||New York Times Co. v. Sullivan,
376 U.S. 254 (1964)
||Jan. 6 and 7, 1964
||March 9, 1964
||Freedom of the Press Whether the First Amendment
limits a state's power to award libel damages brought
by a public official against critics of the official's
||9-0; The Court ruled that the First and Fourteenth Amendments
require a public official suing for defamation to prove
that the allegedly defamatory comments were made with
'actual malice that is, with knowledge that it
was false or with reckless disregard of whether it was
false or not.
The New York Times published an editorial advertisement
in 1960 entitled "Heed Their Rising Voices" by the Committee
to Defend Martin Luther King. The full-page ad detailed
abuses suffered by Southern black students at the hands
of the police in Montgomery, Ala.
Even though he was not mentioned by name in the article,
L.B. Sullivan, the city commissioner in charge of the
police department, sued the Times and four individual
black clergyman who were listed as the officers of the
Committee to Defend Martin Luther King.
Sullivan demanded a retraction from paper. After not
receiving a retraction, Sullivan then sued the newspaper
and the four clergymen for defamation in Alabama state
The trial judge submitted the case to the jury, charging
them that the comments were "libelous per se" and not
privileged. The judge instructed the jury that falsity
and malice are presumed. The judge also instructed the
jury that the newspaper and the individual defendants
could be held liable if the jury determined they had
published the statements and that the statements were
"of and concerning" Sullivan.
The jury awarded Sullivan $500,000. After this award
was upheld by the Alabama appellate courts, the defendants
appealed to the United States Supreme Court.
|| "It is a prized American privilege to speak one's mind,
although not always, with perfect good taste, on all public
institutions." Bridges v. California, 314 U.S.
252 (1942). The First Amendment protects "vigorous advocacy"
in addition to "abstract discussion." NAACP v. Button,
371 U.S. 415 (1963).
||The First Amendment requires that a public official
suing for damages for damnatory falsehoods relating to
his official conduct prove that the statements were made
with actual malice. Otherwise, the court reasoned, public
debate on important issues would be lessened. Citizens
have the right to criticize their government officials.
Without providing some protection for error in public
debates, individuals will engage in self-censorship rather
than speak out on important public issues for fear of
a libel suit.
||Justice Black and Justice Goldberg (Justice Douglas
joined each concurring opinion)
Thus we consider this case against the background of
a profound national commitment to the principle 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. (Brennan)
Although the Sedition Act was never tested in this
Court, the attack upon its validity has carried the
day in the court of history. (Brennan)
An unconditional right to say what one pleases about
public affairs is what I consider to be the minimum
guarantee of the First Amendment. (Black)
||Gertz v. Welch, 418
U.S. 323 (1974)
||Nov. 14, 1973
||June 25, 1974
||Freedom of the Press Whether a private person has to
show that a defamation defendant acted with actual malice or
simply fault in order to recover damages.
||The court ruled 5-4 that a private person does not have to
show actual malice in order to recover damages for libel even
if the defamatory comments discuss a public issue.
Robert Welch, Inc. published a monthly magazine entitled
American Opinion, which spread the views of the conservative
John Birch society. The magazine warned of a nationwide conspiracy
of Communist sympathizers to frame police officers. The magazine
contained an article saying that Chicago attorney Elmer Gertz
had helped frame police officer Robert Nuccio.
Nuccio was convicted of second degree murder for killing
a young man. Gertz had represented the young man's family
in a civil suit against Nuccio. However, Gertz did not participate
in the criminal case against the police officer.
The article contained several factual misstatements related
to Gertz. Gertz did not participate in any way to frame Nuccio.
Rather, he was not involved in the criminal case. He also
was not a Communist.
Gertz sued for defamation. A trial court ruled that Gertz
had to show that Robert Welch, Inc. acted with actual malice
because the article discussed important public issues. Gertz
argued that because he was a private person, not a public
figure, he only needed to show negligence or fault.
The media defendant argued that the Times v. Sullivan
standard should apply to any defamation plaintiff as long
as the published statements related to a matter of public
importance. Both a federal trial court and federal appeals
court agreed. Gertz appealed to the U.S. Supreme Court.
|| Public officials must show actual malice in order to recover
damages in a defamation suit. New York Times Co. v. Sullivan,
376 U.S. 254 (1964). Public figures must also show actual malice
in order to recover damages in a defamation suit. Curtis
Publishing Co. v. Butts, 388 U.S. 130 (1967).
