Actual Malice

The Supreme Court and Libel

Libel is in the air.

Well, at least at my house.  I’m speaking in a couple of weeks on the New York Times v. Sullivan case, in which the Supreme Court constitutionalized the law of libel.  It’s something I’ve written about before, but I took the opportunity to read a new book by Samantha Barbas:  Actual Malice:  Civil Rights and Freedom of the Press in New York Times v. Sullivan. 

Barbas’ book is an outstanding accomplishment:  A serious page-turner about a case that happened over fifty years ago.  I pored through it the way I usually go through a thriller novel, even though, of course, I knew how the story turns out all along.   I had read the case, and Anthony Lewis’s history of the case, Make No Law, and I still learned a lot.

One of the things that Barbas makes clear is what a loser the case was for the Times under existing law.  The paper published an advertisement, titled Heed Their Rising Voices, designed to raise money for civil rights  leader 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.   As Barbas writes:  “The ad was emotional and compelling, as Rustin intended.  Unfortunately, it was filled with errors.  In their zeal to dramatize the events and to publish the ad in a hurry, Rustin and Murray had, intentionally or unintentionally, taken liberties with the facts.  There were mistakes about the events in Montgomery contained in the ad’s third and sixth paragraphs.  Some were minor, and some more significant. . . .  Although the police did appear on the Alabama State campus, it wasn’t in connection with the protest at the capitol. The most serious statement was the statement about authorities padlocking the dining hall.  The dining hall wasn’t padlocked, and officials never attempted to ‘starve’ the students ‘into submission.’”

Ordinarily, the Times’ Advertising Acceptability Department would have fact-checked the ad, but the many illustrious signatories overwhelmed its skepticism:  “The head of Advertising Acceptability, a fifty-year-old former journalist named D. Vincent Redding, looked over the ‘Heed Their Rising Voices’ ad.  Like Aronson, he was impressed with the high-profile signatories and the [accompanying] letter from A. Philip Randolph.  He was so impressed that he never attempted to fact-check the ad, which would have been easy, as the Timespublished sixteen news stories on the events in Montgomery.  Copies of these articles were contained in files in the newspaper’s library or ‘morgue,’ which was one flight upstairs from the Advertising Acceptability Department.  This careless treatment of the committee’s ad violated the Times’ well-established advertising policy.”

A few days after the ad was submitted, but before it was set in type, Rustin decided to add the names of some black ministers in Alabama.  Rustin felt sure they’d agree to having their names on the ad, but there wasn’t time to check with them before the final ad copy was sent from the ad agency to the Times.

The ad appeared on Tuesday, March 29, 1960 on page 25, with the factual errors, and the unapproved names.  Contributions poured in.

It took a while for people to notice, because only 394 copies of the Times were sent to the entire state of Alabama.  Among the recipients, however, were the Montgomery newspapers, and one of them, the Montgomery Advertiser, published an article pointing out the factual errors in the advertisement.  It soon occurred to many important political figures in Alabama that this ad, filled with factual errors (though as Barbas notes, in “overall gist” it was basically true) offered an opportunity to strike back at the New York Times, a major thorn in the sides of the segregationists.

The correlation of forces was such that segregation had lots of political support in the South at the state and local level.  But the national political organs, which had grudgingly gone along with segregation when its realities were less plain (and when Southern votes were essential to Democrats’ national ambitions), were now turning against it, and the news media were leading the charge.   Even in 1960, support for ending segregation was shaky even in many non-Southern states, but it was growing ever stronger in response to extensive coverage by national media, particularly the Times, which had expanded its coverage in the South.

Southern politicians felt they were playing on hostile turf in the national media, but a libel suit would move the action to their own turf, where local judges and local juries, not New York media, would set the agenda. 

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 actual factual errors wasn’t enough.  Montgomery Public Affairs Commissioner L.B. Sullivan, who oversaw the police, claimed libel and had little difficulty in persuading a jury that even though he wasn’t named personally, the references to police misconduct reflected badly on him.  Since some of them were false, the Times couldn’t (and didn’t) plead truth as a defense.  The jury awarded him a for-the-time whopping $500,000.  (The black ministers were named jointly-and-severally liable with the NYT, despite their claims that they hadn’t authorized the use of their names).   A second claim, brought by Montgomery Mayor Earl James produced another half-million-dollar judgment.

There were things to argue about here even under existing law:  Could public officials be libeled simply by factually incorrect criticisms of the departments they managed?  Were their reputations actually harmed, given that most voters in their communities supported their efforts against civil rights protesters?  But those were debatable, and could reasonably be answered both ways, and the “overall gist” of the verdicts was very much in accordance with settled law.

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 just what it did.

It’s worth noting that the Alabama cases weren’t the only ones.  They were part of a coordinated campaign of libel litigation against national media in several states that was meant to intimidate.  The goal was to discourage intense and hard-hitting (and as segregationist politicians no doubt saw it, one-sided) coverage in the national press.  And for a time it was quite successful.  The Times quit sending reporters into Alabama, and other news organizations stepped lightly, lest they be named next. 

