Wynn’s Encore casino in Everett, Mass. Photo (cc) 2024 by Dan Kennedy.
The Supreme Court on Monday turned down a chance to narrow or even throw out Times v. Sullivan, the 1964 ruling that provides the press with strong protections against libel suits. The court’s action was not entirely surprising, but it was heartening nevertheless.
The would-be challenge came about after former casino mogul Steve Wynn sued The Associated Press, claiming that its reporting on sexual misconduct he had allegedly engaged in during the 1970s was false and defamatory. Because Wynn is a public figure, he would have had to show the AP acted with “actual malice” — that is, that it knew its reporting was false or that it showed “reckless disregard” as to whether it was true or false. Wynn’s lawyers had sought to weaken the actual-malice standard.
By declining to take up Wynn’s appeal, the Supreme Court indicated that no more than three of the nine justices are ready to revisit Times v. Sullivan, since it takes four justices to agree to hear a case. Clarence Thomas has previously written that he would overturn Sullivan in its entirety, while Neil Gorsuch would like to pare it back. Just recently, Brett Kavanaugh, though, went out of his way to affirm his support for Sullivan.
Since the court did not release a vote tally, we have no way of knowing whether or not Thomas and Gorsuch were joined by a third justice, or even if Thomas and Gorsuch themselves were willing to take the case. Perhaps they thought it was a poor vehicle for advancing their anti-Sullivan agenda. It would be nice to know, but that’s not how the court works.
Times v. Sullivan imposed the actual-malice burden only on public officials. Later rulings extended that to public figures. New York Times reporter David Enrich, in his new book, “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful,” warned that the court might be willing to weaken Sullivan. Enrich wrote that “it is not hard to envision the Supreme Court substantially narrowing the scope of who classifies as a public figure or even ruling that the actual malice standard should only apply to government officials.”
Well, not yet, and not now. What will happen if and when a different case comes along is anyone’s guess.
The allegations of sexual misconduct against Wynn were originally reported in 2018 by The Wall Street Journal, which has published an archive of articles. According to the AP, Wynn reached an agreement with Nevada gambling officials in 2023 to exit the casino business and pay a $10 million fine without admitting any wrongdoing.
The Nevada Supreme Court described the AP story that drew Wynn’s ire as “a good-faith effort to inform their readers regarding an issue of clear public interest.”
Standing Rock protest in St. Paul, Minn. Photo (cc) 2016 by Fibonacci Blue.
Earlier this week, a North Dakota jury delivered a verdict on behalf of a large energy company that may destroy the environmental organization Greenpeace — and that could inflict significant damage on the First Amendment as well.
According to reporters Jeff Brady and Alejandra Borunda of NPR, the jury ruled in favor of Energy Transfer, which built the Dakota Access oil pipeline, and which accused Greenpeace in a civil suit of libel, trespassing and other offenses. The jury awarded Energy Transfer $660 million, which Greenpeace officials have said could force the organization to cease operations.
When the Supreme Court ruled in 1964 that news organizations need no longer fear ruinous libel judgments over small, inadvertent errors, it sparked an explosion of investigative reporting. A direct line connects the court’s decision in New York Times v. Sullivan — inevitably described as a “landmark” — and journalism that exposes government secrecy and corruption at the national, state and local levels.
Under Times v. Sullivan, a public official who sues for libel must show that a defamatory statement was made with “actual malice,” a term of art that means the statement was published “with knowledge of its falsity or with reckless disregard of whether it was true or false.” Later rulings extended actual malice to public figures.
But though Times v. Sullivan freed the press to uncover government lying in the Vietnam War and the Watergate scandal, the backlash began almost immediately. That backlash is the subject of a new book by New York Times reporter David Enrich called “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.”
“Murder the Truth” also prompts a look back at two earlier books that examine the historical and legal significance of the Sullivan decision — “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan” (2023), by Samantha Barbas, and “Make No Law: The Sullivan Case and the First Amendment” (1991), by Anthony Lewis. It is Enrich’s book, though, that speaks to the urgency of this calamitous moment, as well as the fate of the free press during President Donald Trump’s second term.
Justice Clarence Thomas. Public domain photo via Wikimedia Commons.
