First Amendment Friday 7 – New York Times v Sullivan

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Happy Friday and welcome to the 6th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below

Originally posted at

First Amendment Friday 1 – Abrams v US

First Amendment Friday 2 – Gitlow v New York

First Amendment Friday 3 – Whitney v California

First Amendment Friday 4 – Brandenbrug V Ohio

First Amendment Friday 5 – Bridges V California

First Amendment Friday 7 – New York Times V Sullivan

This week we move out of the part of the syllabus called Sedition and on to the part called Defamation. The case we will be looking at is called New York Times V. Sullivan

The Facts:

In the mid-60’s a Montgomery Alabama County Commissioner sued the New York Times and several civil rights activists for liable in State Court. His charge was that an advertisement paid for by the activists defamed him by making statements that the police had acted against students protesting for civil rights.

It turned out that while there were 64 names listed on as the signatories to the advertisement none of them had actually given their consent to have their names used. Further some of the actions attributed to the police were not factually true. They were falsehoods or exaggerations of facts.

Below are a couple of paragraphs from the ad:

In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to reregister, their dining hall was padlocked in an attempt to starve them into submission.


Again and again, the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home, almost killing his wife and child. They have assaulted his person. They have arrested him seven times — for “speeding,” “loitering” and similar “offenses.” And now they have charged him with “perjury” — a felony under which they could imprison him for ten years. . .

Mr. Sullivan, though not ever mentioned by name in any of the accusations felt the fact that he was the Commissioner for Fire, Police and Public Safety in Montgomery Alabama meant these statements could only be direct criticisms of him.

The Judge at trail instructed the jury that such statements were per se libelous, meaning legal injury without proof of any actual damages. He further said that if the jury found these statements found to be published (which they were in fact) then malice was assumed so compensatory damages could be awarded. The Judge instructed on the issue of punitive damages that mere negligence is not enough to justify a finding of malice. However he refused to tell the jury that actual intent of harm and or recklessness should be determined before punitive damages could be awarded.

The jury found for the plaintiff and the State Supreme Court affirmed the verdict. The award, of damages was $500,000.

The Opinion:

There were no dissenting Justices’ on this case, though there were two concurring opinions. Justice Brenan wrote the main opinion.  

Justice Brennan took the State Court and State Supreme Court to the wood shed on this issue. There were problems with the way the Judge instructed the Jury in terms of what they should and should not consider in finding for the plaintiff.

Beyond that the Justice went on to point out that fact the 1st Amendment protections did extend to the State level. The fact there had been the Sedition Act of 1798 which states in part:

if any person shall write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress . . . or the President . . . with intent to defame . . . or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States.

Justice Brennan then goes on a long historical refutation of the idea this was ever a  protection afforded elected officials or those who were involved in issues of public concern.

He quotes Justice Brandeis in Whitney v California:

Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

(If you never read any other Supreme Court decision read that one in full)

The Justice was also concerned that if such civil libel were allowed to stand they would have the effect of a statute criminalizing criticisms of political officials he writes:

What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute. See City of Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N.E. 86, 90 (1923). Alabama, for example, has a criminal libel law which subjects to prosecution “any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude,” and which allows as punishment upon conviction a fine not exceeding $500 and a prison sentence of six months. Alabama Code, Tit. 14, § 350. Presumably, a person charged with violation of this statute enjoys ordinary criminal law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The judgment awarded in this case — without the need for any proof of actual pecuniary loss — was one thousand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times greater than that provided by the Sedition Act. And since there is no double jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication.  Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly the Alabama law of civil libel is.

Which is the primary point of his evisceration of this decision, however the majority opinion on this case did leave open the idea that if you are speaking with specific malice for the office holder and in terms of the performance of their job, this is not protected speech and could still be held as libelous.

Both of the concurring opinions argued against this very idea. Justice Black wrote:

I concur in reversing this half-million-dollar judgment against the New York Times Company and the four individual defendants. In reversing, the Court holds that

the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.

Ante, p. 283. I base my vote to reverse on the belief that the First and Fourteenth Amendments not merely “delimit” a State’s power to award damages to “public officials against critics of their official conduct,” but completely prohibit a State from exercising such a power. The Court goes on to hold that a State can subject such critics to damages if “actual malice” can be proved against them. “Malice,” even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides, at best, an evanescent protection for the right critically to discuss public affairs, and certainly does not measure up to the sturdy safeguard embodied in the First Amendment. Unlike the Court, therefore, I vote to reverse exclusively on the ground that the Times and the individual defendants had an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials. I do not base my vote to reverse on any failure to prove that these individual defendants signed the advertisement or that their criticism of the Police Department was aimed at the plaintiff Sullivan, who was then the Montgomery City Commissioner having supervision of the city’s police; for present purposes, I assume these things were proved. Nor is my reason for reversal the size of the half-million-dollar judgment, large as it is. If Alabama has constitutional power to use its civil libel law to impose damages on the press for criticizing the way public officials perform or fail to perform their duties, I know of no provision in the Federal Constitution which either expressly or impliedly bars the State from fixing the amount of damages.

He goes on to talk about the size of the award and the fact that there were more of these types of cases coming out of Alabama as the civil rights struggle heated up.  He concludes with:

An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.  

I regret that the Court has stopped short of this holding indispensable to preserve our free press from destruction.

This case seems to play right into the discussion of how to address the actions of the anti-reproductive rights groups in the face the murder of Dr. Tiller. While the Dog is vehemently opposed to changing the rights of people, even hateful obnoxious people to speak about issues of importance, it does seem that there are remedies in the civil liable laws for some of the most egregious statements of these groups.

It seems completely libelous, including malice, to call the provider of legal abortions a “baby murderer”. While this can not be prevented by the Government since is it is clearly political speech when addressed to the Government, on the level of the a private citizen to private citizen there is no protection for libelous speech. Perhaps we should encourage other Doctors to sue people like Bill O’Rielly for their statements meant to defame non public Doctors.

However, we are at the start of looking at defamation so the Dog thinks we should keep this idea in our pockets until we understand the full nature of the protections afforded by the First Amendment in this area.

So, there is this week’s case, what do you think citizens?

Housekeeping: The quotes from the case are provided by the Legal Information Institute and you can find the whole thing here.

The floor is yours.


  1. You are a citizen (well most of you are) you are allowed to have an opinion on this.  

    • Viet71 on June 5, 2009 at 7:14 pm

    have come to stand for this proposition:  A public figure (not just a public official) can establish that he or she has been libeled only by establishing “actual malice” on the part of the libelee (defendant in a libel suit).

    “Actual malice” is either (a) actual knowledge that the defamatory statement was false at the time it was published, or (b) reckless disregard as to whether the false statement was true or false.

    Keep in mind that truth is always a defense to a claim of libel.

    Keep in mind too that a statement of opinion, no matter how outrageous, is never libel.

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