The $500,000 judgments would be chump change to the NYT today, even adjusted for inflation (the online Inflation Calculator shows $500,000 in 1960 as amounting to $5,124,375 today).  But the Times was poorer then, and in the middle of a financial crisis and an expensive confrontation with the printer’s union.  There was reason for worry that if these lawsuits succeeded, the proliferation of copycat suits would either bring the Times down financially or completely neuter its coverage.  And other organs would not be immune.

In response to this the Supreme Court did exactly what Nachman feared:  It changed the law.  Deciding that the libel law of the past 150+ years offered too much power over national media to local officials, 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 the rule that already obtained in a few states, but as Barbas notes, “Brennan was creating a new standard, but he went out of his way to make it seem as if the standard was already accepted in several states.”

At one level, this extension – or alteration – of First Amendment doctrine to fit a new situation of coordinated action by government officials makes some sense.  Traditionally, libel was seen as unprotected by the First Amendment.  But traditionally, libel was purely a matter between two individuals, a sort of (more than sort of, actually) litigation-substitute for dueling, to the point that libel suits were expressly promoted as a substitute for the field of honor.

But when government officials come together to use government institutions against private entities, it looks less like a duel and more like war.  So it’s plausible that in this special circumstance the First Amendment might reach farther than it has historically reached in libel cases.

This provides a useful and compelling defense of the Sullivan decision, and a plausible reading of it as well.  The only problem is that it’s not what actually happened.

As Barbas notes, the majority openly sided with the Times, and the other defendants.  (Before oral arguments began, “from the bench, Arthur Goldberg, dispensing with any illusion of impartiality,” sent down his copy of Stride Toward Freedom to co-defendant Martin Luther King with a note asking for an autograph.)  Barbas also notes that “concern for the civil rights movement was the primary reason” the Court decided to hear the case, because it threatened to “undermine the critical work of the media in furthering the civil rights movement.”  (And even Nachman and the Times’ lawyer, law professor Herbert Wechsler, chatting in the Supreme Court building afterward, were both stunned by Brennan’s development of the actual malice standard, and agreed that Brennan had just “run away with the decision.”)  But they didn’t yet appreciate just how far he had run.

Further decisions made clear that the Court wasn’t just interested in limiting the ability of public officials, through sympathetic juries and “home cooking” litigation, to influence out of state media.  Sullivan’s legacy quickly became one of generalized protection for the institutional press against, basically, anyone who might call it to account for false and defamatory content.  In very short order, the “public official” standard, which is manageably limited to government officials, became the elastic “public figure” standard, which means whatever judges want it to mean, as illustrated in this clip from the movie Absence of Malice:

In the St. Amant case, the Court interpreted the “reckless disregard” part of actual malice to only involve publications choosing to publish anyway when they entertained serious doubts about the accuracy of the material – there was no duty to investigate even outlandish charges so long as there was no subjective doubt.  And proving the subjective doubt became much more difficult as the Iqbal and Twombly cases held that charges of malice must be “plausibly” pleaded before any discovery – which would yield information demonstrating the existence of such doubts -- could even commence.

Barbas observes that the Sullivan case differed from most of the Court’s free speech cases because of the nature of the parties:  “the petitioner in the case. . . . was not an isolated and marginal member of American society, but rather a pillar of the establishment.”  And as it turned out, it pays to be a pillar of the establishment.

In fact, strengthening the establishment was a major outcome of the case.  The American media – especially as corporate control consolidated local and regional papers and broadcast stations under national ownership – became a much more unified force in American politics, even as it was freed from the legal constraints that had limited its freedom of action for the previous two centuries.  And even in the courtroom, a major effect of the court’s ruling was to weaken the role of the jury – traditionally the one non-establishment part of the legal apparatus – in favor of the judge and lawyers.  (Weakening juries relative to judges and lawyers was a theme of a lot of Warren Court decisions.)

Barbas quite freely notes that not everyone is a fan of the Sullivan decision, even among journalists.  It amounts to a subsidy, allowing press outlets to externalize the costs of poor or slanted reporting by dumping them on those defamed, and on news consumers, rather than paying those costs itself in the form of libel judgments and insurance premiums.   It is perhaps no coincidence that trust in the press has declined steadily since right about the time the decision was handed down.  And it is probably no coincidence that American politics has become more acrimonious and divided over the same period.

Those are topics that are really beyond the scope of Actual Malice, though to Barbas’ credit they get some discussion at the end.  We are now beginning to think about them seriously, as talk of revisiting Sullivanbecomes more common.  My own prediction is that the Court will not formally overrule Sullivan but that it might return to the “Public Official” rather than the “Public Figure” standard, and that it will probably overrule St. Amant, and, even more likely, Iqbal/Twombly.

But Barbas’ book succeeds brilliantly at what it sets out to do.  The book is fascinating, gripping, and meticulously evenhanded.  (Charges of sexual impropriety aimed at the trial judge in Montgomery are mentioned in passing, but equal attention is given to the Willard Hotel room “orgy” involving Martin Luther King – which took place the night after the argument – that was recorded by the FBI).  There is no doubt which side of the case she thinks was right, but given the equities that’s hardly a failure.  And despite her sympathies, she is attentive the the concerns and motivations of both sides, and is careful not to paint lawyers and parties with a broad brush.

Actual Malice is the best legal book I’ve read this year, and one of the best I’ve ever read.  I highly recommend it.

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