Donald Trump may find that there are limits to how far he can go in tearing down the First Amendment’s guarantee of a free press. Adam Liptak reports in The New York Times (gift link) that the U.S. Supreme Court doesn’t seem inclined to revisit the libel protections of New York Times v. Sullivan, writing:
[I]t was notable that just five days before President Trump took office last month, the Supreme Court seemed to go out of its way to signal that it is not ready to embrace one of his most dearly held goals: to “open up our libel laws” and overrule the Sullivan decision.
That signal came in the form of an approving aside in a routine decision by Justice Brett Kavanaugh for Sullivan’s requirement that public officials must offer “clear and convincing evidence” in order to win a libel case — a higher barrier than a “preponderance of the evidence,” that standard that applies in most civil cases.
The heart of Times v. Sullivan, a unanimous decision handed down in 1964, is that public officials must prove “actual malice” in order to win a libel case. That is, they most show knowing falsehood or “reckless disregard” for the truth. Subsequent decisions extended the Sullivan standard to public figures and narrowed the definition of “reckless disregard.”
The decision was intended to shut down a wave of libel suits brought by racist Southern officials aimed at silencing coverage of the Civil Rights Movement. The Sullivan standard also enabled investigative reporting on matters such as the Watergate scandal, since publishers no longer had to worry that small, inadvertent errors would bring about financial ruin.
Press-freedom advocates have been holding their breath since Justice Clarence Thomas wrote that he would, if given the chance, overturn the Sullivan decision and Justice Neil Gorsuch said he favored severely curtailing it. As I wrote for GBH News in 2021:
What seems impossible today may become reality in the not-too-distant future. Changes to libel protections that we had long taken for granted are starting to look inevitable, especially in the hands of a Supreme Court built by Trump and Mitch McConnell.
But maybe Sullivan is secure, at least for now. “All of this suggests that there remain only two votes to overturn the Sullivan decision,” Liptak writes, “well short of the four it takes to add a case to the court’s docket, much less the five required to prevail on the merits.”
Still, threats remain. Liptak observes that numerous challenges to Sullivan, citing Thomas and Gorsuch, have been filed in the past few years. Just last week, casino mogul Steve Wynn filed an appeal in his ongoing libel suit against The Associated Press and asked that Times v. Sullivan be overturned. Howard Stutz of The Nevada Independent quotes David Orentlicher, a law professor at the University of Nevada at Las Vegas, who says:
This would be a dangerous time to revisit the protection of the free press. Unfortunately, we have an administration that has decided to target the press and others who write critical commentary. There is a blurring of lines between government officials and private persons who have power. This is exactly the wrong time to weaken the protection of the press.
Moreover, none of this does anything to stop deep-pocketed libel defendants such as ABC and possibly CBS from giving in to bogus suits filed by Trump in order to advance their business interests. So far, at least, the Des Moines Register and its parent company, Gannett, are holding firm in the face of Trump’s most ridiculous lawsuit — that they somehow engaged in “consumer fraud” by publishing the results of a poll that turned out to be way off the mark. The pollster, J. Ann Selzer, is being sued as well. Trump has been joined by a right-wing organization called the Center for American Rights, as Robin Opsahl reports for the Iowa Capital Dispatch.
Perhaps a signal from the Supreme Court that the protections of Times v. Sullivan remain secure will serve to stiffen the backbone of news organizations and their parent companies. If they’re not willing to fight for press freedoms that they already have, then the Sullivan decision is worth very little.
Martin Luther King Jr. Memorial in Washington, D.C. Public domain photo by the National Park Service.
On this Martin Luther King Jr. Day (I hear something else is going on today, too), it’s worth remembering that strong libel protections the press are grounded in the Civil Rights Movement and, specifically, in Dr. King’s activism in the South.
It began with a full-page ad taken out in The New York Times in 1960 titled “Heed Their Rising Voices.” Sponsored by supporters of Dr. King, the ad was aimed at calling attention to King’s campaign and raising support. It also contained a few inconsequential errors: it claimed that King had been arrested seven times on bogus charges (it was actually four), and it stated that Black student protesters at Alabama State College in Montgomery had been padlocked inside their dining hall “in an attempt to starve them into submission” (not literally true).
