What happens if New York Times v. Sullivan falls?

In 1964, the U.S. Supreme Court ruled that our First Amendment right to freedom of speech limited the ability of public officials to sue for defamation. It set a lasting precedent that provides important protections for journalists. That precedent is increasingly under threat.

The court ruled that, to win a libel lawsuit, a public official must prove “actual malice,” meaning that there was a reckless disregard for the truth. The landmark case stemmed from a full-page ad a civil rights group had placed in The New York Times that criticized Alabama officials over how they treated civil rights protesters. The police commissioner at the time, L.B. Sullivan, sued the Times for libel and the case went to the Supreme Court.

The full and dramatic story behind New York Times v. Sullivan is told in a new book by Samantha Barbas, a professor at the University at Buffalo School of Law and director of the Baldy Center for Law and Social Policy. “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan” unspools the saga, with archives of The New York Times Company and the background of the turbulent 1960s.

New York Times v. Sullivan provides protections that shield journalists today, but some officials would rather see it struck down. Florida Gov. Ron DeSantis, for example, wants the court to revisit the 1964 ruling. The Miami Herald reported that Florida lawmakers are pushing legislation “that would make it easier to sue media outlets for allegations of defamation and make it harder for journalists to do their jobs by undermining the use of unnamed sources.”

Barbas spoke with Poynter recently about her book and what’s at stake if New York Times v. Sullivan is overturned.

This interview has been edited for clarity and brevity.

Q: If Sullivan falls, what would happen to journalism in the United States?

A: Any alteration to the Sullivan line of cases would have significant impacts on journalism. And when I say Sullivan line of cases, I mean not only New York Times v. Sullivan, but the Supreme Court cases which apply the actual malice rule to public figures. Sullivan deals only with public officials. So I think if any of that line of cases were to be changed, it would really make it more difficult for a journalist to report on public affairs, on public officials. It would really make it riskier for a reporter to write about a public figure who was litigious, who was controversial, and who might try to fight back against criticism with a lawsuit. I really do think that it would have a chilling effect on the press.

Q: That chilling effect could make journalists think twice before pursuing a story or an angle, which hurts us all, right?

A: I think that’s exactly right. You were saying how the Sullivan decision protects not only the press, but it protects the public’s ability to be able to get this news and information, and the ability of ordinary citizens to even be able to have conversations about public officials and controversial issues. So really, Sullivan protects all speakers.

Q: If Sullivan were to fall, where do you think that challenge would come from? 

A: There has been, I would say, in the past five or so years, this conservative movement to get the Supreme Court to overrule Sullivan and related cases. There have been various attempts through lawsuits and litigation to get a case up before the court. You mentioned the recent Florida proposals, which are really extraordinary in their efforts to do away with the protections of Sullivan. And I think part of the intention with these bills is to kind of queue up a case to get before the Supreme Court that would invite it to reconsider Sullivan. So what’s happening in Florida could represent a direct challenge to Sullivan.

Q: As a reporter, I often relied on “freedom of the press” in the back of my mind. I always knew I could rely on this as I searched for the truth. What did you learn about how important this right is for journalists?

A: I tell this story of how libel law could be weaponized before 1964. The Sullivan case involved a segregationist official who sued The New York Times over some statements that were essentially true, but that criticized him. Sullivan’s lawsuit was part of this concerted campaign. It was actually like a conspiracy on the part of all these Southern officials to try to sue The New York Times out of existence using libel law.

I think that if the Supreme Court hadn’t ruled in favor of The New York Times, we could have politicians getting together and suing a disfavored publication out of existence just because they don’t like its politics or what it said about them. So Sullivan is absolutely critical to protecting the right of journalists to do investigative reporting, to report on government corruption, to hold officials accountable. It’s absolutely critical.

Q: Was there anything surprising you learned while working on this book?

A: I tried to emphasize in the book the importance of a New York Times v. Sullivan for both freedom of the press and the civil rights movement. The Sullivan case comes out of the conflict over civil rights in the South in the early 1960s. The segregationists were trying to use libel law not just to shut down the press, but also to stop the civil rights movement. They knew that the civil rights movement depended on the press for news coverage, and the segregationists also sued Martin Luther King Jr.’s organization — leaders of that group, the Southern Christian Leadership Conference. And so I make the argument in the book that, if the Supreme Court hadn’t ruled the way it did, not only would the press have been silenced, but also the civil rights movement might not have taken off and made as many gains as it ultimately did in the 1960s.

Q: Why is New York Times v. Sullivan especially important today?

A: I think what we’re seeing is a lot of politicians out there who are openly hostile to the press. They have portrayed the press as the enemy and they would love to be able to use libel law to shut down their critics in the press. And I think New York Times v. Sullivan is what prevents that kind of thing from happening. So I think Sullivan is especially important in this polarized political climate and the hostile culture that we have right now.

This was originally published at Poynter.org, the website of the Florida-based Poynter Institute for Media Studies.