Freedom of Press: Libel, Slander, and Defamation

Facts of the Case

During the Civil Rights movement of the mid-20th century, the New York Times published a full-page ad for contributing donations to defend Martin Luther King, Jr. on perjury charges. The ad contained several minor factual inaccuracies, such as the number of times that King had been arrested and actions taken by the Montgomery, Alabama police. The city Public Safety commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law.

When the Times refused and claimed that they were puzzled by the request, Sullivan filed his libel action against the Times and a group of African-American ministers mentioned in the ad. A jury in state court awarded him $500,000 in damages. Curiously, the Times did eventually retract the ad's statements when Alabama Governor John Patterson demanded it. The newspaper felt that, while Patterson also was not named in the ad, its comments reflected more directly on him because he represented the state of Alabama generally.

Question

Did Alabama's libel law unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?

Opinions

Majority (9): Brennan held that the First Amendment did not permit a finding of liability by Alabama courts in this context, especially considering the modest evidence that had been presented. When a statement concerns a public figure, according to Brennan, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity. Brennan used the term "actual malice" to summarize this standard, although he did not intend the usual meaning of a malicious purpose. "Malice" had a long-standing meaning within libel law that limited it to knowledge or gross recklessness rather than intent, since courts found it difficult to imagine that someone would knowingly disseminate false information without a bad intent. However, it previously had been used only to determine whether enhanced penalties, such as punitive damages, should be awarded.

While he agreed with the majority's reasoning, Black felt that the actual malice standard did not go far enough in providing First Amendment protections. He argued that it was not clear enough to be consistently applied.

Minority (0):  None (unanimous decision)

Case Commentary 

This case clarified the scope of First Amendment protection for speech on matters of public concern, resolving a disagreement among lower courts as to whether it extended beyond opinion and comment to good-faith statements that proved to be factually and objectively false. In deciding that it did, the Supreme Court gave substantial protections to defendants such as newspapers and other media outlets by raising the burden of proof required for plaintiffs in libel claims.

Another, less familiar development associated with this case is the burden shifting from the defendant proving that the statement was true, as was traditionally done in defamation cases, to the plaintiff proving that the statement was false. Great Britain continues to adhere to the traditional rule, while Australia has followed the U.S. in making the shift.

Facts of the Case

In New York Times Co. v. Sullivan (1964) the Court held that public officials in libel cases must show that a statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." These two cases concern libel as it pertains to public figures who are not public officials. Curtis Publishing Co. v. Butts concerns an article published in the March 23, 1963 edition of The Saturday Evening Post alleging that former University of Georgia football coach Wallace Butts conspired with University of Alabama coach Paul "Bear" Bryant to fix a 1962 football game in Alabama's favor. The article's source was George Burnett, an Atlanta insurance salesman who had allegedly overheard a telephone conversation between the coaches. Butts brought and won a libel suit against Curtis Publishing, owner of the periodical. Soon after the Court's ruling in New York Times, Curtis moved for a new trial. The trial judge rejected the argument because Butts was not a public official. On appeal, the Fifth Circuit Court of Appeals affirmed the trial judge's decision on the basis that Curtis had waived any constitutional challenges by not raising such questions at trial. Associated Press v. Walker concerns dispatch reports of rioting that occurred on the campus of the University of Mississippi on September 30, 1962. The dispatches, authored by a correspondent on the scene, reported that Edwin A. Walker, a private citizen and political activist, had personally led a violent crowd attempting to prevent federal marshals from enforcing the court-ordered enrollment of an African-American. Walker denied the report, and filed a libel suit in the state courts of Texas. A jury found in Walker's favor, but the judge in the case refused to award punitive damages, finding that there was no malicious intent. The judge also specifically noted that New York Times was inapplicable. On appeal, the Texas Court of Civil Appeals agreed. The Supreme Court of Texas declined to hear the case.

Question

In light of the Court's ruling in New York Times Co. v. Sullivan, were the allegations made against Butts and Walker libelous?