The city’s public safety commissioner, L.B. Sullivan, who was not even named in the ad, sued the Times for libel and won a $500,000 judgment in Alabama’s deeply racist court system. Other Southern officials were also suing the Times and other news outlets, which raised fears that the white power structure’s brutal crackdown on the Civil Rights Movement would go uncovered by the Northern press. As Samantha Barbas writes in her 2023 book “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan”:
[L]ibel suits brought by segregationist officials against Northern news media were emerging as a potent weapon. They were so worrisome that they prompted a lawyer writing in one of journalism’s revered trade publications to comment that such lawsuits were giving the South an opportunity “to reverse the verdict at Appomattox.”
Libel law had always been considered a matter for the states, with no obvious way for the federal courts to intervene. Nevertheless, the Supreme Court of that era decided that it had to get involved. And in the landmark 1964 Times v. Sullivan decision, the court ruled that the First Amendment prohibited public officials from winning a libel case unless they could prove that defamatory falsehoods published about them were deliberate, or close to it. As Justice William Brennan explained in his unanimous decision:
[W]e 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 on government and public officials.
Brennan wrote that the standard public officials would have to prove was “actual malice,” defining that as “knowledge that it was false or with reckless disregard of whether it was false or not.” Later decisions extended the actual malice standard to public figures; defined “reckless disregard” as harboring serious doubts about the truth of what was being published; and ruling that even private figures would at least have to prove negligence.
The Times v. Sullivan decision was crucial to the rise of modern investigative reporting. As Anthony Lewis wrote in his 1991 book about the decision, “Make No Law: The Sullivan Case and the First Amendment,” “The allowance of room for honest mistakes of fact encouraged the press, in particular, to challenge official truth on two subjects so hidden by government secrecy, Vietnam and Watergate, that no unauthorized story could ever have been ‘absolutely confirmable.’”
With the dawn of the second Trump era, though, there are doubts as to whether Times v. Sullivan will survive. Several years ago, Justices Clarence Thomas and Neil Gorsuch suggested that the case ought to be revisited. More recently, ABC News’ parent company, Disney, settled what should have been a winnable libel suit brought by Donald Trump for $16 million. And last week, CNN settled a libel suit with a Navy veteran who had set up an operation to evacuate people from Afghanistan after a jury found against the network and awarded $5 million. (As I wrote Jan. 9, there appeared to be some serious problems with CNN’s story, so the decision to settle seems wise.)
In a few hours, we will mark the re-inauguration of Trump, who threatened years ago to “open up libel laws” and make it easier for plaintiffs to win lawsuits against the media. An empowered press that can hold the powerful to account was a vital part of Dr. King’s legacy. It would be sad if we begin rolling back that freedom on a day when we celebrate his life and achievements.
George Stephanopoulos earlier this year. Official White House photo by Carlos Fyfe.
For this morning, a tale of two libel suits, one national, one local. The national case threatens to undermine protections for journalism that have been in place since 1964. The local case will result in the closure of a weekly newspaper that started publishing 139 years ago.
First, the national lawsuit. On Saturday, ABC News agreed to pay $15 million to Donald Trump in order to settle a libel claim over repeated on-air assertions by anchor George Stephanopolous that a jury had found Trump “liable for rape” against the writer E. Jean Carroll. The money will be paid to Trump’s presidential library and foundation, Paula Reid and Katelyn Polantz report for CNN. ABC will also pay $1 million for Trump’s legal fees and issue an apology.
The problem is that what Stephanopoulos said was substantially true. The CNN story put it this way: “In 2023, a jury found that Trump sexually abused Carroll, sufficient to hold him liable for battery, though it did not find that Carroll proved he raped her.” And here’s the big “but”: In August 2023, U.S. District Judge Lewis Kaplan found that Trump had, in fact, raped Carroll under the everyday meaning of the word if not under the legal definition. Here’s what Lewis said at the time in the course of ruling on one of Carroll’s defamation proceedings against Trump:
Indeed, the jury’s verdict in Carroll II establishes, as against Mr. Trump, the fact that Mr. Trump “raped her,” albeit digitally rather than with his penis. Thus, it establishes against him the substantial truth of Ms. Carroll’s “rape” accusations.
