NY Times v Sullivan (p.1316)

 Before we get to Sullivan, let me pose a hypothetical.

 Suppose the New York Times accurately reports that Senator X has taken bribes from several defense contractors.  As a result of this story, Senator X's career and personal reputation are destroyed.

Senator X, who admits the truth of the story, sues the newspaper, alleging that it published the story knowing full well that it would destroy him.  The newspaper moves to dismiss on the ground that its speech was protected by the First Amendment.  What ruling?  Why?

Now suppose the story was false.  Same ruling?  Why?

 Is there any value in false speech?

 

[FN 19 of the full text opinion in Sullivan quotes John Stuart Mill: “Even a false statement may be deemed to make a valuable contribution to public debate since it brings about the clearer perception and livelier impression of truth, produced by its collision with error.”]  See also p. 1319 (Sullivan: “[N]either factual error nor defamatory content suffices to remove the constitutional shield.”)

 What do you think of Mill’s perception?  Is it applicable when the falsehood relates to the character of an individual?

Sullivan is an interesting case, because it is set in explosive times – Montgomery, Alabama in 1964.

Supporters of the status quo desperately wanted to silence advocates of civil rights and racial equality.

 Was Sullivan’s lawsuit really a simple civil action for libel, or is this really a seditious libel case?

[ seditious libel: "a criminal offense to publish or otherwise make statements intended to criticize or provoke dissatisfaction with the government. Truth was not a defense and, in fact, made the offense worse."]

In one sense, it may be unfortunate that the Court used this case as a vehicle for making law for all defamation actions.  Because this case was not about Sullivan’s reputation being destroyed by false statements of fact, it is about the suppression of a political movement.

 

            What is the rule of Sullivan?

 

Page 1319:

The constitution “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”  Other cases establish that actual malice must be proven by “clear and convincing” evidence.

 The key element here is the scienter requirement – negligence will not suffice – the plaintiff must prove, by clear and convincing evidence (i.e. not by a mere preponderance), that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.  What does that mean?

 

            [See Nowak at p. 1038:

“The standard seems to be one of the knowing lie – at the time of the publication defendant must have known that the statement was false, or must have had serious doubts as to the statement’s truth and have published it despite these doubts.”]  [Id. at 1039:  “Reckless disregard” means that the defendant has a “high degree of awareness” of probable falsity.] Pl. must prove that the defamatory statement was in fact false and that it was made with reckless disregard.

 

Is Sullivan over-protective of free speech?  Why should negligent false and defamatory statements be protected?

            “It has been suggested that the Court undervalued the individual’s interest in reputation; failed to recognize that in measuring chilling effect one must consider the deterrence of false as well as true statements; and failed to recognize that its rule would drive capable people out of politics, thus undermining the very goals it sought to achieve.  Along similar lines, the Court might have retained strict liability but limited the amount and nature of recoverable damages.”  Stone T.M. at 104.

 

Does anyone think that Sullivan is under-protective of free speech? Why?

The “central meaning” of the First Amendment (p. 1319) – “the freedom to criticize government is essential to the existence of a free society.”

 

  Who is a public official for purpose of Sullivan?

 

 Am I a public official?

 

 Dean Moberly?  A public school teacher?  Police officer?

 

 The janitor?  A secretary or copy clerk?

 

[See Nowak at 1041 (discussing Rosenblatt v. Baer, 383 U.S. 75 (discharged supervisor of a county-owned ski resort is a public official)  (government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs): “Thus, while persons occupying low level technical positions might not be included in this category, any government employee with discretionary power in matters of public interest should be considered a public official.”]

 

   [Nowak at 1095 - suggests a public school teacher is a “public official” for this purpose]

 

 Suppose members of the news media (MSNBC perhaps) continually called a candidate for the Presidency "Hitler, literally Hitler." If the victim of these many, clearly untrue, libelous statements wins a large judgment in a libel action, are these statements protected by the First Amendment under New York Times? Should they be protected?