A Democracy Story: Reframing a Free Speech Landmark

Thomas Healy* April, 2024

Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan. By Samantha Barbas. Oakland: University of California Press. 2023. Pp. 1, 230. $29.95.

Introduction

What can we learn about the wisdom and legitimacy of current free speech doctrine by revisiting the story behind a landmark First Amendment decision? That’s the question that hangs over Samantha Barbas’s¹ new book, Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, which chronicles the 1964 Supreme Court ruling that abolished the crime of seditious libel and gave us the actual malice standard that governs much of defamation law today.²

On the one hand, the timing of Barbas’s book is promising. The Sullivan rule—and its extension in later cases—has come under fierce attack in recent years. Donald Trump assailed it on the campaign trail in 2016,³ several scholars have published forceful critiques of it,⁴ and the Florida legislature recently considered a law that would repudiate it.⁵ In addition, two Supreme Court justices—Clarence Thomas and Neil Gorsuch—have expressed a desire to reconsider the case (Justice Thomas says it should be overruled on originalist grounds,⁶ Justice Gorsuch that it should be rethought for policy reasons⁷), while a third justice—Amy Coney Barrett—has yet to expressly endorse it.⁸ The Court’s recent decision in Counterman v. Colorado suggests that Sullivan is on safe ground for now; there, the Court relied upon Sullivan in adopting a recklessness standard for cases involving true threats.⁹ Still, it’s safe to say that Sullivan is under more sustained attack now than at any time since it was decided sixty years ago. Exploring the history of the case and examining how and why the Court adopted the actual malice rule can help shed light on the validity of that attack.

On the other hand, there is already a book that fits that bill: Make No Law, the 1991 account of Sullivan by the long-time New York Times columnist and legal correspondent Anthony Lewis.¹⁰ Make No Law was lavishly praised when it came out,¹¹ and rereading it now, three decades later, one can see why. Written with Lewis’s trademark elegance and clarity, it relates the dramatic story behind the Sullivan case: how a civil rights group placed an advertisement in the New York Times to raise money for the legal defense of Martin Luther King Jr.; how an Alabama official seized on minor errors in the ad to win a defamation judgment of half-a-million dollars against the Times and four civil rights leaders; and how the Court set aside that judgment and Alabama’s strict libel law as inconsistent with “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”¹² Make No Law situates Sullivan within the history of the First Amendment and serves up behind-the-scenes details of the Court’s deliberations drawn from the papers of Justice William Brennan, the decision’s author. The book also offers a sophisticated analysis of the ruling’s strengths and weaknesses, as well as a thorough examination of its extension in later cases.¹³ In short, Make No Law is a classic of the case biography genre that Lewis pretty much invented with his first book, Gideon’s Trumpet.¹⁴

The challenge for Barbas, therefore, is to say something new—to reveal something about the decision, its background, or its afterlife that we don’t already know. In an interview shortly after publication, Barbas explained that she decided to write Actual Malice after stumbling upon the litigation files of the New York Times, which apparently were not available to Lewis.¹⁵ These files offer fresh details about the Times’ aggressive approach to libel suits. Not only did the paper’s founder, Adolph Ochs, strictly forbid settlement (“any amount for defense, not a penny for tribute by way of settlement” was the policy),¹⁶ but he also used the paper’s vast resources to scare off potential plaintiffs and, if that didn’t work, wear them down through costly litigation (p. 17). The Times went so far as to employ “libel detectives” whose job was to dig up dirt on its legal adversaries (p. 18), a practice that bears an eerie resemblance to the ruthless tactics of sexual predators like Harvey Weinstein that would later be exposed and condemned by the Times itself.¹⁷

Barbas also relies on the Times’s files to flesh out the story of how southern officials deliberately and effectively used libel suits to stifle coverage of segregation and undermine the civil rights movement (pp. 5, 38). In addition to the suit filed by Montgomery Public Affairs Commissioner L.B. Sullivan, the Times faced suits by four other Montgomery officials for the same ad.¹⁸ It faced another seven suits by Birmingham officials for a series of articles by a reporter named Harrison Salisbury. Those suits, which Make No Law discussed only briefly, exposed the Times to crippling financial liability that, along with a strike by the printers’ union, made bankruptcy a real possibility (pp. 84–86, 173). Salisbury, meanwhile, was indicted for seditious libel and faced a possible jail sentence of twenty-one years (pp. 100, 165–66). And the Times wasn’t the only media organization under threat. Officials in Alabama and other southern states sued CBS, the Associated Press, the Saturday Evening Post, and even Ladies’ Home Journal for their coverage of the civil rights movement and the South’s brutal response to it (pp. 2, 154). By 1964, Barbas reports, southern officials had brought a total of seventeen libel suits, seeking damages of more than $288 million, against northern media companies (p. 154).

