Libel and a free press


With its awardwinning reporting staff, The MV Times prides itself on precision. No news publication is, however, above criticism, because some people will always find fault with a story or commentary. Newspapers have long had a mechanism to admit and remedy errors: It’s called “corrections,” which usually appear on page 2.

Because of a 1964 unanimous Supreme Court decision, the New York Times Company v. Sullivan, it is difficult for an aggrieved party to do much about a negative story, even one with inaccuracies.

Back in 1960, an ad appeared in the New York Times that contained inaccuracies concerning the arrest and jailing of civil rights workers, including Dr. Martin Luther King Jr., in Montgomery, Ala. While the ad did not mention his name, L.B. Sullivan sued the Times for libel because he oversaw the police department. He claimed readers would presume he was responsible for what the ad described as police brutality, and a state court awarded him $500,000 in damages.

The justices disagreed, and placed the burden of proof on the plaintiff, who had to demonstrate that the offending passage was written with “actual malice.” That legal standard means the plaintiff must prove that writers knew in advance that they wrote something they knew was false or “with reckless disregard of the truth.”

Former vice presidential candidate and Alaska governor Sarah Palin recently tried to make it easier for public figures to win libel and defamation lawsuits against the media. Former President Donald J. Trump also threatened, but failed, to do the same thing. For years before he became a candidate for the White House, Trump argued that it was too hard for people like him to win in court when they dislike something printed in a newspaper about them or broadcast on radio or television.

On the campaign trail in 2016, while highlighting the New York Times and the Washington Post, Trump stated that “one of the things I’m going to do if I win … I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” Trump never had the chance to do anything about this, because libel and defamation are not federal issues.

They are tried in state courts, and case files show that many people have successfully sued for published false statements. Actor Tom Cruise won a $10 million libel suit in 2003 against a porn actor who claimed in print he had a gay sexual encounter with Cruise.

But Sarah Palin recently had her day in federal court when she sued the New York Times for printing a 2017 editorial that, she argued, defamed her. The editorial linked a 2011 shooting in Arizona to one of her political speeches that included an image of crosshairs placed over various congressional districts. Gabrielle Giffords represented one of those districts. She was among those wounded in that Arizona shooting that left six dead and 13 others injured.

The editorial appeared on the same day as the baseball field shooting of several Republican members of Congress when they were practicing in Virginia. Rep. Steve Scalise of Louisiana was seriously wounded. The Times asked whether American politics had, as its title suggested, become “lethal.” It then went on to highlight Palin’s earlier speech with its crosshair map.

The Times’s correction appeared the next day, when the editorial page editor, James Bennet, realized that he had unreasonably connected Palin’s speech to the 2011 shooting. The Times apologized, and wrote that it had “incorrectly stated that a link existed between political rhetoric and the 2011 shooting.” Palin lost her case, though she may ask for a new trial or appeal. The judge and jury both concluded she did not prove actual malice, that is, that the editorial was printed with “reckless disregard of the truth,” and with the writer knowing in advance the statement was false.

The court created the Sullivan malice standard when print journalism was how most people learned the news. Today, that is no longer the case. Some people want to change or lower the standard, because today, we have different technological media outlets.

In 2019, Justice Clarence Thomas argued that the malice standard needed updating because as an originalist, he believes that judges should interpret the Constitution’s provisions as they were understood when they were first written. Last year, Justice Neil Gorsuch joined Thomas to rethink the malice standard, “given the momentous changes in the Nation’s media landscape since 1964.”

Should courts dilute the malice standard, we may witness numerous lawsuits filed against not only traditional print journalism like The MV Times. Other forms of reporting would be vulnerable: television organizations like Fox News, online services like Politico, and outlets like Infowars.

Without the standard, the outcome may damage these news sources, and here’s why. Before the court established the standard making it harder for the offended to win libel lawsuits, other Alabama courts also ruled against the New York Times. The awards would have amounted to $300 million, almost $2.7 billion in 2022 dollars, but those awards were effectively blocked by the Sullivan decision.

But it might well have been enough to put the paper out of business. Without the Sullivan malice standard, future litigation could irreparably undermine the First Amendment’s bedrock guarantee of a free press.


Jack Fruchtman’s second edition of his “American Constitutional History” appears in March; he lives in Aquinnah.