While the ad named no names, it came to the attention of the Montgomery police commissioner, L.B. Sullivan, via a local libel lawyer, who convinced Sullivan and the city fathers they should bring a defamation action against the Times, especially since the ad had implied police complicity in the bombing of King’s Montgomery home in 1956.
Hitherto, libel law had been fairly straightforward. Opinion was protected by the First Amendment but factual accuracy was required; the burden of proof regarding a contentious statement lay with the defendant and to that end, the Times and other responsible journalistic organizations employed fact-checkers, not only in the news columns but the in ads as well.
It was an open and shut case, especially under the strict Alabama libel laws: after a three-day trial the jury found in favor of the plaintiff, Sullivan, and awarded him half a million dollars. The Times appealed.
Writing for the Warren Court, liberal Justice William Brennan, brushed aside the ad’s factual inaccuracies and even prior Supreme Court precedent, choosing to view the case instead as an opportunity “to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct,” wrote Brennan. Debate, he said, should be “uninhibited, robust, and wide-open.”
To that end, the court constructed a new libel law for “public figures”: the statement in question had to be false; the maker of the statement had to have known, or should have known, it was false and communicated it to a third party; and the statement had to be made with either “actual malice” or “reckless disregard” for the truth.
Re-evaluationThe decision, while liberating for the press, has been problematic for our democracy ever since. As the media has become more and more partisan—institutions such as the Times and the Washington Post are today indistinguishable in their policy positions from the Democrat Party—and take a frankly activist attitude both in their news and opinion columns on all current “social-justice” issues.
Since both malice and reckless disregard go to state of mind, they’re hard to prove in court—but does anybody really doubt that today’s media is fully capable of “actual malice”?
In fact, no less a figure than Justice Clarence Thomas has called for Sullivan to be re-evaluated on constitutional grounds. Writing in early 2019, in a case involving one of Bill Cosby’s accusers in which “malice” lay at the heart of the case, Thomas noted that the “actual malice” standard/get-out-of-jeopardy-free card was “almost impossible” to legally satisfy.
“If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we,” he said, calling the “malice” test “a judge-made rule of law.”
But Silberman went further, with the media in his crosshairs: “The increased power of the press is so dangerous today because we are very close to one-party control of these institutions…. It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news.
Veritas VictoryIn short, the dam may be breaking. James O’Keefe’s gadfly Project Veritas won a small but significant victory against the Times the other day when a New York State Supreme Court judge ruled against a Times motion to dismiss a defamation suit against a report that called a Veritas video of possible election chicanery in Rep. Ilhan Omar’s congressional district in Minnesota “deceptive… with no verifiable evidence… probably part of a coordinated disinformation effort” and attempted to link the video to the Trump campaign, of course.
“Stating that the video is ‘deceptive’ and stating ‘without verifiable evidence’ in a factual way in a news article certainly presents the statement as fact, not opinion,” wrote Justice Charles Wood. He said the Times may have been motivated by “actual malice” and had acted with “reckless disregard.”
Good for him. Freedom of the press is a wonderful thing—especially now, when the “progressive” left has all but called for its abolition of the first amendment in its quest for a one-party socialist state.
For more than half a century, the mainstream media has abused its powers under the protective shield of the Sullivan decision. At this point, however, with the national media now weaponized against traditional American law and values, the ruling is no longer a shield, but a sword.