Review essay: Handman and Feder on Barbas’ ‘Actual Malice’ — A new look at NYT v. Sullivan — First Amendment News 375

The recent publication of “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan” (University of California Press, 2023) by professor Samantha Barbas was of such importance that we invited a review essay of the book. Given the timeliness of the work, it seemed fitting to ask two seasoned media lawyers to discuss what The New York Times described as “a detailed examination of . . . the landmark 1964 Supreme Court decision.” To that end, we invited Laura Handman and Eric Feder of the Davis Wright Tremaine firm.

Other books by professor Barbas include, “The Rise and Fall of Morris Ernst, Free Speech Renegade” (University of Chicago Press, 2021), and, “Newsworthy: The Supreme Court Battle Over Privacy and Press Freedom” (Stanford University Press, 2017). — RKLC

Professor Samantha Barbas’ “Actual Malice” could not be more of-the-moment, as news organizations and advocacy groups confront a weaponization of libel suits, and Sullivan’s actual malice standard is under attack from both Supreme Court justices and ambitious politicians. At this critical juncture, Samantha Barbas takes readers back through the fascinating history behind the Sullivan decision, when the civil rights movement and The New York Times were facing an existential threat and the Warren Court came to the rescue.

The backdrop of institutional bigotry

Though the “actual malice” standard laid out in the Sullivan decision is cited in nearly every judicial decision in a libel case, the origin and specific facts of the case are less well-remembered — and oddly far removed from the situations in which the rule tends to be applied today. Barbas draws on previously unexplored sources from the internal archives of the Times, contemporaneous press coverage in the South and around the country, and from the entire Sullivan litigation — starting from the trial, which was presided over by the Confederacy-obsessed Judge Walter Burgwyn Jones. Barbas notes that Judge Jones had previously issued the injunction that barred the NAACP from operating in Alabama; he declared “I intend to deal the NAACP a mortal blow from which they shall never recover.” (See also: Ronald Collins and Sam Chaltain, “We Must Not be Afraid to be Free” (Oxford U. Press, 2011), pp. 143-164.

As Barbas’ impressive historical recounts reveal, the case (now so important to journalists) stemmed not out of news reporting by the Times, but from an advertisement from a civil rights group that was placed in the newspaper. And the plaintiff was not even referred to — by name or otherwise — in the ad. 

The “Sullivan” of Times v. Sullivan was L.B. Sullivan, the commissioner of public affairs for Montgomery, Alabama — the elected official in charge of the city’s fire and police departments. He had ties to the Ku Klux Klan and ran for the position in 1959, four years after the bus boycotts spurred by Rosa Parks, on an explicit platform of white supremacy and cracking down on civil rights protests. Barbas highlights his campaign advertisements promising that “L.B. Sullivan Will Not Back Down on the Southern Traditions of Complete Segregation in Schools, In Parks, On Busses” and “No ‘kid glove’ handling of agitators.”

The response: ‘Struggle for Freedom in the South’

On March 29, 1960, leaders of the civil rights movement formed an ad hoc “Committee to Defend Martin Luther King and the Struggle for Freedom in the South.” To raise awareness and funds, they took out a full-page ad in the Times titled, “Heed Their Rising Voices.” Over the course of ten paragraphs, the ad described various civil rights struggles taking place across the American South, including the trumped-up criminal prosecutions of Dr. King. It was signed by 80 prominent members of society — not only civil rights leaders but celebrities like Sidney Poitier, Eleanor Roosevelt, and Marlon Brando. Below the signatories, the ad listed prominent Southern civil rights leaders, including King, Rev. Ralph Abernathy, and Rev. Fred Shuttlesworth, as “warmly endors[ing] this appeal” — though they were not even aware their names appeared in the ad. The ad began: 

As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights. In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom.

Over the next paragraphs, the ad highlighted incidents in cities throughout the south. The third paragraph discussed a recent student protest in Montgomery:

In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.

Notably absent from the ad was any mention of L.B. Sullivan or the “Commissioner of Public Affairs.” Nevertheless — and notwithstanding his campaign promise to take off the “kid gloves” when dealing with “agitators” — Mr. Sullivan professed to be deeply offended by the description of the police’s handling of the student protests. He sued The New York Times and four of the ministers whose names had been added to the bottom of the ad for libel.

