When the Supreme Court struck down so-called “aggregate” campaign contribution limits earlier this month [April 2], Chief Justice John G. Roberts Jr. cast the decision as in line with a long series of free-speech rulings. “If the First Amendment protects flag burning, funeral protests, and Nazi parades despite the profound offense such spectacles cause it surely protects political campaign speech despite popular opposition,” Roberts wrote.
Justice Antonin Scalia was not on the court at the time of the Nazi parade decision (National Socialist Party v. Village of Skokie, 1977), but he joined in the two other earlier decisions: Texas v. Johnson, 1989; and Snyder v. Phelps, 2011. Indeed, Scalia often boasts of his vote in the flag-burning case to prove his fidelity to originalist constitutional principles.
Scalia’s devotion to freedom of speech, however, has its limits. He draws the line at a landmark decision being celebrated this year on the occasion of its fiftieth anniversary: New York Times v. Sullivan. The court’s 1964 decision established the now famous rule that a public official cannot recover damages for libel unless he or she proves that the alleged defamation was made with knowledge that it was false or with reckless disregard as to its truth or falsity.
Appearing in a joint interview with Justice Ruth Bader Ginsburg on The Kalb Report [April 17], Scalia volunteered his disagreement with the decision. “It’s wrong,” Scalia said. “You cannot sue anybody for libel unless you can prove he knew it was a lie,” Scalia declaimed. The Framers “would have been appalled” by the ruling. The court “was revising the Constitution,” he continued, not interpreting it.
Ginsburg quietly demurred. If the Founding Fathers had been around in the 1960s, they would have approved of the decision, she said. Today, she added, the ruling is “well accepted.”
Indeed, the precedent is quite secure: no justice has called in a published opinion for reconsidering the ruling since Chief Justice Warren E. Burger and Justice Byron R. White did in separate opinions in a 1985 decision, Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. But Scalia’s was not the only dissenting voice heard during the 50th anniversary celebration. Writing for Bloomberg View last month [March 27], Harvard law professor Cass Sunstein echoed the complaint heard often from public officials that the ruling has left them with no protection against slanderous lies, especially from the news media.
Far from promoting democracy, Sunstein opined, the ruling has actually disserved self-government. “Talk show hosts, bloggers and users of social media can spread ugly falsehoods in an instant—exposing citizens to lies that may well cause them to look on their leaders with unjustified suspicion,” he wrote. The decision, he continued, “can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.”
With those complaints in mind, it is well to recall the case itself. The Times was called to answer in an Alabama courtroom, along with four leaders of Martin Luther King’s Southern Christian Leadership Conference, for an advertisement the civil rights group had placed in the newspaper in 1960. Montgomery police commissioner L.B. Sullivan was not named in the ad, but sued for libel on the theory that the criticism of “police” with minor factual discrepancies defamed him personally.
Sullivan won six-figure judgments against the Times and the civil rights leaders serious financial penalties for the newspaper, not to mention the civil rights leaders. The Alabama Supreme Court affirmed the judgments, blinking at Sullivan’s implausible theory of the case.
Unanimously, the Supreme Court reversed the decision and went further to order Sullivan’s suit dismissed altogether. Justice William J. Brennan Jr. rightly noted that Sullivan’s theory would have allowed libel suits for any criticism of government. And he surely captured the Founding Fathers’ spirit when he said the First Amendment reflects “a national commitment to the principle that debate on public issues should be robust, uninhibited, and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Despite the rhetorical flourish, Brennan actually crafted a compromise of sorts: the so-called “actual malice” test allows a public official to win a libel case by meeting the demanding burden of proof. Three justices Hugo Black, William O. Douglas, and Arthur J. Goldberg would have gone further and blocked libel suits by public officials for anything relating to their official duties.
The court fractured three years later in imposing the same burden of proof on public figures in libel cases. Over the years, the court has limited the impact of that decision by narrowing somewhat the definition of public figures. Still, it is undeniably true that libel cases are daunting for public official and public figure plaintiffs these days.
Importantly, this free-speech protection for libel defendants extends not just to the institutional press, but to anyone including the bloggers and social media users that Sunstein referenced. As Roberts acknowledged in the campaign contributions case, freedom of speech does come at a cost. But public officials and public figures know how to defend themselves in public debate without the chilling effect of hauling their critics into court. Fifty years out, Times v. Sullivan rightly deserves its place in the pantheon of First Amendment landmarks.