In last Sunday’s edition of the New York Times, the editorial board published an op-ed celebrating the fiftieth anniversary of its landmark victory in New York Times v. Sullivan, in which the U.S. Supreme Court held in 1964 for the first time that the Constitution’s protection of the rights to freedom of speech and of the press applies to civil suits for defamation. The doctrine announced in Sullivan, as well as the long line of subsequent decisions expanding its reach, still looms large to this day in the law of defamation in America, and its effect has not been without cost to the public.
The law regarding civil suits for slander or libel, collectively called defamation, has its roots in English common law and even in ancient Roman law, and had been the same in the United States for the first 188 years of American history prior to Sullivan. In order to recover damages for defamation at common law, a plaintiff had to show that the defendant published to a third person or persons a statement concerning the plaintiff that would tend to injure the plaintiff’s reputation. Truth was a defense, but it was the defendant’s burden to prove that the statement was true, not the plaintiff’s burden to prove that the statement was false. If it was proved that the defendant published a defamatory statement, the defendant was strictly liable regardless of whether he intended or had reason to believe that the statement was defamatory or false-mistake or lack of intent was not a defense.
The Supreme Court in Sullivan began a radical change in this law by holding that it was unconstitutional for a court to award damages to a plaintiff who is a public official suing a member of the press for defamation unless the plaintiff meets two new requirements previously unknown to the law of defamation: First, the burden now had the burden to prove that the statement was false. Second, the plaintiff had to prove that the defendant acted with “actual malice,” a term of art meaning knowledge of the statement’s falsity or reckless disregard of the truth.
While Sullivan itself concerned only suits by public officials against the media, subsequent cases such as Time v. Hill and Gertz v. Welch, expanded the doctrine to apply with varying standards to suits by public figures other than government officials and even to suits by private individuals when the defamatory statement concerns matters of public interest. While defamation law was never simple, Sullivan and its progeny have given rise to an almost bewildering array of standards of proof in defamation cases, which treat differently various combinations of plaintiffs (public officials, public figures, private individuals, “involuntary public figures,” or “limited-purpose public figures”), defendants (“media defendants” and “non-media defendants”), and subject matter (matters of public concern vs. matters of private concern). These distinctions are even more complicated today-after all, who is not a “media defendant” in the age of Facebook and blogs, and in a world with dozens of 24-hour news channels, what anymore is not a “matter of public concern?”
Of course, the Supreme Court’s rewriting of the law of defamation in Sullivan begs the question: If a private civil suit for defamation could violate the First Amendment, then why is this reflected nowhere in the text of the Constitution, and why no court adopted this doctrine in 172 years of defamation lawsuits that had been filed since the Bill of Rights was ratified? The answer likely lies in the traditional view that the First Amendment did not absolve citizens of responsibility for harm to other citizens caused by their speech, which was best stated by Justice Joseph Story in 1833: “That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. … It is plain, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation.”
Right or wrong, Sullivan has been the law of the land now for fifty years, and no defamation case since has failed to feel its effect. Given the complexity of the law of defamation and its First Amendment implications today, it is essential that any person is considering bringing a claim for libel or slander consult a qualified and experienced attorney.
If you or someone you know has had your reputation injured by defamation, contact the attorneys of Abraham, Watkins, Nichols, Agosto, Aziz & Stogner, contact an attorney at Abraham, Watkins, Nichols, Agosto, Aziz & Stogner by calling (713) 222-7211 or 713-222-7211.