Change defamation laws and you're silencing yourself

This article originally appeared in Newsweek on March 1, 2023.

In 1960, as the fight for civil rights gained steam, supporters of Martin Luther King Jr. publicly shamed the police in Montgomery, Alabama, for harassing King and shutting down peaceful protests. Their vehicle? An advertisement, "Heed Their Rising Voices," in The New York Times.

L.B. Sullivan, an elected safety commissioner, didn't like King's supporters or the newspaper challenging the powers that be. Aiming to silence them, Sullivan sued four black preachers whose names appeared on the ad and the Times for libel. The ad did not mention Sullivan and had just a few minor inaccuracies, like saying local police had arrested King seven times when it was actually four. Yet an Alabama jury of 12 white men awarded the commissioner half-a-million dollars—around $5 million today. The Times and the preachers faced financial catastrophe.

So, they took the case to the Supreme Court.

What followed was a resounding vindication of the First Amendment and the freedom of all Americans to speak on public issues. Tossing aside the jury's verdict, the Supreme Court reminded us that in America, debate on important issues "should be uninhibited, robust, and wide-open." And to protect robust public debate, the Court concluded that public officials suing for defamation must prove the defendant knew the words were false or that they made them with reckless disregard for the truth.

That Supreme Court decision is New York Times v. Sullivan. Over six decades, Sullivan has secured breathing space for all Americans to challenge the powerful without having to fear a ruinous court battle over mere words. And the decision impacts more than what public officials must prove for libel. Courts often also look to Sullivan when upholding First Amendment rights, like those for political parody and hyperbole, sharing information about public health, and gathering news.

But now, some are calling to weaken or even overturn Sullivan. Earlier this month, Florida Gov. Ron DeSantis held a roundtable discussion placing Sullivan in the crosshairs. And last week, a Florida legislator introduced two bills attacking Sullivan and its constitutional protections for robust public debate.

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Americans should pay attention to those calls, no matter their politics. They threaten free expression for us all.

Imagine a citizen lampooning George Santos on Facebook, a student emailing his peers with outrage over the college president firing a professor because of political pressure or concerned parents chastising school officials for their decisions about mandated masking or library books. Sullivan shields them all from officials suing to compel their silence under the threat of financial ruin—even if those criticisms contain a couple of unwitting inaccuracies.

Sullivan enshrines Americans' exceptional commitment to the vigorous public debate essential for self-government—and our willingness to tolerate some errors to protect that debate from powerful figures who might silence it. In the social media age, when more people than ever have a voice to criticize the powerful, the ruling is more important than ever to keep that crucial debate alive.

Of course, Sullivan is not an escape hatch for knowing and defamatory lies, despite what some critics wrongly insist. Public officials and figures can and do pursue and win defamation cases in courts nationwide. But Sullivan gives powerful figures reason to pause before they try to bully their opponents into self-censorship through lawsuits.

Suppose Sullivan disappears. No longer would it impede politicians who sue Twitter satirists or thin-skinned school officials seeking to sue outspoken parents on Facebook. Instead, the powerful would enlist the legal system to force their critics to choose between silence and the financial pain of litigation, just as segregationists attempted to silence civil rights leaders over a half-century ago. And those who gained a voice would lose it once again.

The Founders also knew that good self-government takes courage—including the courage to engage in passionate public debate and to push for political and social change. 

That's a dangerous outcome for anyone with something to say about public issues—whether one is a professional media member, or an ordinary citizen armed with only a smartphone and gumption. Freedom of speech must be open and democratic, never bowing to the legal tantrums of public officials.

The Founders would agree. The First Amendment's architect, James Madison, emphasized the importance of free speech in ensuring that people retain power over those elected to serve them. Even 50 years before Madison drafted the First Amendment, a colonial New York jury championed the freedom to criticize public officials, rejecting the governor's imprisonment of printer John Peter Zenger for daring to criticize the powerful.

The Founders also knew that good self-government takes courage—including the courage to engage in passionate public debate and to push for political and social change. The New York Times and preachers that L.B. Sullivan dragged into court showed that courage. And so do countless Americans who speak their mind on public issues today, whether online or in town halls.

Without Sullivan, that courage risks giving way to timidity and self-censorship. So, stand up for Sullivan. The freedom of speech you enjoy today depends on it.

Greg Lukianoff is President and CEO of the Foundation for Individual Rights and Expression. JT Morris is FIRE's Senior Attorney.