The Supreme Court distinguished between public and private
persons for purposes of defamation law. According to the Court,
private persons "are more vulnerable to injury, and the state
interest in protecting them is correspondingly greater." The
court reasoned that public officials and public figures had
greater access to the media and "have a more realistic opportunity
to counteract false statements than private individuals normally
For these reasons, the court set up a different standard
for private persons. The Court determined that "so long as
they do not impose liability without fault, the States may
define for themselves the appropriate standard of liability
for a publisher or broadcaster of defamatory falsehood injurious
to a private individual."
The Court did rule that a private defamation plaintiff could
not recover punitive damages unless she met the Times v.
Sullivan actual malice standard.
||Justices Burger, Douglas, Brennan and White authored separate
Under the First Amendment there is no such thing as a false
idea. … But there is no constitutional value in false statements
of fact. (Powell)
Public officials and figures usually enjoy significantly
greater access to the channels of effective communication
and hence have a more realistic opportunity to couteract false
statements than private individuals normally enjoy. (Powell)
With such continued erosion of First Amendment protection,
I fear that it may well be the reasonable man who refrains
from speaking. (Douglas)
Finally, even a limitation of recovery to 'actual injury'
however much it reduces the size or frequency of recoveries
will not provide the necessary elbowroom for First
Amendment expression. (Brennan)
||Curtis Publishing Co. v. Butts, 388
U.S. 130 (1967)
(consolidated with Associated Press v. Walker)
||Feb. 23, 1967
||June 12, 1967
||Freedom of the Press Whether the Times v. Sullivan
"actual malice" standard applies not only to public officials
but also to public figures.
The Supreme Court voted 5-4 to extend the standard of Times
v. Sullivan to so-called public figures. Four justices
would have applied a more rigid standard on publishers. They
would have allowed a public figure defamation plaintiff to
recover if he could show that a media defendant engaged in
"highly unreasonable conduct constituting an extreme departure
from the standards of investigation and reporting ordinarily
adhered to by responsible publishers."
Applying this standard, the Court ruled 5-4 to uphold the
libel award of plaintiff Wally Butts. However, the Court ruled
9-0 that there was insufficient evidence to hold the Associated
Press liable in the Walker case.
Butts case The Saturday Evening Post, a newspaper
published by Curtis Publishing Co., ran an article entitled
"The Story of a College Football Fix." The article accused
Wally Butts, the then-athletic director for the University
of Georgia, of conspiring to fix a 1962 football game between
the University of Georgia and its rival the University of
The article alleged that Butts gave Georgia's plays to Alabama
coach Paul "Bear" Bryant. Butts sued for defamation. The case
went to a jury which awarded Butts more than $3 million in
damages. The trial court reduced the award to $460,000. After
the trial, the Post tried to assert the constitutional defense
from the Times v. Sullivan case.
The appeals court affirmed the trial court ruling. Curtis
Publishing argued that it was entitled to a new trial because
the lower courts should have applied the "actual malice" standard
from the Times v. Sullivan decision.
Walker case The Associated Press reported that
Edwin Walker encouraged people to riot when James Meredith
became the first African American to enroll at the University
of Mississippi. Walker was a retired army general who had
been in charge of the federal troops during the desegregation
of schools in Little Rock, Arkansas.
Walker sued the Associated Press in a Texas state
court, claiming that he had never encouraged any students
to protest against federal marshals. A jury awarded Walker
$800,000 in damages. The trial judge eliminated the punitive
damage award, finding that there was no evidence of actual
malice. A Texas appeals court agreed, finding that the Times
v. Sullivan standard of actual malice was inapplicable
to defamation plaintiffs who were not public officials.
