A new book unfurls the story of New York Times v. Sullivan, a 1964 Supreme Court decision that made it harder to win defamation suits against the media, and reminds readers that the triumph of press freedom was an outgrowth of the civil-rights struggle.
In the early years of our country, public men who felt maligned could end up killing over it. The duel that resulted in Alexander Hamilton’s death was prompted by a letter, in the Albany, by someone claiming that Hamilton had called Aaron Burr “a dangerous man, and one who ought not to be trusted with the reins of the government,” and had expressed a “still more despicable opinion” .
When the case arose, it was relatively easy to sue the media for defamation. In most states, libel law was weighted heavily against newspapers, even in circumstances where the falsehood was an honest mistake or merely an exaggerated opinion. Henry Ford won a libel claim against the Chicagoafter it called him an “ignorant idealist” and an “anarchist”; Theodore Roosevelt prevailed against a newspaper from Ishpeming, Michigan, that maintained, “He gets drunk . . . not infrequently.
Around this time, Justice Hugo Black, who was from Alabama and had once joined the Ku Klux Klan but was now among the Court’s most liberal Justices, gave a surprising speech about libel and the First Amendment. Employing a formalist, literalist, even absolutist approach to the Constitution, he read the First Amendment as reflecting the Framers’ intent to rid the United States of defamation law; false and reputation-damaging statements were constitutionally protected.
The press tends to take for granted that New York Times v. Sullivan is necessary for democracy. But is it? On the one hand, Sullivan still allows deep-pocketed litigants to target truthtellers who lack assets, tying them up in procedural hurdles that effectively chill speech.
It’s not just conservative Justices who have raised such doubts. When Elena Kagan was a law professor in the nineteen-nineties, she wrote a review of Lewis’s “Make No Law” in which she wondered whether the Sullivan doctrine had been extended too far.
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