The goal, of course, was to force the national press out of the South, thereby depriving the movement of the media attention that was vital to its success.¹⁹ And it worked. On the advice of its lawyers, the Times pulled its reporters out of Alabama for two and a half years while it defended the Alabama cases (pp. 86–87). The paper also killed at least one story about the South for fear of another libel suit and refused to run an ad by the Southern Christian Leadership Conference for the same reason (pp. 144, 175). These details, some of which Barbas recounts for the first time, provide important context to the Sullivan decision, supporting the Court’s conclusion that unchecked libel suits would chill media coverage of the civil rights movement and that a legal standard was needed that would give the press breathing space to report on the situation in the South. To critics who doubt that the actual malice standard was necessary to accomplish this purpose, Barbas’s dogged research provides a powerful rebuttal.

I. The “Forgotten Defendants”

But Barbas’s motivation for writing Actual Malice is not just to add a few illuminating details. Rather, her goal is to reframe the story of Sullivan, to shift the focus from the issue of free speech to that of racial equality. “Sullivan was a freedom of speech case, but it was also a civil rights case and should be understood and memorialized as such,” she writes, adding that the “civil rights context of the case has been diminished in most of the subsequent accounts” (pp. 223–24). To aid this effort, she drew not just on the Times files but also on the papers of Martin Luther King Jr. and his Southern Christian Leadership Conference, which was heavily involved in the Sullivan case (p. 5).

Like many authors justifying or promoting their work, Barbas is probably overstating her claim here. The civil rights angle of Sullivan was obvious from the beginning and has featured prominently in most discussions of the case. In his seminal article on Sullivan shortly after the decision was issued, First Amendment scholar Harry Kalven described the case as “a major instance of the important consequences of the civil rights issue and the apparatus of protest that accompanies it.”²⁰ Thirty years later, in a review of Make No Law, then-Professor Elena Kagan observed that the case “arose from the crucible of the civil rights struggle.”²¹ Lewis himself devoted significant space to the ruling’s civil rights context, explaining how the movement’s leaders consciously adopted a strategy that depended on media coverage and how a ruling against the Times might have stopped the movement in its tracks. “If the Court had allowed Sullivan’s judgment to stand,” he wrote, “the results would have been disastrous for the civil rights movement and the American press.”²²

But it is fair to say that Make No Law is primarily a book about free speech with a civil rights component, whereas Actual Malice is a book about civil rights with a free speech component. One can see this in the structure of the two works. Lewis interrupts his narrative of the events in Alabama for a fifty-page digression on the history of free speech.²³ Barbas plows through the same material in just five pages (pp. 25–29), leaving her free to devote large chunks of her book to key moments in the civil rights struggle, including the Montgomery bus boycott, the sit-in movement, the freedom rides, and the Birmingham protests.

There are real benefits to Barbas’s approach. Putting the civil rights movement at the center of the story reminds us how deeply the law has been shaped by the legacy of slavery and segregation. It also reminds us of the crucial role free speech has played in the effort to overcome that legacy. These are useful and timely lessons. In recent years, some liberals have expressed concern that advocates of racial justice have turned their back on free speech.²⁴ Rather than viewing expressive liberty as an ally in the quest for equality, these liberals worry, young activists increasingly see it as an obstacle.²⁵ Whether these concerns have merit is debatable.²⁶ It is possible that activists today simply have a different understanding of the scope of free speech—that when it comes to hate speech, for instance, they weigh the costs and benefits differently than the Court does.²⁷ But whether they are renouncing free speech or simply calling for a recalibration, it is important that such judgments be informed by an accurate picture of the historical relationship between free speech and equality. By emphasizing how a victory for free speech in Sullivan served the cause of civil rights, Actual Malice helps bring that picture more fully into focus.

