring opinion written by Justice Hugo Black, which was joined by Justice William O. Douglas. Now they concurred in the result, meaning they agreed the half million dollar judgment against the time should be reversed, but they fiercely disagreed with how the majority reached that conclusion.

SPEAKER_01 30:02

Justice Black essentially looks at the new actual malice standard and says, this is a nice idea, but it is fundamentally flawed. Why did he think actual malice wasn't a good enough shield?

SPEAKER_00 30:13

Black argued that malice is an elusive abstract concept. Yes, the majority defined it as knowing falsity or reckless disregard, but it still relies on analyzing a person's internal state of mind. It's hard to prove you had malice, but it's also incredibly hard to disprove it. Because the standard relies on a subjective mental state, it still leaves the door open for massive lawsuits, for years of discovery, for dragged-out trials. He called the actual malice requirement an evanescent protection, meaning it's fleeting, it's vaporous, it might vanish right when you need it most.

SPEAKER_01 30:46

So what was his alternative? What did Justice Black want the rule to be?

SPEAKER_00 30:49

Justice Black believed that the first and fourteenth Amendments didn't just limit a state's power to award damages in these cases. He believed they completely prohibited a state from doing so. He voted to reverse exclusively on the ground that the Times and the individual defendants had an absolute unconditional constitutional right to publish their criticisms of the Montgomery agencies and officials. Absolute immunity.

SPEAKER_01 31:11

He wanted a rule that said if you are criticizing a public official's public duty, you simply cannot be sued for defamation. Period. No exceptions for malice, no exceptions for knowing lies, no exceptions for sloppy reporting. Absolute immunity.

SPEAKER_00 31:25

And he grounds this absolute uncompromising stance in the real-world stakes of the time. The historical record provides a vivid look into black's reasoning. He highlights the backdrop of the civil rights movement. He explicitly points out the widespread hostility in places like Montgomery toward desegregation, and how this hostility extended to anyone who favored desegregation, specifically, people who locals labeled as outside agitators.

SPEAKER_01 31:50

And the New York Times, being a northern paper published in New York City, perfectly fit the label of an outside agitator.

SPEAKER_00 31:57

Precisely. Black is cutting through the legal fiction of the lawsuit. He's saying, realistically, this trial record suggests that Commissioner Sullivan wasn't damaged at all by this ad. If anything, given the intense local politics of 1960 Alabama, his political and social prestige was probably enhanced by being attacked by a northern newspaper pushing for civil rights. Black recognized that this half million dollar verdict wasn't about repairing reputational damage. It was about punishing outside agitators and weaponizing state libel laws to bankrupt a press that dared to publish unpopular views on civil rights.

SPEAKER_01 32:33

He argues that state libel laws threaten the very existence of an American press viral enough to publish unpopular views on public affairs. And he warns that leaving any window open, even the seemingly tiny actual malice window, is a deadly danger to the press. He writes, I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government. It is a powerful, uncompromising view of the First Amendment.

SPEAKER_00 32:58

It is. The majority stopped short of that absolute immunity, opting instead for the actual malice standard. But Black's warning that actual malice might be an evanescent protection is something that legal scholars and media lawyers have debated ever since. Because if actual malice is hard to disprove, it means the media companies still have to spend millions of dollars defending themselves in court, turning over millions of emails in discovery just to prove they didn't have it. The process becomes the punishment.

SPEAKER_01 33:24

Which brings up a fascinating transition. We have seen how the standard was born in 1964. It was designed to protect the press during the civil rights movement, to prevent them from being bled dry by local politicians. So if actual malice is this nearly impenetrable shield built in the 1960s, how did Fox News end up paying nearly $800 million in 2023? Did the shield break, or did Fox just step out from behind it?

SPEAKER_00 33:50

To answer that, we look at a blockbuster modern case, U.S. Dominion Inc. v. Fox News Network LLC.

SPEAKER_01 33:55

And again, just to reiterate our explicit disclaimer, we are discussing the legal mechanics and the court filings of this case impartially. We are not taking political sides on the 2020 election or anything surrounding it. We are simply analyzing how the actual malice standard created in 1964 was tested in a modern courtroom.

SPEAKER_00 34:14

Exactly. So let's lay out the facts of the Dominion case as presented in the legal filings. Following the 2020 presidential election, the voting machine manufacturer, Dominion Voting Systems, sued Fox News Network and Fox Corporation. The core allegation was that Fox provided a platform for guests who the hosts knew would make false and defamatory statements of fact on the air regarding election fraud in Dominion's machines. Furthermore, Dominion alleged that Fox hosts affirmed, endorsed, and repeated those statements, and republished them across their digital platforms.

