This week marks the 50th anniversary of the Supreme Court's decision in New York Times v. Sullivan, perhaps the most important First Amendment case in American history. In the words of the great First Amendment scholar Alexander Meiklejohn, the decision was "an occasion for dancing in the streets." Why was Sullivan so important?
The case arose out of an action for libel brought by Montgomery, Alabama, Commissioner L.B. Sullivan, who alleged that an advertisement published in the New York Times in 1960 by a group of African-American clergymen contained several statements about him that were false. The advertisement, titled "Heed Their Rising Voices," described the civil rights movement and appealed for contributions to support the movement.
Prior to Sullivan, the Supreme Court had held that false statements of fact have no constitutional value and that individuals who make false statements can therefore be held accountable for the harm they cause without raising any First Amendment issue. The logic of this view was simple: Whatever else the First Amendment was intended to do, it surely was not intended to encourage false statements of fact, which can hardly be said to further the values of sound public discourse.
It was the peculiar realities of the moment that led the Supreme Court to reconsider this well-settled position. At the time Sullivan was decided, the South was in the throes of the civil rights movement. White southerners were deeply concerned about public opinion in the rest of the country. The more the national media covered civil rights protests in the South, the more public opinion turned against those who were seeking to preserve segregation. Strategic lawsuits for libel were brought by public officials like Sullivan against the national media for inadvertent misstatements they made in news reports about civil rights protests. The purpose of these lawsuits was to deter the national media from covering the civil rights movement.
This strategy was effective because Southern juries were inclined to grant excessive damage awards against those who embarrassed the South. In Sullivan, for example, the Alabama jury awarded Sullivan $500,000 in damages ($2.5 million in today's dollars) for what were at worst minor inaccuracies. Such awards, which were then proliferating, could cripple national newspapers and drive them away from covering the civil rights movement. In effect, the South was using civil libel laws to re-create a form of seditious libel, which traditionally had been used by governments to suppress unfriendly criticism.
But if false statements of fact have no constitutional value, why should we care if newspapers are deterred from making them? Isn't such deterrence a good thing? The central insight of New York Times v. Sullivan - the insight that led the Court to re-frame the constitutional law of libel - was, in the words of Justice William J. Brennan, who wrote the Court's opinion, that "erroneous statement is inevitable in free debate" and that such errors "must be protected if the freedoms of expression are to have the 'breathing space' that they 'need to survive.'"
As Brennan explained, in a case like Sullivan the libel issue must be considered "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 officials."
Brennan's point was not that false statements of fact are desirable. It was, rather, that they are inevitable, and that for the government to hold speakers liable in damages for inadvertent false statements can have a severe "chilling effect" on their willingness to engage in precisely the sort of "uninhibited, robust, and wide-open" public discourse that our democracy needs.
Put simply, if people know that they can be held liable for even inadvertent misstatements, and that the judges and juries who will rule on whether their statements were accurate may themselves be hostile to their views, they will be afraid to say anything that might conceivably be deemed inaccurate. That "chilling effect" would dampen the vitality of public discourse and ultimately undermine our democracy.
In such circumstances, the Court held that, at least when a public official sues a speaker for damages for an allegedly false statement involving his performance of his official duties, the public official must prove (a) that the statement is false and (b) that the speaker spoke the words either knowing them to be false or with "reckless disregard" for the truth.
In the decades after Sullivan, courts have had to address a series of new issues: How should Sullivan apply if the plaintiff in a libel action is not a public official, but is instead a public figure, such as a movie star? How should it apply if the plaintiff is a private figure (the average Joe on the street), but the news story involves a public issue, such as an assertion that a particular private businessman bribed a senator? How should it apply if the false statement does not defame anyone, but is merely a false statement that distorts public discourse, such as a false statement by a political candidate that exaggerates her credentials or a false statement by a political commentator about the number of people killed in Syria?
The legacy of Sullivan is at least two-fold. First, by eliminating a significant deterrent to robust public discourse, it clearly enhanced the vibrancy of our democracy. Second, by reducing the consequences of false speech, it made possible not only more accurate statements, but more inaccurate ones as well. It therefore weakened as well as strengthened the overall quality of political debate. After all, if false statements of fact have no constitutional value in their own right, and they are misleading, distracting, and difficult to correct, then they can cause citizens to have inaccurate understandings of the world around them. (Consider, for example, the Swift Boat campaign against presidential candidate John Kerry in 2004 and the continuing assertions that Barack Obama is a Muslim who was born in Kenya.)
By making our public discourse more "robust, uninhibited, and wide-open," Sullivan therefore had negative as well as positive effects. For this reason, many other nations, such as England, do not follow the Sullivan principle. On balance, though, New York Times v. Sullivan remains one of the great Supreme Court decisions in American history. Remembering it today, and appreciating its impact on American democracy, is, once again, a reason "for dancing in the streets."