Barbas’s reframing of the story also makes clear that the “libel attack” launched by southern officials didn’t just threaten the national media; it threatened the leaders of the civil rights movement, four of whom—Ralph Abernathy, Fred Shuttlesworth, Solomon Seay, and Joseph Lowery—were defendants in the suit brought by Sullivan. These men, all ministers living in Alabama, had nothing to do with the ad in the Times; the ad’s authors added their names at the last minute to give their fundraising appeal added heft.²⁸ Yet, although they bore no culpability for the ad’s misstatements (unlike the Times, which failed to follow its own vetting procedures), the ministers suffered grievously (p. 111). Alabama officials seized their cars and property and garnished their salaries to satisfy the judgment against them, causing two of them to move out of the state (pp. 127–29). One of the ministers’ lawyers, Fred Gray, referred to his clients as the “forgotten defendants” (p. 112), a point driven home by the Supreme Court’s failure to mention them by name in its opinion or to address the separate legal claims they raised in their defense.

Those claims were quite different from the ones raised by the Times. Rather than focusing on the First Amendment, the ministers highlighted the flagrant racism of the trial judge, Walter Jones, a white supremacist with a fondness for the Confederacy and young boys.²⁹ Three years before he presided over the Montgomery cases, Jones wrote a column for a local newspaper with the title “I Speak For the White Race,” in which he objected to “intermarriage and mongrelization of the American people” (p. 104). The day before the first trial began, he participated in an event reenacting the swearing-in of Confederate President Jefferson Davis (p. 102). Throughout the proceedings, Jones belittled the ministers and their lawyers, and when Black spectators filled the courtroom in support of them, he ordered the room to be segregated by race. In response to the ministers’ argument that this violated their right to equal protection of the laws, Jones declared that “the XIV Amendment has no standing whatever in this court, it is a pariah and an outcast” (pp. 121–22). As if that wasn’t bad enough, all the jurors in Sullivan’s case were white, and a local newspaper printed their names and pictures on its front page, as if daring them to rule against the commissioner (p. 106).

Barbas does an excellent job recounting this travesty. And although many of the details have been told before, it is still shocking to read them again and remember that we are only a few generations removed from a time when a state judge could declare that his courtroom would be ruled not by the Constitution but by “white man’s justice” (p. 121). Sometimes, it is worth revisiting a moment in history for no other reason than to ensure that we don’t forget how shameful much of our past is. In telling the story not just of New York Times v. Sullivan but of its companion case, Abernathy v. Sullivan,³⁰ Barbas does her part to keep that memory alive. She also restores a measure of dignity to the “forgotten defendants” by giving them a prominent place in the narrative rather than relegating them to the status of bystanders, as historians and legal scholars have so often done with people of color. Unfortunately, her publisher didn’t get the memo. The book’s cover photo³¹ inexplicably shows three gray-haired white men (the Times lawyers who argued the case) standing in front of a poster-size copy of the offending ad. With due respect to the University of California Press, it’s a shame that an editor didn’t insist upon cover art more suitable to the story Barbas is telling.

II. Free Speech and Neutral Principles

If there are benefits to Barbas’s reframing of the story, there are also risks. The primary one is that portraying Sullivan as a civil rights case will weaken its force as a free speech precedent, implying that the decision was the result of special circumstances and that the rule handed down is therefore not generally applicable. One can see shades of this argument in some of the attacks on Sullivan. Almost no one argues that the Court should have ruled in favor of L.B. Sullivan or that Alabama’s strict libel law should have been left completely untouched.³² Instead, most critics accept the outcome, while suggesting that sympathy for the civil rights movement exerted a kind of hydraulic pressure on the Court, leading it to adopt a rule that can’t be justified outside the parameters of Sullivan itself.³³ The claim, in other words, isn’t that the Court got the judgment wrong; it’s that the judgment was so obviously right that the justices lost their heads and went further than law or logic would allow. “The actual malice rule of New York Times v. Sullivan is iconic because of its beneficiaries, not its reasoning,” writes David McGowan in a recent article calling for an end to that rule.³⁴ “Benefits to civil rights advocates, and the intolerable prospect that libel laws could be used to suppress reporting of Southern racism, give the case its moral force.”³⁵

This is a common critique of many Warren Court decisions: that the Court, in an effort to do the right thing on issues of race, departed from neutral principles of law and established precedents that can’t be justified in other contexts.³⁶ The most famous version of this argument was made by Herbert Wechsler in response to Brown v. Board of Education.³⁷ Wechsler didn’t argue that Brown was wrongly decided—only that the Court’s reasoning was unpersuasive—but his criticism implied that the judgment was influenced more by extrinsic considerations than legal analysis.³⁸ Such criticism of the Warren Court was so common that early supporters of Sullivan worried it would be seen through a similar lens. In his 1964 article on Sullivan, Harry Kalven wrote that “even a cursory examination of the case reveals that the decision was responsive to the pressures of the day created by the Negro protest movement and thus raises the question so frequently mooted whether the Supreme Court has adhered to neutral principles in reaching its conclusion.”³⁹

