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.