I’ll give you a moment to throw up. Now, then, let’s parse this, shall we? A jury found Trump liable for “sexual abuse,” which Judge Lewis ruled was tantamount to being found liable for rape. What Stephanopoulos said was inaccurate only under the most hypertechnical interpretation of what actually happened — and, as I said, Stephanopoulos’ assertions were substantially true, which is supposed to be the standard in libel law. But ABC and its parent company, Disney, decided to appease Trump rather than continue to fight.
And what’s with Stephanopoulos? At 63, he has made many millions of dollars. If he had resigned and continued to fight rather than go along with his corporate overlords, he could have been a hero. Who knows what opportunities would have opened up for him? Instead, he’s content to continue as a highly compensated apparatchik. It’s sad.
By settling with Trump, ABC is following in the path of other corporate titans, a number of whom have donated $1 million apiece to Trump’s inauguration festivities. The donors include Facebook CEO Mark Zuckerberg, OpenAI CEO Sam Altman and Amazon founder Jeff Bezos, who owns The Washington Post.
Under the 1964 Supreme Court ruling of Times v. Sullivan and subsequent refinements, public officials and public figures like Trump need to show that statements they find harmful are false, defamatory and made with actual malice — that is, with knowing falsehood or with reckless disregard for the truth — in order to win a libel suit.
What Stephanopoulos said arguably wasn’t even false, and surely it didn’t amount to actual malice. A deep-pockets defendant like Disney ought to stand up for the First Amendment lest its cowardly capitulation to Trump harm other media outlets without the wherewithal to fight back.
Coming at a time when two of the Supreme Court’s justices, Clarence Thomas and Neil Gorsuch, have publicly signaled that they would like to weaken Times v. Sullivan, ABC’s behavior is shockingly irresponsible.
Local paper to close
Now for the local case. On several occasions I’ve written about an explosive libel suit brought against the weekly Everett Leader Herald by that city’s mayor, Carlo DeMaria.
Unlike the matter of Trump and ABC, you will not find a clearer example of actual malice, as Leader Herald publisher and editor Joshua Resnek testified in a deposition that he’d made up facts and quotes in a campaign aimed at impugning DeMaria’s integrity. That news was broken in January 2023 by Boston magazine’s Gretchen Voss. Indeed, eight months later, Middlesex Superior Court Judge William Bloomer froze assets belonging to Resnek and one of the paper’s owners, Matthew Philbin, because he believed DeMaria was likely to win his case.
The denouement came Sunday when The Boston Globe reported that the suit would be settled for $1.1 million and that the Leader Herald would be shut down as part of the settlement. Globe reporter Maddie Khaw writes:
Resnek, who writes and edits most of the Leader Herald’s articles, has frequently used the nickname “Kickback Carlo” to refer to DeMaria, a moniker representing Resnek’s claims that DeMaria had received illegal payments in real estate deals.
Records show that Resnek has admitted to knowingly reporting falsehoods and fabricating quotes.
“Mr. Resnek wrote what he wrote because he believed Mr. DeMaria was bad for the City of Everett and he was motivated by the fanciful notion that he could bring about Mr. DeMaria’s defeat in the [2021] election for Mayor,” the defendants’ lawyers wrote in court documents.
DeMaria and his lawyers will hold a news conference later today. Meanwhile, there is nothing up at the Leader Herald’s website about the settlement, which features several stories that were posted as recently as this month.
Incredibly, Everett is also the home of two other weekly newspapers, the Everett Independent and the Everett Advocate, both of which are part of small, locally owned chains; neither of them has anything on the settlement, either.
Like no doubt many of you, I am horrified by the Supreme Court’s decision in the presidential immunity case but have little to offer beyond what you’re reading and seeing elsewhere. Nor did I feel reassured when President Biden came out and read a five-minute speech. Here’s part of what the historian Heather Cox Richardson had to say in a truly chilling essay for her newsletter, “Letters from an American”:
This is a profound change to our fundamental law — an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law.
