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Libel and the media Times v. Sullivan ushers in an uncertain new age of press freedom Elements of libel • Defamatory content Elements of libel • Defamatory content • Falsity Elements of libel • Defamatory content • Falsity • Publication Elements of libel • • • • Defamatory content Falsity Publication Identification Elements of libel • • • • • Defamatory content Falsity Publication Identification Fault Elements of libel • • • • • • Defamatory content Falsity Publication Identification Fault Harm Evolution of libel • Falsity was not always an element of libel: The greater the truth, the greater the harm Evolution of libel • Falsity was not always an element of libel: The greater the truth, the greater the harm • Fault was not an element of libel until the 1960s — before that, it was a nofault tort Evolution of libel • Falsity was not always an element of libel: The greater the truth, the greater the harm • Fault was not an element of libel until the 1960s — it was a no-fault tort • How does requiring fault advance the purpose of the First Amendment? Can libel = prior restraint? • In Near, Chief Justice Hughes wrote that the Minnesota Public Nuisance Law amounted to prior restraint Can libel = prior restraint? • In Near, Chief Justice Hughes wrote that the Minnesota Public Nuisance Law amounted to prior restraint • Hughes cited Blackstone on afterthe-fact punishment Can libel = prior restraint? • In Near, Chief Justice Hughes wrote that the Minnesota Public Nuisance Law amounted to prior restraint • Hughes cited Blackstone on afterthe-fact punishment • Milton, in the Areopagitica, advocated after-the-fact punishment, including death Civil rights and libel • As with Gitlow v. New York, the Times v. Sullivan decision must be seen within the broader context of the civil-rights movement Anthony Lewis • Wrote Make No Law, a history of Times v. Sullivan • Retired New York Times columnist • Married to Margaret Marshall, chief justice of Mass. SJC Ad on King’s behalf • Published in New York Times in 1960 • Contained several minor errors Four ministers also sued • Rev. Ralph Abernathy (right) with King in Alabama • Idea was to keep Sullivan’s suit in state court Times, ministers lose • Found liable in courtroom of judge who presided at re-enactment of Jefferson Davis’s inauguration • $500,000 judgment • Libel a state matter — or is it? Times v. Sullivan (1964) • Unanimous decision written by William Brennan • Says Alabama court’s decision amounts to seditious libel: criticism of government officials • Therefore, the Alabama court’s action is unconstitutional under the First and Fourteenth Amendments William Brennan’s view “[D]ebate on public issues should be uninhibited, robust, and wide-open, and … it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” Actual malice • New standard of fault that public officials must show to prove libel Actual malice • New standard of fault that public officials must show to prove libel • Knowingly false Actual malice • New standard of fault that public officials must show to prove libel • Knowingly false • Reckless disregard for the truth A libel earthquake • 1967: Actual malice standard extended to public figures as well as officials A libel earthquake • 1967: Actual malice standard extended to public figures as well as officials • 1974: Private figures must at least show negligence to win a libel suit A libel earthquake • 1967: Actual malice standard extended to public figures as well as officials • 1974: Private figures must at least show negligence to win a libel suit • 1989: Reckless disregard is defined as knowledge of probable falsehood Disadvantages for media • Opens press defendants up to examination as to their state of mind Disadvantages for media • Opens press defendants up to examination as to their state of mind • Harms media credibility by creating a cynical attitude among press critics Disadvantages for public • Virtually no recourse for public official or public figure Case study: Dan Rather • A 1980s case very similar to the story that brought him down in 2004 • Won by testifying he believed documents were authentic