By framing Sullivan as a civil rights case that happens to involve free speech (rather than the other way around), Barbas arguably provides support for this critique. Focusing on the threat to the civil rights movement, detailing the attack on its leaders, exposing the racism that pervaded the Alabama justice system—all of this bolsters the view that the Court got the outcome right. But it doesn’t necessarily advance the claim that the Court got the rule right for defamation law more generally. It may do the opposite, since zeroing in on the particulars of a case tends to obscure its universal dimensions.

Wechsler, who represented the Times before the Supreme Court, unsurprisingly took a different tack. He downplayed the civil rights aspect of the case, alluding to it only in passing in his brief and at oral argument.⁴⁰ This strategy was no doubt influenced by concerns that an emphasis on race might alienate some members of the Court. But it was also designed to make a larger point—that what was at stake was not just the civil rights movement but democracy itself. To support this thesis, Wechsler analogized the lawsuits brought by Sullivan and other southern officials to common law prosecutions for seditious libel. This was the most innovative part of his argument, and credit for it goes not to Wechsler but to Max Frankel, his colleague at Columbia Law School. Frankel knew that treating the case as an ordinary libel suit was unlikely to succeed since the Court had stated repeatedly that libel was outside the protection of the First Amendment. So, he persuaded Wechsler to pursue what he called “a Sedition Act strategy” (p. 165).

The first step in this strategy was to discredit the Sedition Act of 1798. Passed by the Federalist-dominated Congress to silence its political enemies, the Sedition Act prohibited “false, scandalous and malicious” statements about the president, members of Congress, or the federal government.⁴¹ Fourteen men were prosecuted under the law, including the editors of several leading newspapers and a member of the House of Representatives.⁴² Lower courts upheld the law, but James Madison and Thomas Jefferson forcefully condemned it in resolutions adopted by the Virginia and Kentucky legislatures.⁴³ More significantly, the controversy over the law contributed to the defeat of the Federalists in the 1800 election and to Jefferson’s ascension to the presidency.⁴⁴ Describing the law as a “nullity,” Jefferson pardoned those convicted under it, and Congress later repaid some of the fines levied under it.⁴⁵ According to Wechsler, this was evidence that the Sedition Act had been rejected by the “verdict of history” as “inconsistent with the First Amendment” (p. 169).

The next step was to draw a direct line between the Sedition Act and the Alabama libel law in question. Although the two laws appeared different on the surface—the Sedition Act was a criminal provision banning criticism of government officials while Alabama’s libel law provided a civil remedy to protect personal reputation—Wechsler argued that they raised similar concerns (pp. 169–70). Like the Sedition Act, the Alabama libel law provided scant protection for criticism of public officials. Defamatory statements were presumed false, and the speaker’s state of mind was irrelevant. Even if speakers acted in good faith, they could still be held liable for any false and defamatory statement they uttered. The only defense was to prove the truth of the statement “in all its particulars,” a burden that rested with the speaker (p. 1). As Wechsler put it in his petition for certiorari to the Court, the Alabama law “transform[ed] the action for defamation from a method of protecting private reputation to a device for insulating government against attack” (p. 169). It was “indistinguishable in its function and effect from the proscription of seditious libel” (p. 169), he added, and could stifle the “free political discussion” that is “the very foundation of constitutional government.”⁴⁶

The connection Wechsler drew between the Alabama libel law and the Sedition Act, while it seems obvious in retrospect, was novel at the time. As Lewis observed in Make No Law, “[i]t was a striking insight now to equate the civil libel judgment won by Commissioner Sullivan with the punishment of ‘sedition.’ ”⁴⁷ But the point was not just to relate ordinary libel law to seditious libel; it was to show how a case arising out of the civil rights movement implicated larger concerns about democracy. Wechsler wanted the justices to see the effect that libel suits like Sullivan’s would have not just on the struggle for racial justice but on public debate more generally. “Whatever other ends are also served by freedom of the press, its safeguard, as this Court has said, ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,’ ” Wechsler wrote in his brief (p. 181). Discussing the case with a correspondent after the decision came down, he made the point more explicitly: “[T]he sort of difficulty now dramatically presented in the South is one that is likely to arise anywhere throughout the country.”⁴⁸

The lawyers for the ministers followed a similar strategy. Although their brief focused on the racial discrimination that infected the trial, they also addressed the free speech claim. In doing so, they took pains to stress the universal nature of their complaint. “If this case stands unreviewed and unreversed, not only will the struggles of Southern Negroes towards civil rights be impeded, but Alabama will have been given permission to place a curtain of silence over its wrongful activities,” they wrote. “This case, moreover, has impact and meaning throughout our country. What minority can call itself safe now? Who will speak out for an oppressed minority? Today it is the Southern Negro being persecuted. Yesterday it was the Japanese-Americans. Who shall it be tomorrow?” (p. 171).