It seems to me that if we’re going to save the country, it’s absolutely essential that a Democrat be elected to the White House this fall, whether it’s Biden or someone else, and that the Democrats take both branches of Congress as well. That’s a tall, unlikely order. And I’m sorry to have to be so partisan, but Bob Dole, John McCain and Mitt Romney are not walking through that door.
After that, we can talk about what needs to be done about the court, which has long since sunk into illegitimacy thanks to the machinations of Mitch McDonnell and the corruption of Clarence Thomas and Sam Alito. I’ve seen an upsurge in commentary that the court should be expanded, but that strikes me as a fool’s game — something that could easily be gamed by both parties until we’re up to a 57-member SCOTUS. Instead, I’d like to see term limits that guarantee every president will get one or two appointments plus constraints on the court’s powers, which at the moment appear to be limitless.
Justice Sam Alito. Photo (cc) 2017 by JoshEllie1234.
A few quick follow-ups on The Washington Post’s mind-boggling failure (free link) to report that an insurrectionist flag was flying outside Supreme Court Justice Sam Alito’s home when the paper discovered it way back in January 2021:
• As I’ve written previously, news organizations never should have gotten rid of their public editors, also known as ombudsmen. A number of these positions disappeared when newspapers were shrinking and losing money. But though some newspapers that eliminated their public editors have returned to profitability, including The New York Times and The Boston Globe, the Post is in dire straits these days. Too bad. A public editor could demand answers as to why a story wasn’t published at the time and how it happened to surface right now.
• Speaking of which — why now? What happened? According to the Post’s own story on Saturday, the flag was verified by its now-retired Supreme Court reporter, Robert Barnes. Given that the court is taking some important cases related to the insurrection, did Barnes contact the newsroom to remind them?
• The Post’s executive editor, Marty Baron, announced in late January 2021 that he was retiring, and he left the paper about a month later. Baron was someone who was seemingly on top of everything, but if there was ever a time when he was giving the Post less than his full attention, this would have been the moment. Conversely, the Post was caught up reporting on the actual events of the attempted insurrection of Jan. 6. At that moment, the Alito matter may have seemed like a sidebar to a sidebar.
• As deep as the Post’s failure may have been, it may have done little damage in the long run. Alito wouldn’t have recused himself from insurrection-related cases then, and at that point there weren’t any. Nor will he now. But with Jan. 6-related cases finally coming before the court, and at a time when Justice Clarence Thomas’ corruption has been fully exposed, the story that insurrectionist flags appeared over two of the Alitos’ homes may hit harder now than it would have three and a half years ago.
• All of this serves as a reminder that no matter what you think of the three justices appointed by Donald Trump (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett), the two worst were appointed by the Bushes — Thomas by George H.W. Bush and Alito by George W. Bush.
The harassment endured by Lauren Chooljian, a reporter for New Hampshire Public Radio, is frightening and horrifying. David Enrich of The New York Times reported last week (free link) that Chooljian, her parents and her editor have been subjected to vandalism and threats after she reported on sexual misconduct allegations against Eric Spofford, who founded the state’s largest network of addiction treatment centers.
Spofford denies having anything to do with the vandalism. But there’s an interesting wrinkle to the case that I want to discuss, and that’s Spofford’s libel suit against Chooljian and NHPR. Because of Spofford’s prominence, he has been designated as a public figure, which means that he must show actual malice (as well as falsity and defamation) in order to win his suit. Actual malice, as you probably know, requires that the plaintiff prove the defendant published the offending material despite knowing or strongly suspecting it was false.
NHPR has been ordered by Judge Daniel St. Hilaire to turn over transcripts of interviews, including with anonymous sources. “Legal experts,” Enrich wrote, “called the ruling unusual and alarming, saying such decisions could make it harder for journalists to investigate potential wrongdoing by public figures.” And Enrich quoted one of those experts, Chad Bowman, as saying it was “‘deeply troubling’ for a judge to force journalists to hand over unpublished materials when the plaintiff hadn’t yet made a viable legal claim.”
