The Sullivan decision: Affirming the right to criticize government

By David Adler

For a nation grounded on the republican values of self-government and freedom of expression, both of which are served and constitutionally fortified by freedom of the press, the Supreme Court’s ruling in the landmark case of New York Times v. Sullivan (1964) provided all the reassurance that even the most demanding citizens could seek.

The “central meaning” of the First Amendment, Justice William Brennan declared in his opinion for a unanimous court, is the right to criticize government and public officials. The integral role of the press in our democracy, enshrined in First Amendment constitutional protection    “Congress shall make no law abridging freedom of the press” — commands respect for the right and duty of the press to inform the American citizenry and engage in public discussion. Freedom of the press, after all, was characterized by Thomas Jefferson as “the people’s right to know.”

That newspapers might make mistakes and misstatements in various stories and editorials, and even publish advertisements that include errors, which formed the basis of Montgomery Police Commissioner Sullivan’s libel suit against the Times, is to be expected. Justice Brennan noted that the advertisement contained “uncontroverted errors.” No profession or industry is free of errors, of course, but newspapers stand virtually alone in issuing corrections and apologies when they do make mistakes. Such principled behavior is befitting of the only profession mentioned in, and protected by, the Constitution.

The constitutional status of the free press, and its essential role in our democracy, explains the court’s ruling in Sullivan, and its introduction of a new test to govern actions for libel brought by public officials. In place of actual falsity as the basis for liability, a public official could recover damages for a defamatory falsehood relating to official conduct only by showing that 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.”

This new test — “reckless disregard of the truth” — raised the bar of protection afforded the press. Without this more rigorous standard, plaintiffs could, and did, threaten newspapers with libel suits which, if successful, could bankrupt newspapers and undercut their essential role in our democracy. The new test did not leave public officials without means to protect themselves. High office provided a suitable platform to contest and denounce newspaper stories that offended their reputations, well before commencing a lawsuit. Their response, moreover, might generate a correction from the newspaper.

The court, as Justice Brennan explained, was persuaded that the low bar for winning libel suits — actual falsity of the claim — resembled in its punitive characteristics the law of seditious libel, which at the time of America’s founding, imposed a chilling effect on criticism of governmental officials. Under that dark and infamous doctrine, as reflected in the Sedition Act of 1798, heavy fines and lengthy prison sentences awaited those convicted of unduly harming the reputations of a public official. The net effect, Justice Brennan reasoned, was to undercut freedom of expression. A low threshold for winning libel actions, and the “pain” of paying costly libel judgments, would impose a similar chilling effect on the citizenry and result in “self-censorship.”

Those newspapers that believed their criticisms of officials to be true but feared the difficulties of prevailing in court and the consequent financial ruin that would attend such failure, might well withhold their reports and commentary which, as Justice Brennan said, “thus dampens the vigor and limits the variety of public debate.”

Justice Brennan envisioned the First Amendment as promoting and protecting “open and robust” public debate which, in turn, required tolerance of errors, particularly when the mistakes involved “public officials.” He observed, “erroneous statement is inevitable in free debate and it must be protected if the freedoms of expression are to have the breathing space that they need to survive.” For support, Brennan invoked his patron saint, James Madison, who introduced the Bill of Rights and championed freedom of the press, despite his own misgivings about occasional newspaper errors. Madison declared: “Some degree of abuse is inseparable from the proper use of everything; and in no instance is this more true than in that of the press.”

In this Madisonian spirit, Justice Brennan wrote that “constitutional protection” cannot “turn upon the truth, popularity or social utility of the ideas and beliefs which are offered.” The inevitability of errors in “freedom of debate” requires their protection if the “freedoms of expression are to have the breathing space that they need to survive.”

The defense and preservation of democracy in America requires protection of that breathing space. Let us hope that courts agree to preserve the Sullivan standard and the protection it affords the robust and spirited debate essential to our freedoms and liberties.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at [email protected] and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.