Libel suits as potent weapons against protestors and the press

The technical hook for the suit was that the ad did contain factual errors. Police did not actually “ring[]” the entire Alabama State College campus — though police armed with shotguns and teargas were indeed sent to the campus to quell the protests against the expulsion of the students who led the sit-in at the courthouse. The dining hall was not in fact padlocked — though several hundred students who refused to re-register for classes out of protest were not permitted entry into the school dining hall until they registered, and the police had earlier padlocked the snack bar where the sit-ins began. And the students had been expelled not for singing on the capitol steps but for their involvement in the sit-in at the courthouse café — no less an exercise of their First Amendment rights, to be sure. (Though not as important to the subsequent litigation, the ad also got the song the students sang wrong — it was “The Star-Spangled Banner,” not “My Country ‘Tis of Thee.”)

In fact, Sullivan’s was far from the only libel lawsuit the Times faced in Alabama at the time. Just weeks after Sullivan, Birmingham city leaders (including Bull Connor) filed five different libel suits against the Times seeking millions in damages over a series of articles by a Times reporter on the racist, state-sponsored violence that had taken place throughout the city. 

A grand jury voted to indict the reporter on 42 counts of criminal libel over the articles. Later, Alabama Governor John M. Patterson also joined the Montgomery officials in suing over the “Heed Their Rising Voices Ad,” which prompted the Times to publish a formal retraction of the “two paragraphs complained of by the Governor,” in which the paper assured readers that it “never intended to suggest by the publication of the advertisement” that Patterson “was guilty of ‘grave misconduct or improper actions and omission,’” and apologized to him “[t]o the extent that anyone can fairly conclude from the statements in the advertisement that any such charge was made.” The retraction, of course, did not stop the governor from filing suit and demanding a million dollars in damages. 

Southern leaders made no secret of the fact that they saw libel suits as a potent weapon to strike back at what the Alabama attorney general described as “warped and slanted attacks on Alabama and the South” (while announcing that he was looking to file a defamation case on behalf of the entire state). One editorial from a Southern paper compared the press coverage of the civil rights protests that “traduced and misrepresented” the South to “the trials our forefathers endured years ago.” Another expressed hope that the suits “‘will have the effect of slowing the Times,’ in publishing statements that ‘recklessly condemn the South with facts that are false and untrue.’”

Defenses then available to the Times

The suits had just that effect. In an effort to avoid being served with process and being subject to personal jurisdiction in Alabama, the Times ultimately withdrew all of its reporters — both employees and freelancers — from the state, and relied instead on wire stories for two and a half years. As Barbas explains, “As a result of the libel suits, reporters for The New York Times would remain out of Alabama, the site of the most contentious events of the civil rights movement, during crucial years of the desegregation struggle.” 

As it happened, the question of whether the Times was subject to jurisdiction in Alabama was one of the most heavily litigated issues in the Sullivan suit — and one of the only real viable arguments the Times could raise. As Barbas aptly explains, under the law as it existed at the time, the statements were considered per se libelous of Sullivan “insofar as they accused [him] of professional incompetence,” so “[n]o evidence was needed to show that they would or did harm Sullivan’s reputation.” 

The First Amendment protection for freedom of speech and the press played no role in libel jurisprudence. The only defense at that point was to show that the statements were true “in all their particulars” — the statements were presumed to be false absent such proof. Unsurprisingly, in November 1960, the jury returned a verdict for Sullivan and granted him the full $500,000 he sought — the largest libel award in Alabama history to that point. Although the defendants appealed, that did not stop the plaintiff’s lawyer from having the Montgomery sheriff seize cars and farmland owned by the ministers who had been named in the ad. 

The “breathtaking” size of the judgment shocked publishers around the country, with the Chicago Tribune noting that “[e]ven the most intrepid publisher … must be intimidated into silence.” For its part, the Alabama Journal celebrated the verdict, observing that it “could have the effect of causing reckless publishers of the North … to make a re-survey of their habit of permitting anything detrimental to the South and its people to appear in their columns.” Inspired by Sullivan’s success, when CBS News broadcast a report on the Spring 1961 attacks against the Freedom Riders by a violent KKK mob while police stood by, Birmingham officials promptly sued the network for libel, seeking $500,000 each.

