Scholar fears freedoms gained in landmark press case may be lost

Friday, June 4, 1999

Tom McCoy...
Tom McCoy

NASHVILLE — “The fear about the erosion of New York Times v. Sullivan is not misplaced,” constitutional law scholar Tom McCoy told an audience gathered at the First Amendment Center yesterday to discuss the 35-year-old landmark press freedom case.

McCoy, who teaches a First Amendment class at Vanderbilt University School of Law, told the audience of about 70 media professionals, student journalists and academics that the public’s distrust of the media could lead to the weakening of press freedoms.

The U.S. Supreme Court ruled in 1964 in New York Times Co. v. Sullivan that the First Amendment limits a state’s power to award damages in a libel suit filed by a public official against critics of his or her official conduct.

L.B. Sullivan, the Montgomery, Ala., city commissioner in charge of the police department, sued The New York Times’ parent company and several individuals for libel over a full-page editorial advertisement published in newspaper on March 29, 1960. The ad, “Heed Their Rising Voices,” described civil rights abuses committed by Southern officials against African-American students.

The ad contained what McCoy called “relatively minor factual inaccuracies.” For example, the ad said that “Southern violators” had arrested Dr. Martin Luther King, Jr. “seven times” when he had been arrested four times. The ad also inaccurately stated that police had padlocked the Alabama State College campus dining hall, which was never done.

Even though he was not named in the ad, Sullivan sued the paper in Alabama state court for libel and recovered $500,000 from an all-white jury. On March 9, 1964, the U.S. Supreme Court reversed the jury verdict, writing that “the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First Amendment.”

McCoy said that some clever lawyers in Alabama had realized that state libel laws provided them with a vehicle under which to “suppress aggressive reporting about the civil rights movement.”

He noted that many other Southern officials had filed libel actions for critical media coverage of abuses during the civil rights era. Anthony Lewis, in his book Make No Law: The Sullivan Case and the First Amendment, writes: “By the time the Supreme Court decided the Sullivan case, in 1964, Southern officials had brought nearly $300 million in libel actions against the press.”

McCoy said that logically false statements of fact should not be protected by the First Amendment because they don’t contribute to the “marketplace of ideas.” However, McCoy said that the Supreme Court recognized that “if it followed logic, there would be a chilling effect on exactly the type of speech the First Amendment was designed to protect – true information and legitimate, pure political speech.”

The question before the high court in New York Times v. Sullivan was how much false information should be protected in order to prevent suppression of information about important public issues, McCoy said.

The result, he said, was one of the “most complicated and sophisticated doctrinal constructs.”

In his opinion for the high court, Justice William J. Brennan recognized that “libel can claim no talismanic immunity” and that “erroneous statement is inevitable in free debate.” For this reason, the court established a rule that public officials suing for a defamatory falsehood relating to official conduct can recover damages only under certain circumstances. They can recover damages only if they prove the statements were made with “actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

McCoy said this rule of protecting many false statements was necessary in order to prevent the press from engaging in “self-censorship.”

During his presentation, McCoy also discussed other U.S. Supreme Court libel cases — Curtis Publishing Co. v. Butts, Gertz v. Robert Welch, Inc. and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. — which fleshed out what he calls “the New York Times doctrine.”

Under the Times v. Sullivan rule, protection for statements depends on whether:

  • The false statement was made “innocently, negligently or willfully.”
  • The plaintiff was a government official, public figure or private figure.
  • The statement relates to a public or private issue.

McCoy said the basic “calculus” of New York Times v. Sullivan was analytically sound.

He said the high court was correct when it said that false statements made innocently or negligently, as opposed to willfully, deserved more protection because the risk of self-censorship would dramatically increase if the press could be sued for innocent mistakes.

McCoy also agreed with the court’s analysis that the value of the information decreases as you move from speech about government officials and public issues toward private issues about private figures. Finally, McCoy agreed with the court that the injury increases as you move from a public figure to a private figure. Unlike government officials, private figures don’t have the resources or access to the media to call a press conference and rebut false allegations.

“The high court understood the basic functions of the risk of self-censorship, the extent of the injury involved and the value of the marketplace of ideas,” McCoy said. “The general contours of the decision are sound.”

However, McCoy points out that there are “holes in the doctrine.” “There are gaps in New York Times v. Sullivan,” he said. “The case and rule from the case are not nearly as well-thought out as we all assume.”

He asked several questions designed to show the audience the difficulty of applying the legal rules from New York Times v. Sullivan and its progeny including:

  • What exactly is a public issue as opposed to a private issue?
  • Is President Clinton’s sex life a public issue or private issue?
  • Is a lawyer in a high-profile case a public or private figure?
  • What is the standard if a false statement relates to a government official on a purely private issue?

McCoy said some have criticized the New York Times v. Sullivan decision for not providing enough protection for the press. He cited the concurring opinion by Justice Hugo Black who believed that Brennan’s opinion did not go far enough in protecting press freedoms.

“We would, I think, more faithfully interpret the First Amendment by holding that at the very least it leaves the people and the press free to criticize officials and discuss public affairs with impunity,” Black wrote. Black also said the standard of “actual malice” was “an elusive, abstract concept, hard to prove and hard to disprove.”

When asked by First Amendment Center Executive Director Ken Paulson whether the case would still be talked about on its 70th anniversary, McCoy said he hoped so but was doubtful.

McCoy said that press freedoms could be lost because of the public’s decreasing respect for the media. “In the civil rights era and Watergate, the press was viewed as a protector,” he said. “Now the press is viewed as something to be avoided, detested or held liable.

“I hope we will still be discussing New York Times v. Sullivan on its 70th anniversary,” he said.

First Amendment Center founder John Seigenthaler closed the program by noting that “the complexity of New York Times v. Sullivan is relevant to both people in the newsroom and the general public.” He called upon the audience to realize that the Internet could lead to changes in libel law and quoted John Milton’s defense of free speech in Areopagitica. Milton wrote:

“[T]hough all the winds of doctrine were let loose to play upon the earth, so truth be in the field, we do injuriously, by licensing and prohibiting, do misdoubt her strength. Let her and falsehood grapple; whoever knew truth put to the worse in a free and open encounter?”