On March 9, 1964, the United States Supreme Court decided New York Times v. Sullivan, a case that radically expanded first-amendment protection for the press. Naturally, the fiftieth anniversary of this decision is being ecstatically celebrated throughout all media and legal academia.
However, for those committed to the text and history of the Constitution, and a judiciary tethered to them, there is nothing at all to celebrate. Even by the imperial-judiciary standards of the Warren Court, this case stands out as something of a classic effusion in that Court’s project of remaking American society to conform with its far-Left preferences. There is no question that the case is a watershed: Before New York Times v. Sullivan, the first amendment protected a free press that was responsible in law for its errors; after and because of this case, the press has anything-goes immunity from almost any mistakes, no matter how damaging. As a policy matter, this may or may not be a prudent development. Constitutionally, the decision is an infamous failure and a disgrace to the judicial role.
The case arose out of the early period of the civil-rights struggle. Sullivan was an elected official in Montgomery, Ala. He brought a libel action against the New York Times and four individuals because of an advertisement that appeared in that newspaper criticizing in part police action against civil-rights demonstrators. Sullivan won a jury verdict of $500,000, which was later upheld by the Supreme Court of Alabama.
The U.S. Supreme Court unanimously reversed the award and imported into our constitutional law an entirely new regime under the first amendment, relying not on James Madison but expressly invoking the very different views of John Stuart Mill. In an opinion written by Justice William Brennan Jr., who was the heart and soul of the Warren Court’s constitutional revolution, the Court emoted that “we consider 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 that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks of government and public officials.”
And then the Court imposed an extraconstitutional standard based on its own libertarian reading of the First Amendment: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
Thus was the established balance between responsible speech and reputation — a Madisonian balance — utterly subverted. The Founders had carefully crafted constitutionally protected speech rights against the backdrop of state libel laws. For nearly two centuries, this arrangement has proved perfectly workable; no one ever claimed that the country did not enjoy a free press. What Justice Brennan did was recklessly free the press from responsibility for its mistakes. In the Warren Court way, liberty became license.
Of course, Justice Brennan’s actual-malice standard looks like a model of interpretive discipline when compared to the antihistorical, no-law-means-no-law first-amendment literalism of Justice Hugo Black in his concurring opinion. Though he was perhaps the best legal mind on the Court at that time, Justice Black in this case descended to adolescent literalism and would have wiped out all libel laws under his slipshod approach.
To be fair, within its own policy-driven, libertarian universe, the majority opinion in New York Times v. Sullivan has at least a modicum of coherence. If one elevates robust debate — which may contain errors that damage reputations — through a free press about public officials and affairs above any other values, then the actual-malice standard is logical if nothing else. But even this limit was abandoned when the actual-malice requirement was mindlessly extended to all public figures within the next few years. Along with constitutional text and history, basic reason had been discarded.
Justice Antonin Scalia has denounced New York Times v. Sullivan as an offense against original understanding and noted in public remarks that the decision should be overturned and libel law returned exclusively to the states. That would be the only proper constitutional approach to the issue and something really worth celebrating.
— Gregory J. Sullivan is a lawyer who practices in New Jersey.