The last part of that statement is the key: Spofford has not yet presented the sort of evidence that would suggest he could win if allowed to proceed. St. Hilaire seems to be putting the cart before the horse. But if Spofford does have a viable case, then he’s entitled to gather the evidence he needs to pursue it. Remember, he needs to prove actual malice. That means it’s essential that he be allowed to probe the inner workings of Chooljian’s and NHPR’s reporting and editing processes to see whether they knew what they were broadcasting was false or if they harbored any serious doubts about it.
At one time libel had been regarded as what you might call a no-fault tort. That is, if you could show that you had been defamed with falsehoods, then you would win your case, regardless of the news organization’s motivation. In the 1974 case of Gertz v. Robert Welch, however, the Supreme Court ruled that even private individuals would have to prove negligence. With at least two members of the current Supreme Court, Justices Clarence Thomas and Neil Gorsuch, having suggested they’d like to revisit libel law, it’s worth thinking about whether negligence might be a better standard than actual malice, even for public officials and public figures.
The problem with actual malice has always been that though it makes it extremely difficult for a plaintiff to win a libel suit against the news media, it also gives the plaintiff entree into a news outlet’s private communications. Consider that, in 2005, The Boston Globe lost a libel suit brought by a doctor in the case of Betsy Lehman, a Globe reporter who died after receiving a massive overdose of a chemotherapy drug. In that case, the judge ruled that Dr. Lois Ayash won what turned out to be a $2 million judgment by default after the Globe refused to turn over its confidential sources, as the judge had ordered.
Ayash was entitled to that information, but there was no way the Globe was going to betray its confidential sources. If a negligence standard had been in effect rather than actual malice, then the jury could have determined whether the Globe had acted negligently without probing into its reporting processes.
So, too, with the NHPR case. The problem here, again, is that it’s not clear whether Chooljian reported anything that was false. Truth is almost always considered an absolute defense in a libel case, which is why Judge St. Hilaire seems to be acting prematurely. Nevertheless, the case is a good illustration of why actual malice — defined in the landmark Times v. Sullivan case in 1964 — may have been a mistake, and why negligence may be a more workable standard.
Peter Thiel. Photo (cc) 2012 by Hubert Burda Media.
Jack Shafer asks an important question: Who is funding Sarah Palin’s legal battle against The New York Times? As Shafer observes in his new Politico Magazine piece, Palin’s legal team overlaps with the lawyers who represented Hulk Hogan in his lawsuit against Gawker. That effort turned out to be funded by Facebook billionaire Peter Thiel, who was aggrieved at having been outed by a Gawker-owned website. Shafer writes:
Nobody can criticize Palin for passing the hat to finance her case — if that’s what she did. Lawsuits are expensive and crowdfunding them without naming the funders is a time-honored practice — civil liberties groups do it routinely — and the practice is especially praiseworthy when the litigation is of the “impact” variety, designed to change the law and protect rights. But as the Gawker case demonstrated, such lawsuits can also be seen as punitive exercises, financed by a third party as payback.
The problem is that when lawsuits are funded by vast sums of dark money, they can have a distorting effect. Hogan’s invasion-of-privacy suit after Gawker published video of him having sex without his permission was certainly worthy of pursuing. But in the ordinary course of such matters, it would have been settled and life would have gone on. Instead, Hogan’s lawyers used secret Thiel money to push the suit all the way to its conclusion, with Gawker ultimately going bankrupt and shutting down. (The site has since been relaunched under new ownership.)
Unlike Hogan’s case, Palin’s libel suit against the Times is entirely lacking in merit. The Times published an editorial falsely tying Palin’s rhetoric to the 2011 shooting of then-congresswoman Gabby Giffords and the killings of six others. But there was zero evidence that the Times acted with “actual malice” (knowing falsehood or reckless disregard for the truth), which is the standard for public officials and public figures.
Palin’s suit shouldn’t have gotten as far as it did, and the devastating defeat she suffered this week ought to put an end to it. But if she’s backed by an endless stream of screw-you money, she can keep pushing, and perhaps get her case eventually heard by the U.S. Supreme Court — where Justices Clarence Thomas and Neil Gorsuch have indicated they’re prepared to overturn or pare back the libel standards that have protected the press since the landmark 1964 Times v. Sullivan decision.