These arguments resonated with the Supreme Court, which may explain why it didn’t focus on the ministers or the civil rights movement in its opinion. As Justice Hugo Black put it in a concurring opinion that called for absolute protection against libel suits brought by public officials, Alabama’s harassment and punishment of “a free press—now that it has been shown to be possible—is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make, local as well as out-of-state, newspapers easy prey for libel verdict seekers.”⁴⁹ The national media expressed a similar view. According to Barbas, “[n]ewspapers praised the Court for writing an opinion that was not limited to the civil rights field” (p. 218).

As did Lewis in Make No Law. Although he made clear the connection between the case and the civil rights movement, he seemed intent on emphasizing the decision’s broader implications. “Commissioner Sullivan’s real target was the role of the American press as an agent of democratic change,” Lewis wrote. Sullivan and the other officials who sued “were trying to choke off a process that was educating the country about the nature of racism and was affecting political attitudes on that issue. Thus in the broadest sense the libel suits were a challenge to the principles of the First Amendment.”⁵⁰

Barbas does not deny or dispute any of this. She recognizes that Wechsler’s strategy depended on the use of a wide-angle lens, that zooming out from the particular to the general was essential to his victory. “Wechsler had taken a libel case and turned it into an opportunity for grand First Amendment theorizing,” she writes (p. 180). Nor does Barbas suggest we ignore the broader lessons of Sullivan that Lewis emphasized. Nonetheless, her effort to reframe the case, to shift our focus back to the particular, risks obscuring those broader lessons. More concerning, it invites critics to discount Sullivan, to treat it as one more example of the Court departing from sound principles of law to remedy a moral wrong.

This is not to say that Barbas is wrong to highlight the civil rights context of the Sullivan decision. But doing so is not enough to fully capture the significance of the decision. What makes Sullivan a great decision is not just that the Court came to the rescue of the civil rights movement. It’s that, in the process, the Court came to the rescue of democracy. For no other moment in our nation’s history shows the power of democracy as vividly as the struggle for civil rights. American independence was won not through the ballot box and sustained protest but through violent revolution. The abolition of slavery required a long and bloody civil war. Even the New Deal resulted less from democratic choices than from economic necessity growing out of the Great Depression. The civil rights movement is our greatest protest movement—our greatest illustration of democracy at work. And free speech, as protected in Sullivan, was crucial to its success.

Near the end of Actual Malice, Barbas writes that “Sullivan may have been one of the most consequential Supreme Court decisions for the advancement of the civil rights movement” (p. 221). She might have gone further, asserting that it is one of the most consequential decisions for the advancement of democracy. Sullivan is not just a civil rights story. Nor is it merely a “A Libel Story,” to quote the title of Kagan’s review of Make No Law.⁵¹ It is, at heart, a democracy story.

III. Sullivan Today

Is it more than a democracy story? Does the story behind Sullivan justify not just the freedom to criticize public officials like L.B. Sullivan but the larger framework of defamation law that grew out of the case? Kagan was skeptical. She argued that there were two levels of generality at which Sullivan might operate. The first involved the black-letter law of defamation, while the second involved broader First Amendment principles.⁵² Kagan thought Sullivan worked at the second level, but not the first. And she faulted the Court—and Lewis—for using the case to support an entire corpus of defamation law. In her view, this represented “an effort to fit the square pegs of many defamation cases into the round holes of Sullivan.”⁵³

In some respects, Kagan’s critique is an odd one. It’s true that the story of Sullivan doesn’t justify all the ways defamation law has developed since 1964. But it would be odd if it did. Stories are not told to explain minutiae; they are told to illustrate fundamental principles, to get at the central meaning of things. To fault the Court, Lewis, or Barbas for telling a story that doesn’t account for the various ways Sullivan has been extended over the years is to misunderstand the nature and purpose of storytelling.