The question before the Supreme Court was whether to extend
the rule in Times v. Sullivan for public officials
to public figures.
|| Newspaper publishers have no special immunity from the application
of general laws. Associated Press v. National Labor Relations
Board, 301 U.S. 103 (1937). The First Amendment requires
a public official defamation plaintiff to show evidence of actual
malice or reckless disregard for the truth before recovering
damages. New York Times Co. v. Sullivan, 376 U.S. 254
All nine members of the Court agreed that the First Amendment
imposed some limitations on the application of state libel
laws to public figures in addition to public figures. Four
justices determined that the proper standard was whether the
media defendant had engaged in "highly unreasonable conduct"
and deviated from the standards of a "responsible publisher."
However, five members of the Court went farther and extended
the rationale of Times v. Sullivan to public figures.
In his concurring opinion, Chief Justice Earl Warren reasoned
that there was "no basis in law, logic, or First Amendment
policy" to differentiate between public officials and public
Justice Black (joined by Douglas) and Justice Brennan
(joined by White)
The law of libel has, of course, changed substantially since
the early days of the Republic, and this change is 'the direct
consequence of the friction between it … and the highly cherished
right of free speech.' (Harlan)
To me differentiation between 'public figures' and 'public
officials' and adoption of separate standards of proof for
each have no basis in law, logic, or First Amendment policy.
It strikes me that the Court is getting itself in the same
quagmire in the field of libel in which it is now helplessly
struggling in the field of obscenity. (Black)
||Milkovich v. Lorain Journal Co.,
497 U.S. 1 (1990)
||April 24, 1990
||June 21, 1990
||Freedom of the Press Whether the First Amendment requires
a separate "opinion" privilege that restricts the application
of state libel laws.
||No, the Court ruled 7-2 that the First Amendment provides
adequate protection without applying an "additional separate
constitutional privilege for opinion."
A reporter for the Lorain Journal in Ohio published
an article accusing Michael Milkovich, a high school wrestling
coach, and H. Don Scott, the school superintendent, of lying
under oath in a judicial proceeding. The column alleged that
Milkovich's high school escaped discipline from the state
high school athletic association officials in part because
Milkovich and Scott lied under oath.
Milkovich and Scott sued the paper for defamation in Ohio
state court in separate suits. The trial court granted a directed
verdict to the paper in Milkovich's case, finding that the
evidence failed to show actual malice. A state appeals court
reversed, finding that there was sufficient evidence to go
to the jury. The newspaper lost further appeals.
The case then went back to the trial court, which again dismissed
the suit. This time the trial court determined that the article
was constitutionally protected opinion. An Ohio appeals court
affirmed. The paper appealed to the Ohio Supreme Court, which
reversed. The state high court determined that the challenged
statements were statements of fact that could lead to a defamation
However, the Ohio Supreme Court later reversed itself on
the reporter's article in the separate defamation suit brought
by Superintendent Scott. Based on this ruling, the Ohio appeals
court determined that the column was constitutionally protected.
Milkovich appealed to the U.S. Supreme Court, arguing that
the challenged statements were not constitutionally protected.
The paper argued they were protected as opinion.
|| Statements of matters of public concern must be proved false
before they can subject a publisher to libel damages. Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). "Under the
First Amendment there is no such thing as a false idea. … But
there is no constitutional value in false statements of fact."
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974).
Society has a strong interest in preventing attacks on a person's
reputation. Rosenblatt v. Baer, 383 U.S. 75 (1966).
The U.S. Supreme Court reasoned that the Court's dicta in
Gertz ("Under the First Amendment there is no such thing as
a false idea") "was not intended to create a wholesale defamation
exemption for anything that might be labeled 'opinion.'" The
Court pointed out that the statement "In my opinion John Jones
is a liar" can cause as much reputational damage as the statement
"Jones is a liar."
To the majority, the First Amendment already provides adequate
protection without creating a new opinion privilege. The court
determined that a defamation plaintiff must show that the
challenged statement both (1) implies an assertion of fact
and (2) is "sufficiently factual to be susceptible of being
proved true or false."
Applying this standard, the high court majority determined
that there was a question of fact as to whether the statements
||Justice Brennan (joined by Marshall)
But we think that the breathing space which freedoms of expression
require in order to survive, is adequately secured by existing
constitutional doctrine without the creation of an artificial
dichotomy between opinion and fact. (Rehnquist)
Ignorance, without more, has never served to defeat freedom
of speech. (Brennan)