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.