At the same time, we might expect those who tell such stories to attempt further elaboration, to take what they have learned at the fundamental level and relate it to the concrete and specific problems courts face every day. Lewis responded to this expectation in a lengthy final chapter of Make No Law titled “Back to the Drawing Board?”⁵⁴ It was here that he defended the application of the actual malice rule not just to defamation suits brought by public officials, but to those brought by public figures.⁵⁵ According to Lewis, that extension had been worked out by the normal process of common law decisionmaking. After dealing with criticism of government officials, the Court confronted the next logical question, which was whether similar protections were needed for criticism of other prominent individuals.⁵⁶

For the Court, the answer was clear, at least for individuals who play an important role in society or interject themselves into public debate. To have drawn the line at those officially employed by the government, the Court understood, would have been arbitrary. It also would have missed the point of Sullivan. Government officials were not the only ones suppressing the civil rights movement. The “southern violators” described in the Times ad—the ones who bombed King’s house, who threatened and intimidated him, who assaulted him and others seeking to exercise their rights—included numerous nongovernmental actors.⁵⁷ And there was no reason to think such actors would not also resort to libel law to suppress criticism of their role in defending segregation. In fact, that was precisely what happened in Associated Press v. Walker, one of the two companion cases in which the Court extended the actual malice rule to public figures.⁵⁸ The plaintiff in Walker was a retired general who, as a private citizen, had incited violent protests against the enrollment of James Meredith at the University of Mississippi and then sued the Associated Press for reporting on his actions. Recognizing the similarities between his case and Sullivan, the Court dismissed the suit for failure to meet the actual malice standard.⁵⁹ To a majority of the justices, the result in Walker followed naturally from Sullivan. If the “central meaning” of the First Amendment is to make space for speech that is vital to democracy, as the Sullivan Court indicated,⁶⁰ then criticism of Edwin Walker deserved just as much protection as criticism of L.B. Sullivan.

Of course, not all extensions of Sullivan are this neat, as Lewis was quick to acknowledge.⁶¹ The case that seemed to give him the most pause involved the singer and entertainer Wayne Newton, who sued NBC for a report implying he had secretly partnered with organized crime when he purchased the Aladdin Hotel and Casino in Las Vegas.⁶² Newton won a jury verdict of $19 million that was set aside after a federal appellate court ruled he had not shown that NBC acted with actual malice.⁶³ Noting that Newton had little involvement in public policy, Lewis wrote that the case was “a long way from the Alabama lawsuit that led the Supreme Court to bring libel within the First Amendment.”⁶⁴ He also expressed sympathy for celebrities subject to the prying eyes of the media, asking why “inaccurate gossip about their private lives” should “deserve an especially high standard of First Amendment protection.”⁶⁵ Yet, even Newton’s case might be thought to implicate the democracy concerns at the heart of Sullivan. The role of organized crime in the casino industry is unquestionably of public interest, and NBC correctly reported that Newton had testified falsely before the Nevada gaming board.⁶⁶ It’s also worth noting, in light of subsequent political developments, that the line between entertainers and public officials is often a thin one and that today’s actor, wrestler, rapper, or reality television star might very well be tomorrow’s political candidate.⁶⁷

Have the courts gotten every extension of Sullivan right? Probably not. As with any area of law, defamation law has generated rules and decisions that are questionable. One doctrine that might be ripe for reconsideration is that of the involuntary public figure. Although most public figures become so through voluntary efforts to achieve fame or influence public debate, the Supreme Court has left open the possibility that one can become a public figure involuntarily,⁶⁸ and some lower courts have recognized such involuntary public figures.⁶⁹ This is arguably a misguided doctrine, leaving otherwise private individuals vulnerable to defamation simply because they have the bad luck to become swept up in public controversy.⁷⁰ But even if this doctrine is wrong, that would suggest only that it should be changed, not that the entire Sullivan framework should be abandoned.

While Lewis spent considerable energy grappling with the various extensions of Sullivan, Barbas has relatively little to say about the current state of defamation law. She acknowledges the recent criticisms of the Sullivan framework and suggests that some of the claims have merit (pp. 3–4). But she doesn’t directly address the claims or make clear exactly where she stands in the ongoing debate.