Civil rights leaders quickly recognized the threat these suits posed to the movement. Martin Luther King addressed a luncheon of New York attorneys and spoke of how, as a result of the judgments,

victims of injustice dare not express opposition to their oppressors…. These cases are a classic example of tyranny over the minds and tongues of men making a nullity of the First Amendment to the Constitution…. The effect of accumulating millions of dollars in judgments against leaders of the integration struggle goes far beyond those directly involved.

Enter professor Wechsler

By the time the Sullivan case reached the Supreme Court, prominent attorneys got involved in the effort, led by Columbia Law professor Herbert Wechsler. It was Wechsler and his colleague, future district court judge Marvin Frankel, who made the critical strategic decision to liken the libel suits from public officials to the old English laws punishing “seditious libel” of government. Barbas recounts how the Times’ cert. petition explained that common law proscription against “seditious criticism” traced back to 1274, when statements — even true ones — “that threatened to diminish respect for the government or public officials were punishable by death as treason.” 

In 1735, the printer Peter Zenger was famously prosecuted for criticizing the royal governor in New York; Although the judge did not permit Zenger’s lawyer to use truth as a defense, the jury acquitted him. The Sedition Act of 1798 was used by Federalist officials to prosecute Republican critics, but President Jefferson subsequently pardoned the editors. Jefferson and James Madison argued in the Virginia Resolution that the statute violated the First Amendment, because it was “levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.” The Sedition Act expired on its own in 1801 before it could be formally ruled unconstitutional by Congress or the courts. But in the years since, a consensus had grown that punishing seditious libel was inconsistent with the First Amendment. In its petition, the Times’ lawyers highlighted the other pending Alabama libel suits against the media to underscore that libel actions were being used as a tool to silence criticism of the government. 

The tactical gambit worked, and the Court took the case, despite having repeatedly noted in passing that defamation falls outside the protections of the First Amendment. 

In his main brief, Wechsler made the case that libel actions from public officials cannot be divorced from constitutional free speech rights:

Throughout the years this Court has measured by the standards of the First Amendment every formula for the repression of expression challenged at its bar. In that process, judgment has been guided by the meaning and the purpose of the Constitution, interpreted as a “continuing instrument of government,” not by the vagaries or “mere labels” of state law. Hence libel, like sedition, insurrection, contempt, advocacy of unlawful acts, breach of the peace, disorderly conduct, obscenity, or barratry, to name but prime examples, must be defined and judged in terms that satisfy the First Amendment. The law of libel has no more immunity than other law from the supremacy of its command.

The Court’s opinion later echoed this exact pronouncement. See: New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) (“Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.”) 

Brennan’s compromise

Amazingly, the Times’ brief did not explicitly advocate for the use of the “actual malice” standard as it came to be defined — “knowledge that [a statement] was false or with reckless disregard of whether it was false or not.” That was a compromise by the opinion’s author, Justice William Brennan, between the law as it existed, on the one hand, and the view pushed by Wechsler on the other, that liability could not attach to even knowingly false criticism of government officials. The more hardline free speech-defending Justices (Black, Douglas, and Goldberg) embraced Wechsler’s more absolutist argument in separate concurrences. 

Justice Brennan, however, drew from what he described as a “like rule” adopted in a number of state courts — and “apparently favore[d]” by what Brennan characterized as a “consensus of scholarly opinion” — that allowed a conditional privilege for criticism of official conduct made “in good faith and without malice,” even where “the principal matters contained in the article may be untrue in fact and derogatory to the character of the plaintiff.” Id. at 280-81 and n.20. Brennan’s compromise was successful in persuading all nine members of the Court to sign onto the opinion.

The Court’s opinion, of course, recognized that “shield[ing] criticism of official conduct” was “the central meaning of the First Amendment” — that American history reflected a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 270, 273. A high bar for public officials claiming defamation was necessary to protect the “breathing space” that “free debate” “need[s] to survive.” Id. at 271-72. 

