Times v. Sullivan ushers in an uncertain new age of press freedom.

1. Libel and the media
Times v. Sullivan ushers in an
uncertain new age of press freedom

2. Elements of libel
• Defamation

3. Elements of libel
• Defamation
• Falsity

4. Elements of libel
• Defamation
• Falsity
• Fault
– Different standards for public officials (and
public figures) and private figures. But no
longer is libel a no-fault tort.

5. Elements of libel
• Defamation
• Falsity
• Fault
• Publication

6. Elements of libel
• Defamation
• Falsity
• Fault
• Publication
• Identification

7. Elements of libel
• Defamation
• Falsity
• Fault
• Publication
• Identification
• Harm

8. Elements of libel
• Defamation, falsity and fault are the most
important

9. Elements of libel
• Defamation, falsity and fault are the most
important
• Publication seems obvious, and yet it
became an issue in Times v. Sullivan

10. Elements of libel
• Defamation, falsity and fault are the most
important
• Publication seems obvious, and yet it
became an issue in Times v. Sullivan
• In terms of harm, some plaintiffs can be
considered “libel-proof”

11. Evolution of libel
• Falsity was not always an element of libel:
The greater the truth, the greater the harm

12. Evolution of libel
• Falsity was not always an element of libel:
The greater the truth, the greater the harm
• Fault was not an element of libel until the
1960s — it was a no-fault tort

13. Evolution of libel
• Falsity was not always an element of libel:
The greater the truth, the greater the harm
• Fault was not an element of libel until the
1960s — it was a no-fault tort
• How does requiring fault advance the
purpose of the First Amendment?

14. Libel versus slander
• What is the difference?

15. Libel versus slander
• What is the difference?
• Classic definition is that libel is written and
slander is spoken

16. Libel versus slander
• What is the difference?
• Classic definition is that libel is written and
slander is spoken
• Packaged television and radio reports have
blurred the difference. Today we talk
mainly about libel.

17. Libel versus slander

18. Can libel = prior restraint?
• In Near, Chief Justice Hughes wrote that
the Minnesota Public Nuisance Law
amounted to prior restraint

19. Can libel = prior restraint?
• In Near, Chief Justice Hughes wrote that
the Minnesota Public Nuisance Law
amounted to prior restraint
• Hughes cited Blackstone on post-
publication punishment

20. Can libel = prior restraint?
• In Near, Chief Justice Hughes wrote that
the Minnesota Public Nuisance Law
amounted to prior restraint
• Hughes cited Blackstone on post-
publication punishment
• Milton, in the Areopagitica, advocated
after-the-fact punishment, including death

21. What is the public’s interest?
• Could harm result from a libel system
under which all defamatory falsehoods may
be punished?

22. What is the public’s interest?
• Could harm result from a libel system
under which all defamatory falsehoods may
be punished?
• Should ordinary people be able to use the
libel laws in order to obtain justice?

23. What is the public’s interest?
• Could harm result from a libel system
under which all defamatory falsehoods may
be punished?
• Should ordinary people be able to use the
libel laws in order to obtain justice?
• How do we strike a balance?

24. Civil rights and libel
• As with Gitlow v. New York, the Times v. Sullivan
decision must be seen within the broader context of
the civil-rights movement

25. Anthony Lewis
• Wrote Make No Law,
a history of Times v.
Sullivan
• Retired New York
Times columnist
• Married to Margaret
Marshall, chief justice
of Mass. SJC

26. Ad on King’s
behalf
• Published in
New York Times
in 1960
• Contained several
minor errors

27. Four ministers also sued
• Rev. Ralph
Abernathy (right)
with King in
Alabama
• Idea was to keep
Sullivan’s suit in
state court

28. Times, ministers lose
• Found liable in
courtroom of judge
who presided at
re-enactment of
Jefferson Davis’s
inauguration
• $500,000 judgment
• Libel a state matter —
or is it?

29. Times v. Sullivan (1964)
• Unanimous decision written by
William Brennan
• Says Alabama court’s decision amounts to
punishment of seditious libel: criticism of
government officials
• Therefore, the Alabama court’s action is
unconstitutional under the First and
Fourteenth Amendments

30. William Brennan’s view
“Debate on public issues
should be uninhibited,
robust, and wide-open,
and … it may well include
vehement, caustic, and
sometimes unpleasantly
sharp attacks on
government and public
officials”

31. William Brennan’s view
“The present
advertisement … would
seem clearly to qualify
for the constitutional
protection. The question
is whether it forfeits that
protection by the falsity
of some of its factual
statements …”

32. William Brennan’s view
“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’ …”

33. Actual malice
• New standard of fault that public officials
must show to prove libel

34. Actual malice
• New standard of fault that public officials
must show to prove libel
• Knowingly false

35. Actual malice
• New standard of fault that public officials
must show to prove libel
• Knowingly false
• Reckless disregard for the truth

36. A libel earthquake
• 1967: Actual malice standard extended to
public figures as well as officials

37. A libel earthquake
• 1967: Actual malice standard extended to
public figures as well as officials
• 1974: Private figures must at least show
negligence to win a libel suit

38. A libel earthquake
• 1967: Actual malice standard extended to
public figures as well as officials
• 1974: Private figures must at least show
negligence to win a libel suit
• 1989: Reckless disregard is defined as
knowledge of probable falsehood

39. Disadvantages for media
• Opens press defendants up to examination
as to their state of mind

40. Disadvantages for media
• Opens press defendants up to examination
as to their state of mind
• Harms media credibility by creating a
cynical attitude among press critics

41. Disadvantages for media
• Opens press defendants up to examination
as to their state of mind
• Harms media credibility by creating a
cynical attitude among press critics
• Virtually no recourse for public official or
public figure

42. President Trump’s critique

43. President Trump’s critique
• Is Trump correct in saying that the media
can publish “purposely” false stories?

44. President Trump’s critique
• Is Trump correct in saying that the media
can publish “purposely” false stories?
• Do you think it would be possible for a high
public official to win a libel suit under any
circumstances?

45. President Trump’s critique
• Is Trump correct in saying that the media
can publish “purposely” false stories?
• Do you think it would be possible for a high
public official to win a libel suit under any
circumstances?
• Does the “actual malice” standard help
create mistrust of the media?

46. Case study: Dan Rather
• A 1980s case very
similar to the story
that brought him
down in 2004
• Won by testifying he
believed documents
were authentic
• If he had lost, could
Rathergate have been
avoided?