That debate has two fronts. The first revolves around an originalist argument made by Justice Thomas in several recent opinions⁷¹ as well as by Judge Laurence Silberman of the D.C. Circuit before his death last year.⁷² According to Justice Thomas (quoting Judge Silberman), the “Court’s pronouncement that the First Amendment requires public figures to establish actual malice bears ‘no relation to the text, history, or structure of the Constitution.’ ”⁷³ Stated so broadly, this is a highly dubious assertion. The First Amendment’s command that “Congress shall make no law . . . abridging the freedom of speech” is far more consistent with the actual malice standard—or even Justice Black’s call for absolute protection from libel suits—than it is with Alabama’s strict libel law.⁷⁴ But even if we ignore the First Amendment’s text and focus solely on history, Justice Thomas’s claim still comes up short. As Matthew Schafer demonstrates in an exhaustively researched paper for the Media Law Resource Center (MLRC), the Supreme Court did not invent the actual malice rule of Sullivan out of whole cloth in 1964.⁷⁵ It grew out of founding-era cases and commentary that rejected the strict libel law of English common law and recognized the value of free and open debate about public officials and public figures, even at the expense of private reputation.⁷⁶ Schafer doesn’t claim that the actual malice rule was firmly in place by the time the First Amendment was ratified. But he shows how courts in the late eighteenth century recognized privileges for speech that were expanded upon in the nineteenth century and are direct precursors to the Sullivan rule.⁷⁷ At a minimum, this paper makes clear that Justice Thomas’s originalist claim is highly contestable. It also illustrates, once again, the folly of relying exclusively on a method of constitutional interpretation so inaccessible to most lawyers, judges, and the general public.

The other front in the Sullivan debate revolves around a question of policy: Does the Sullivan regime actually serve the interests of democracy, as the Court and Lewis believed? Or does it distort public debate by immunizing false statements about government officials? This is the question raised recently by Professors David Logan and David McGowan, as well as by Justice Gorsuch.⁷⁸ They claim that current First Amendment doctrine provides no accountability for speakers who defame public officials. As Logan argued in a 2020 article titled Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan, “the threat that defendants today face from libel litigation is virtually nil.”⁷⁹

Logan likely spoke too soon. In the three years since his article was published, plaintiffs have won a number of high-profile defamation suits. There was Johnny Depp’s successful suit against his ex-wife Amber Heard, which resulted in a jury award of $15 million;⁸⁰ E. Jean Carroll’s $5 million judgment against Donald Trump;⁸¹ and Fox News’s settlement with Dominion Voting Systems for three-quarters-of-a-billion dollars.⁸² In addition, the New York Times was forced to defend a lengthy defamation suit brought by Sarah Palin.⁸³ The Times ultimately won but not before it was forced to go to trial and incur substantial costs in legal fees.⁸⁴ In light of these and other notable judgments, it’s a stretch to claim that current defamation law provides no accountability or that the threat of lawsuits is not real.

In fact, data from the MLRC shows just the opposite. In the two decades after Sullivan, the number of libel suits in federal courts increased so dramatically that Professor Rodney Smolla declared the country was “in the midst of a rejuvenation of the law of libel.”⁸⁵ Other legal scholars agreed. Writing on the twentieth anniversary of the ruling, Judge Bork, who typically took a narrow view of the scope of the First Amendment,⁸⁶ expressed concern that a “remarkable upsurge in libel actions, accompanied by a startling inflation of damage awards, has threatened to impose a self-censorship on the press.”⁸⁷

The pendulum swung the other way in the next couple of decades, and the number of libel suits declined. But as the MLRC’s data shows, the drop was consistent with a more general decline in case filings.⁸⁸ In other words, as a percentage of all civil suits, libel suits remained relatively consistent from 1980 to 2017.⁸⁹ And the MLRC has presented evidence that, in the past decade, the number of libel suits has increased again.⁹⁰

In addition to claiming there is no accountability under Sullivan, critics argue that the actual malice rule has incentivized journalists not to investigate the truth for fear that doing so will make it easier for plaintiffs to prove the journalists knew their statements were false.⁹¹ In the words of Justice Gorsuch, “[i]t seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy” such that “ignorance is bliss.”⁹² Journalists, and the lawyers who defend them, tell a very different story. In their account, even meritless litigation is expensive and worth avoiding.⁹³ Consequently, their top priority under Sullivan is to not make factual mistakes. “The easiest way to avoid such lawsuits is to publish accurate stories, and to provide evidence to readers in stories themselves on the most contentious elements of those stories,” write Richard Tofel and Jeremy Kutner,⁹⁴ the former president and general counsel of ProPublica, respectively.⁹⁵ “This is the farthest thing from ‘ignorance is bliss.’ ”⁹⁶ The data back them up. According to the MLRC, more than one-fifth of suits against major media defendants that are terminated at the motion to dismiss stage are resolved on grounds that the statements were true.⁹⁷