SPEAKER_01 34:46

So Fox News is the publisher here, and they are facing a massive defamation suit from a corporation. And just like we saw in the New York Times case, the first thing Fox tried to do was get the case thrown out. They filed what is called a motion to dismiss.

SPEAKER_00 34:58

They argued that Dominion failed to adequately plead actual malice. They essentially said, Look, we are just reporting on what newsworthy people are saying about a major public event. You haven't shown that we had knowledge of falsity or reckless disregard for the truth.

SPEAKER_01 35:15

Let's explain what a motion to dismiss actually is because it's a crucial procedural step. A motion to dismiss is basically the defendant saying to the judge, Your Honor, even if everything the plaintiff says in their lawsuit is 100% true, they still don't have a valid legal claim, so throw it out before we waste time on a trial.

SPEAKER_00 35:33

But the trial court in Delaware denied that motion to dismiss. And the reason they denied it is crucial for understanding how actual malice works in practice today. The court looked at the allegations and noted that Fox personnel allegedly had countervailing evidence at the time they were broadcasting these claims. They had evidence from the Department of Justice, from election experts, and from Dominion itself, establishing that there was no widespread fraud involving the machines.

SPEAKER_01 35:58

Wait, didn't we just talk about this in the New York Times case? The Times had countervailing evidence in their filing cabinets, but the Supreme Court said that was just negligence, not malice. How is this different?

SPEAKER_00 36:09

Because it wasn't just institutional knowledge lying dormant in a filing cabinet down the hall. Dominion alleged there was evidence that dissenting colleagues within Fox itself actively disagreed with the election fraud claims being pushed by certain on-air personalities. This suggested a subjective awareness within the organization, among the people making editorial decisions, that the statements might be false. This was enough to survive a motion to dismiss.

SPEAKER_01 36:36

Okay, so surviving a motion to dismiss just means the case is allowed to proceed to the discovery phase. This is where the plaintiff gets to demand emails, text messages, internal memos, and conduct depositions. It is a grueling, invasive process. And after all that discovery was completed, the issue came back before the court, but this time on motions for summary judgment.

SPEAKER_00 36:56

Right. This is another vital procedural step. After discovery, both sides file motions for summary judgment. Fox says, Okay, you've seen our emails, you've deposed our people, you still don't have proof of actual malice, so throw the case out. Dominion says, you've seen their emails, the proof is so overwhelming that you don't even need a jury, declare us the winner right now.

SPEAKER_01 37:17

A summary judgment is the judge saying, We've seen all the evidence, and there is no factual debate left for a jury to decide. But the court declined to grant summary judgment for either side on the specific issue of actual malice. They said, This is too complex, there is conflicting evidence, this has to go to a jury.

SPEAKER_00 37:36

But in making that ruling, the court provided a very helpful modern summary of the actual malice standard. They reiterated that to satisfy the reckless disregard standard, a plaintiff must establish that a defendant entertained serious doubts as to the truth or had a high degree of awareness of probable falsity.

SPEAKER_01 37:54

And the court explicitly noted a fantastic principle. A speaker cannot purposefully avoid the truth and then claim ignorance. You can't put your hands over your ears, close your eyes, hum loudly while someone tries to hand you the facts, and then later say, Well, I didn't know it was false. Purposeful avoidance of the truth can be evidence of actual malice.

SPEAKER_00 38:13

The court clarified that failure to investigate, standing alone, isn't actual malice, as we learned from the Times case. But if the plaintiff offers direct evidence that the statement was probably false, the court can infer that the defendant intended to avoid the truth.

SPEAKER_01 38:29

So how do you actually prove this? We said earlier it's incredibly hard to prove someone's state of mind. You can't x-ray a producer's brain to see if they entertain serious doubts.

SPEAKER_00 38:38

The Delaware court outlined that actual malice can be proven through direct evidence, like an email saying, I know this is a lie, but also through circumstantial evidence. The court listed seven specific factors of circumstantial evidence that a jury can rely on to infer actual malice.

SPEAKER_01 38:54

Let's slow down and dissect these seven factors, because this is essentially the modern playbook for taking down a media company. How do you prove static mind without a smoking gun? Factor one. Obvious reason to doubt the veracity of the informant. If your source is a known conspiracy theorist who has lied to you before, ignoring that history shows reckless disregard.

