Freedom of Speech – Frederick News Post (subscription)

In March 1964, the United States Supreme Court handed down its decision in New York Times v. Sullivan, one of the most important 20th-century rulings involving freedom of the press. The decision affirmed the right of the media and the public to criticize public officials even if some of the information they published is false.

Today, when the news media are under attack for publishing fake news and the president of the United States refers to The New York Times, CNN and other news outlets as the enemy of the people, it is useful to consider the circumstances surrounding that Supreme Court case.

The decision was made at a time when African-Americans in the South were demonstrating for voting rights and for equal access to schools and public accommodations. Southern public officials had begun to use defamation suits against the press as a way to limit criticism and coverage of their actions against the demonstrators. The New York Times had already lost two such suits, had been fined $500,000 in each case, and was facing 11 more suits that could result in an additional $5.6 million in fines.

The U.S. Supreme Court agreed to hear the newspapers appeal of the first lawsuit. The case grew out of an advertisement titled Heed Their Rising Voices that appeared in the Times on March 30, 1960. The ad cataloged a number of attempts by activists, including Martin Luther King Jr., to protest inequality in the South and ended with an appeal for financial support.

At the time, the media had only a few ways to defend against a defamation lawsuit, and while truth was a defense, any error, no matter how small, would preclude its use.

Unfortunately for the Times, the ad included several errors. Some were small (the ad said students who were demonstrating at the state Capitol sang My Country Tis of Thee when in fact they sang the national anthem), while others were more substantial. The ad cited several actions that had supposedly been taken by public officials, including padlocking the dining hall at Alabama State College, ringing the campus with police officers armed with shotguns and tear gas, and arresting King several times for minor offenses. Now, the ad alleged, King was facing a perjury charge that could lead to his imprisonment for up to 10 years. In each instance, the information in the ad was almost but not quite accurate.

L.B. Sullivan, one of three city commissioners in Montgomery, Alabama, sued, arguing that because he was the commissioner responsible for the police, the ad accused him of taking possibly illegal actions against both the students and King. Under Alabama law, criticism of the public conduct of a public official was automatically considered libelous if the plaintiff convinced the jury that the remarks were of and concerning him and that the words could injure him in his public office or impute misconduct to him in his office, or want of official integrity

Because some of the statements in the ad were false, The New York Times essentially had no defenses available. As a result, Sullivan won easily at the trial court level, and the Alabama Supreme Court rejected the papers appeal of the decision and the $500,000 fine.

The New York Times then appealed to the nations highest court. In March 1964, the U.S. Supreme Court unanimously ruled in the newspapers favor. The majority opinion written by Justice William Brennan, and concurring opinions written by Justices Hugo Black and Arthur Goldberg, offered a full-throated defense of the right of the media and the public to criticize government officials and government actions even if the criticism included errors and false statements. Together, the opinions made it clear that the days of the Sedition Act of 1798 were long over and that elected officials could no longer stifle criticism of their public actions by means of a defamation lawsuit.

Quoting Thomas Jefferson, James Madison and previous court decisions in their opinions, the justices asserted that the media and the public have the right, and perhaps even the duty, under the First Amendment, to criticize, protest and report on public affairs. At the same time, they recognized that those critical remarks may include some errors.

Citing NAACP v. Button in the majority opinion, Justice Brennan wrote that erroneous statement is inevitable in free debate, and ... must be protected if the freedoms of expression are to have the breathing space that they need to survive. Anything else, he wrote, might lead the media to self-censorship for fear that they would not be able to prove the truth of the statements they published.

To counter that concern, Justice Brennan turned defamation law on its head, setting up the actual malice standard. Under this new standard, Brennan shifted the burden of proof to the public official who sued the media. Officials now had to prove with convincing clarity that the media published the statement with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

For a statement to reach the level of actual malice, the public official must prove that the media knowingly published a lie or went out of its way to avoid learning the truth. And, the official must prove that the false statement caused real harm to his or her reputation.

During his campaign, then-candidate Donald Trump regularly railed against the media, and threatened to open up libel laws to make it easier for public officials to sue. Since his inauguration, the relationship between him, his administration and some media outlets has been rocky at best. The president has been critical of what he calls fake news, which in many cases seems to be news that he simply doesnt like. His chief political strategist has referred to the media as the opposition party, and his press secretary barred selected media outlets from a press briefing.

In his majority opinion in the New York Times cases, Justice Brennan wrote that debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Justice Black, in a concurring opinion, wrote that, at the least, the First Amendment leaves the people and the press free to criticize officials and discuss public affairs with impunity. ... I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions or its officials.

The First Amendment protects all of us. It gives all of us Protestants, Catholics, Jews, Muslims and Pastaferians the right to freely worship or not. It gives all of us immigrants, Native Americans, naturalized citizens and descendants of the Mayflower settlers the right to speak out and either support or criticize the policies of the government. It gives all of us women, men, members of the LGBTQ community, anti-abortion and Black Lives Matter supporters the right to assemble freely, to protest and to petition the government for a redress of grievances.

And it gives all members of the media from The New York Times and The Washington Post to The Frederick News-Post, WHAG-TV and even local bloggersthe right to cover and, if they choose, to criticize the president, members of his administration, members of Congress and other elected officials throughout government. It doesnt matter if the officials dont like what is being reported. Nor does it matter if the criticism is, as Justice Goldberg wrote, unwise or unfair.

We have the right to be informed about the workings of our government and the right to respond to that information with praise or with criticism. If the media are muzzled, our right to make an informed and educated decision about who we select to lead us and whether to support their policies is severely diminished.

At a time when people are gravitating toward only those news sources they agree with, attempts by the president and his administration to undercut the credibility of the media could have serious consequences. The First Amendment is one of the shining lights of our American democracy. We have to fight the notion that information we disagree with is automatically fake news. No matter what our political leanings, we dont want to live in a country where information is controlled by the government, where protesters are threatened and where protections for free speech and a free press are reduced to empty platitudes.

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Freedom of Speech - Frederick News Post (subscription)