The Uninhibited Press, 50 Years Later

Perhaps no one understood both the necessity and the costs of a free press better than Thomas Jefferson. In a 1787 letter to a friend, he wrote, “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

Two decades later, Jefferson, by then a president battered by years of criticism, saw things differently. “Nothing can now be believed which is seen in a newspaper,” he wrote. “Truth itself becomes suspicious by being put into that polluted vehicle.”

This tension lies at the heart of the First Amendment’s guarantee that “no law” may abridge “the freedom of speech, or of the press.” How is society to preserve open criticism of the government, while also protecting individuals from libel, or the publication of damaging false statements?

Fifty years ago this Sunday, the Supreme Court answered that question with a landmark decision in New York Times v. Sullivan. The ruling instantly changed libel law in the United States, and it still represents the clearest and most forceful defense of press freedom in American history.

The case involved an ad that had appeared in The Times in 1960, condemning “an unprecedented wave of terror” against civil-rights demonstrators by “Southern violators,” particularly in Alabama. The ad was a plea for national attention, and for donations to support the movement. L. B. Sullivan, a Montgomery city commissioner, sued The Times for libel, claiming that the ad clearly targeted him, even if not by name, and that it contained numerous factual errors. Applying plaintiff-friendly libel laws, an Alabama state court awarded him $500,000.

The Supreme Court voted unanimously to overturn that verdict. The country’s founders believed, Justice William Brennan Jr. wrote, quoting an earlier decision, “that public discussion is a political duty, and that this should be a fundamental principle of the American government.” Such discussion, he added, must be “uninhibited, robust, and wide-open,” and “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

To the court, the civil-rights context was key: The ad was “an expression of grievance and protest on one of the major public issues of our time,” and Alabama officials could not shut down that criticism, even though it contained minor errors. “Erroneous statement is inevitable in free debate,” Justice Brennan reasoned, and “must be protected if the freedoms of expression are to have the breathing space that they need to survive.”

With this in mind, the court announced a new “actual malice” standard that requires a public official to prove that the defendant knew the statement was false, or recklessly disregarded its truth or falsity. (Private citizens rightly have a lower hurdle to clear; generally, they need only show that a falsehood is the result of negligence.)

The ruling was revolutionary, because the court for the first time rejected virtually any attempt to squelch criticism of public officials — even if false — as antithetical to “the central meaning of the First Amendment.” Today, our understanding of freedom of the press comes in large part from the Sullivan case. Its core observations and principles remain unchallenged, even as the Internet has turned everyone into a worldwide publisher — capable of calling public officials instantly to account for their actions, and also of ruining reputations with the click of a mouse.

But the government can upset the Sullivan case’s delicate balance by aggressively shutting down avenues of inquiry, as the Obama administration has done to an extreme degree in prosecuting those suspected of leaking classified documents, and even seizing reporters’ records. Uninhibited and robust criticism can go only so far without meaningful access to information.

Still, American press freedoms rank among the broadest in the world. Citizens and media organizations in countries from China to India to Britain do not enjoy the same protections. In many parts of the world, journalists are censored, harassed, imprisoned and worse, simply for doing their jobs and challenging or criticizing government officials. In this area of the law, at least, the United States remains a laudable example.