SPEAKER_00 39:15

Then there's factor two. Yeah. A basis wholly on an unverified anonymous source.

SPEAKER_01 39:19

Right. And factor three, such an inherent improbability that only a reckless man would have put the claims in circulation. If someone tells you aliens rigged the voting machines and you broadcast it without checking, a jury can infer you were reckless because the claim itself is so inherently absurd.

SPEAKER_00 39:35

Exactly. And factor four is fascinating. Financial motive.

SPEAKER_01 39:39

Financial motive. Let's explain why that matters. The evidence pointed out that Fox had a financial motive because they were worried about their ratings and losing viewership to more hard-rate networks like Newsmax. Why does fear of losing ratings equal actual malice? It connects the dots. If you are airing false statements specifically because you are terrified of losing audience share, a jury can infer that your priority was keeping viewers, not finding the truth. Your financial panic caused you to act with reckless disregard for the facts.

SPEAKER_00 40:07

Yes. And the court continues with factor five, a departure from journalistic standards. If your own internal handbook says always get a comment from the accused and you deliberately don't do it, that's circumstantial evidence. Factor six, a preconceived false narrative, meaning you decided on the story before you even looked at the facts. And factor seven, a refusal to retract the statement and continuing to repeat statements that have been proven false.

SPEAKER_01 40:31

Which is very different from the NYT case, where their refusal to retract was deemed reasonable. Here, continuing to repeat statements proven false is a factor against them. So Dominion used these circumstantial factors along with direct evidence.

SPEAKER_00 40:46

And the direct evidence was substantial. The trial court's decision noted that Fox employees knew election officials had determined the election was not rigged. There was deposition testimony of Fox witnesses denying the allegations of fraud, and perhaps most damning, there were specific expressions of disbelief by Fox executives in internal communications.

SPEAKER_01 41:06

Meaning they had the receipts. They had text messages and emails of executors and hosts saying, in private, we don't believe this, while the network simultaneously broadcasts the claims as true to the public.

SPEAKER_00 41:17

Based on all this, Dominion established that genuine issues of fact existed, precluding summary judgment for Fox. The case was officially set on a course for a jury trial.

SPEAKER_01 41:25

And then the massive conclusion. Less than a month after the court denied summary judgment and said, yes, a jury could absolutely find actual malice here based on this evidence, Fox settled. They didn't go to trial. They agreed to pay $787.5 million to settle the lawsuit.

SPEAKER_00 41:44

It is a staggering sum. And it proves a vital point about the legal architecture we've been discussing. The actual malice standard is an incredibly high bar to clear for defamation plaintiffs. For almost 60 years, media companies relied on it as a nearly impenetrable shield. But the Dominion settlement proved that while it is an incredibly high bar, it is possible to clear it if you have enough internal evidence showing a reckless disregard for the truth.

SPEAKER_01 42:09

It shows that the system still demands accountability if you cross that line from simple negligence into purposeful, reckless disregard. But having seen how hard it is to prove and the sheer amount of money and time involved in discovery, it leads to a major question that is currently brewing in legal circles. Did the Supreme Court make a mistake in 1964? Did they swing the pendulum too far away from reputational protection?

SPEAKER_00 42:32

That is exactly the pushback we are seeing today. We're seeing a movement to reconsider the entire framework highlighted by a 2019 opinion by Supreme Court Justice Clarence Thomas.

SPEAKER_01 42:43

This came up in a case called McKeevey Cosby, which was a libel suit brought by one of the many accusers of Bill Cosby. The accuser sued Cosby for defamation after his lawyer publicly denounced her. The Supreme Court as a whole declined to review the case, but Justice Thomas wrote a lone, fiery concurrence to that denial.

SPEAKER_00 43:02

Right. And Justice Thomas's concurrence is a direct attack on New York Times v. Sullivan and the entire actual malice standard. From an originalist perspective, Thomas argues that Sullivan and the cases that followed it were essentially political choices made by the 1964 Supreme Court. He claims these choices were not rooted in the original meeting of the First Amendment when it was drafted and ratified by the founders.

SPEAKER_01 43:24

So he's saying the founders never intended for the First Amendment to completely neuter state libel laws. They didn't write actual malice into the Constitution. The 1960s Supreme Court just invented it out of thin air.

SPEAKER_00 43:36

Exactly. Thomas argues that under the Constitution, the states are perfectly capable of striking an acceptable balance themselves. They don't need a blanket federal rule imposed by the Supreme Court. He believes individual states can balance the need to encourage robust public discourse on one hand while still providing a meaningful, accessible remedy for reputational harm on the other.