Today’s campaign to upend Sullivan

Today that “profound commitment” is being tested — perhaps more than ever since the Sullivan decision was issued in 1964. At least three Supreme Court Justices have expressed skepticism over whether the actual malice standard of Sullivan is warranted in light of changes in how information is disseminated in an age of digital publishing and social media. And the Florida state legislature has introduced bills that would gut the actual malice standard in many cases involving public officials and public figures, in direct contravention of Sullivan and its progeny. The bills appear to be an effort to force a Supreme Court that has shown newfound comfort in upending well-established precedents to revisit the Sullivan decision. (The legislation followed an odd “roundtable” hosted by Governor Ron DeSantis on “the damaging impacts of defamation from the legacy media.”) 

Yet, as the history traced in Barbas’ invaluable book reminds us, the protections of Times v. Sullivan are more important than ever. Southern officials correctly saw pre-Sullivan libel law as an effective tool to punish and deter not only journalists who reported on violent crackdowns by the state against civil rights advocates, but also the advocates themselves. Today, we see more and more suits brought not just by public figures but by government officials — up through and including political candidates, congressmen, and (former) presidents. These suits target speech on issues that go to the very center of the “debate on public issues” protected by Sullivan, from the validity of presidential elections to the efficacy of vaccines in the time of a pandemic. Just as troublingly, large corporations have started using libel actions (styled as RICO suits) to go after nonprofit advocacy groups who have the temerity to criticize their practices — seeking damages that would immediately bankrupt the organizations. This trend has prompted Congress to introduce a federal anti-SLAPP law to mirror the laws in many (but not all) states, to provide for attorney’s fees to prevailing defendants when sued in federal court over speech on matters of public concern. 

Combining impressive research with sound legal reasoning, professor Barbas expertly reminds us that the result of the libel suits during the civil rights era was the actual chilling of speech, with The New York Times pulling its journalists out of Alabama entirely during a pivotal moment in history. In this time of searing public divisions, Barbas’ recounting of the history and context of the Sullivan decision underscores the fundamental importance to our democracy of robust protection against weaponized libel actions.

 Related

• Lee Rawles, Samantha Barbas, “Why NYT v. Sullivan mattered in 1964 and is under attack today,” Modern Law Library Podcast, ABA J. (March 29)
• Amaris Castillo, “What happens if New York Times v. Sullivan falls?” Seattle Times (March 17) (interview with professor Barbas)
• Samantha Barbas, “The Story of Beauharnais v. Illinois,” Journal of Free Speech Law (2023)
• Kathryn Rubino, “Law Professor on The Future of The First Amendment,” “Above the Law” podcast (June 3, 2022)
• Nico Perrino, “Morris Ernst, Free Speech Renegade,” “So To Speak” podcast, FIRE (July 29, 2021)
• Samantha Barbas, “From Privacy to Publicity: The Tort of Appropriation in the Age of Mass Consumption,” Buffalo Law Review (2013)
• Samantha Barbas, “The Death of the Public Disclosure Tort: A Historical Perspective,” Yale Journal of Law & The Humanities (2010)

2022-2023 SCOTUS term: Free expression and related cases

Review granted

• 303 Creative LLC v. Elenis (argued Dec. 5)
• Jack Daniel’s Properties, Inc. v. VIP Products LLC (argued March 22)
• United States v. Hansen (argued, March 27) (Volokh commentary here)
• Counterman v. Colorado (to be argued, April 19)

Pending petitions

• Tingley v. Ferguson
• Frese v. Formella
• National Rifle Association of America v. Vullo
• Mobilize the Message v. Bonta
• Vidal v. Elster
• O’Connor-Ratcliff v. Garnier
• U.S. v. Hernandez-Calvillo
• Price v. Garland
• Moody v. NetChoice, LLC
• NetChoice, LLC v. Moody
• Florida v. NetChoice
• Klein v. Oregon Bureau of Labor and Industries

State action

• O’Connor-Ratcliff v. Garnier
• Lindke v. Freed

Qualified immunity

• Novak v. City of Parma (cert. denied) 

Immunity under Foreign Sovereign Immunities Act 

• NSO Group Technologies Limited v. WhatsApp Inc. (cert. denied)

Liability Anti-Terrorism Act

• Twitter v. Taamneh (argued Feb. 22) 

Section 230 immunity

• Gonzalez v. Google (argued Feb. 21)

Review denied

• Keister v. Bell
• Morgan v. Arizona

Previous FAN

• FAN 374: “Artificial thinking in an age of artificial intelligence: Preliminary thoughts on the parameters of First Amendment jurisprudence”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Mr. Collins.