A third criticism is that Sullivan has increased litigation costs because extensive discovery is necessary to determine whether the actual malice standard has been met.⁹⁸ There’s no doubt discovery is more expensive under the actual malice standard than it would be under either a regime of strict liability, like the one that existed in Alabama prior to Sullivan, or absolute protection for speech, as advocated by Justice Black. Under either rule, parties would not need to litigate what a speaker knew or how egregious his behavior was. But few serious scholars embrace either of these rules. And a negligence standard, which is the most oft-mentioned alternative,⁹⁹ would be unlikely to lower litigation costs. In fact, it seems clear that switching to a negligence standard would increase litigation costs. Negligence is an easier standard to meet than actual malice, which means fewer cases would be terminated at the motion to dismiss stage.

The final claim is that Sullivan’s actual malice standard has promoted misinformation. As Logan puts it, “with more than half a century of perspective, it is now clear that the Court’s constraints on defamation law have facilitated a miasma of misinformation that harms democracy by making it more difficult for citizens to become informed voters.”¹⁰⁰ McGowan also invokes the spread of misinformation as a reason for both political parties to support revisiting Sullivan.¹⁰¹ Liberals, as much as conservatives, he argues, have reason to be concerned about the state of public discourse. This is a claim that’s hard to disagree with. Our media landscape has changed drastically in ways that nearly everyone finds troubling.

The question is whether Sullivan is responsible for the change. Barbas, perhaps unwittingly, provides some evidence that it could be. She recounts how the rise in libel suits in the early twentieth century led newspapers to adopt professional norms of journalism. “The threat of libel led the press down a path of self-reform that transformed journalism and ultimately ended the ‘libel crisis,’ ” she writes (p. 23). “In the attempt to avoid libel suits, journalism professionalized, adopting fairness, truthfulness, objectivity, and accuracy as ideals” (p. 23). This suggests that defamation law can change norms—that it can incentivize responsible media behavior. Drawing on this history, one might think a tightening of Sullivan’s standard could address the dysfunction of our current media environment.

The problem is that much of the misinformation circulating today does not implicate Sullivan. Sullivan prescribes the legal standard for defamation, whereas many of the false claims published on social media are not defamatory. Making it easier for plaintiffs to sue for libel won’t do anything to stop the spread of dangerous information about vaccines, guns, climate change, and similar issues on social media. Moreover, much of the misinformation today is spread by bots, foreign actors, or random individuals on social media who are likely judgment proof.¹⁰² The actors with deep pockets—the social media platforms that allow individuals to spread lies and grotesque conspiracy theories—are protected from liability under federal law.¹⁰³ As Tofel and Kutner explain, “a change in defamation law would do nothing at all to change information flows on Twitter, Facebook or any other platform. That’s because such platforms are immune from suit under Section 230 of the Communications Decency Act.”¹⁰⁴

Conclusion

Make No Law did not put an end to the criticism of Sullivan and its extension in later cases, and it’s unlikely that Actual Malice will either. Barbas’s book doesn’t make an originalist case for the Sullivan framework, nor does it directly address the policy arguments put forward by contemporary critics. But it does serve as a timely reminder of why we have the actual malice rule in the first place. By demonstrating how the actual malice rule provided the breathing space necessary for coverage and criticism of segregation, it shows the central role Sullivan played in advancing the cause of civil rights. And because the civil rights movement is the most powerful example of citizen protest in American history, her book supports the view of Wechsler, Kalven, Lewis, and many others¹⁰⁵ that Sullivan is critical to the cause of democracy.

Embracing this view does not require unquestioning acceptance of all aspects of modern defamation law. It is certainly possible that the courts have gotten some defamation judgments wrong, and there are no doubt ways defamation law could be modified to better serve democracy. But whether a perfect system can ever be devised seems doubtful, as Wechsler himself knew well. Responding to a correspondent who questioned the various rules that grew out of the Sullivan decision, Wechsler wrote, “[t]hese are fascinating questions, and I wish I could go further toward proposing an entirely satisfactory solution. It would not be unusual in life if no solution can be found that does not offer difficulties of some kind.”¹⁰⁶

* Board of Visitors Distinguished Professor of Law, Seton Hall University School of Law. Thanks to Brian Sheppard for thoughtful feedback, Jessica Wisowaty for excellent research assistance, and the editors of the Michigan Law Review for superb editorial work.