SPEAKER_01 44:00

Justice Thomas is basically arguing for a return to the pre-1964 landscape, or at least something closer to it. A world where states have the power to protect reputations without plaintiffs having to prove this incredibly difficult, expensive, actual malice standard.

SPEAKER_00 44:15

And part of the reason he and other legal scholars are concerned is how broad the definition of a public official has become. Right after the Sullivan decision, the Supreme Court had to figure out exactly who qualified as a public official. Because remember, if you are a public official, you lose normal libel protections and have to prove actual malice.

SPEAKER_01 44:33

In a case called Rosenblatt v. Baer, the court defined it. They said the designation applies to anyone in the hierarchy of government employees who has or appears to the public to have substantial responsibility for or control over the conduct of governmental affairs.

SPEAKER_00 44:49

That of a very wide net. It's not just the president or a governor or a police commissioner. It could be a local school board member, it could be a county clerk, it could be a mid-level bureaucrat. And later court decisions expanded this even further to include public figures, celebrities, prominent business people, athletes.

SPEAKER_01 45:09

Think about how massive that shift is. The shield that was built in 1964 to protect the New York Times from being bankrupted by segregationist politicians is now being used to protect media companies from lawsuits by almost anyone who enters the public arena. If a tabloid prints a rumor about a reality TV star, that star has to prove actual malice. You can see why someone like Justice Thomas thinks the balance is totally out of whack.

SPEAKER_00 45:32

It is a profound tension. On one hand, you have the ghost of Justice Black warning that any libel laws are a deadly danger to free speech and will cause the press to self-censor. On the other hand, you have Justice Thomas warning that the current standard denies real people a meaningful remedy when their reputation is destroyed by false statements.

SPEAKER_01 45:51

It is the eternal conflict at the heart of defamation law. We have covered an immense amount of ground today. Let's quickly recap this journey. We started by looking at the pre-1964 common law, a world focused almost entirely on reputation, where a publisher could be held strictly liable for presumed damages just for making a careless mistake.

SPEAKER_00 46:13

Then we witnessed the 1964 earthquake. New York Times v. Sullivan shifted the paradigm to protect the civil rights movement from extortion by litigation. The court recognized that demanding absolute truth would cause a pall of fear, so they created the actual malice standard, requiring plaintiffs to prove knowledge of falsity or reckless disregard for the truth.

SPEAKER_01 46:31

We then fast-forwarded to see that modern reality in action with the Dominion v. Fox news case. We saw how a motion to dismiss differs from summary judgment, and how plaintiffs can use circumstantial evidence like financial motives and internal emails to prove a high degree of awareness of probable falsity, resulting in a nearly $800 million settlement. And we ended with the modern originalist pushback from Justice Thomas questioning if the 1964 court overstepped its bounds and created a monster.

SPEAKER_00 47:00

I really want you to think about the news you consume daily. Every political talk show you watch, every investigative report you read, every fiery editorial you listen to, it is all shielded by this exact legal architecture. The reason we have that uninhibited, robust, and wide open debate in our media is precisely because of the breathing space created by New York Times v. Sullivan.

SPEAKER_01 47:20

It is the invisible load-bearing wall of American public discourse. But I want to leave you with a final provocative thought that builds directly on what we've discussed today. The Supreme Court in 1964 designed this actual malice standard to protect legacy media. They were looking at giant corporations like the New York Times or CBS trying to protect them from being crushed by powerful government officials. They build a shield for newspapers.

SPEAKER_00 47:46

But today, the landscape is entirely different.

SPEAKER_01 47:49

Because of social media, you are a publisher. Every single time you retweet a rumor about your local mayor, or you post a fiery accusation against a city commissioner on a community forum, or you upload a video criticizing a local official, you are operating under this exact same legal framework. The line between the institutional press and the general public has completely dissolved.

SPEAKER_00 48:11

It is a fascinating, almost terrifying application of the doctrine.

SPEAKER_01 48:14

So the question is: is a 60-year-old shield built to protect a newspaper's advertising acceptability department from segregationists really the right tool to govern the chaotic, instantaneous internet of today? Or does applying this high bar of actual malice to social media give everyday people a license to casually destroy reputations without any real consequence? Have we made it too easy to lie? That invisible architecture we talked about at the beginning. You aren't just living in the house anymore, you are building it every single time you speak. Thank you so much for joining us on this deep dive. We'll see you next time.