Opinions

Majority (9): In the wake of the 1964 decision in New York Times Co. v. Sullivan, the Court was compelled to consider the difference (if any) between public officials and public figures who are bringing defamation claims. Harlan found that the standard of proof should be comparable in these types of lawsuits, allowing plaintiffs to recover damages for information that was not properly fact-checked and recklessly published even if the media outlet did not know that it was false. This echoed the actual malice requirement in New York Times Co. v. Sullivan, which included knowledge and recklessness as the mental states that could give rise to liability notwithstanding First Amendment protections.

Minority (0): None (unanimous decision)

Case Commentary

The court found that public figures are essentially the same as public officials in terms of their access to the media, public influence, and other opportunities to vindicate their reputations. If there is a false statement that is made by mistake, then, they should not need to resort to the courts to correct it.

If this damages award seems excessive, it is worth noting that the football coaches each initially sought $10 million, a spectacular sum by the standards of the time. All the same, even the amount that was awarded by the jury dealt a devastating blow to the Curtis Publishing Company, which ran the Saturday Evening Post. Both of them went out of business within two years.

Facts of the Case

Secretary of Defense Robert McNamara commissioned a classified history of the U.S. role in Indochina in 1967, two years into the Vietnam War. The New York Times gained access to this history three years later and started to publish portions of its contents in articles in 1971, six years into the war. Soon after the first article appeared, a federal district court judge ordered the newspaper to stop publishing the classified information. This order was based on the federal government's pursuit of an injunction based on irreparable harm to national security. The war had become highly unpopular by this stage, due to a high casualty rate, so part of its reasoning may have been based on the damage to public morale.

Granting an injunction against the Times would constitute a prior restraint, generally disfavored by courts under the First Amendment. However, the government used statements by the Secretary of State and an affidavit from the Navy general counsel to support its argument that serious harm would befall the nation's interests if publication did not halt. The Times complied with the restraining order while the judge considered the contents of the documents, popularly known as the Pentagon Papers. The judge eventually denied the government's request for an injunction, but it was granted by an appellate court. 

On the other hand, the government had not been able to secure an injunction against the Washington Post, a similar type of newspaper, for publishing similar content. The division between these outcomes resulted in an appeal to the Supreme Court.

Question

Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment?

Opinions

Majority (9): Taking an originalist view of the First Amendment, Black relied on the historical views of the Framers to find that prior restraints and other forms of government censorship would be per se unconstitutional. This was especially relevant in this case because the speech in question criticized the government, which Black viewed as one of the most important types of speech under the First Amendment. His opinion also echoed the growing popular distrust of the federal government amid a widely deplored conflict that had resulted in the loss of American lives for no apparent gain. Black was not persuaded that broadly citing national security interests gave the government a blank check to prohibit speech.

Like Black, Douglas held an expansive view of the First Amendment that would have prohibited virtually any government restraint on speech, no matter how significant the interest cited.

Brennan pointed out that the government's action would be valid only if the speech fell within one of the categorical exceptions to First Amendment protection. The Pentagon Papers did not, since they did not contain military secrets, obscenities, or fighting words that would be likely to directly induce unrest. (One could disagree on the first point, but the information was several years old and thus did not relate to the details of any ongoing military operations such that publication would jeopardize their success.)

While acknowledging the importance of national security, Stewart felt that it was especially critical to maintain First Amendment protections in an area such as foreign relations, where the executive branch has immense authority compared to the other branches of government. He argued that the relative lack of transparency meant that the spread of information was critical to keeping the public informed and the democratic process intact.

White essentially echoed Stewart's opinion. Their views were somewhat counter-intuitive, considering that protecting national security is usually considered an especially compelling government interest that provides a stronger rationale for regulating speech. Stewart and White seemed to argue, on the contrary, that the circulation of information should be especially unfettered in this context.

Questioning whether issuing a prior restraint would amount to legislating by the courts, Marshall raised separation of powers concerns. He also felt that the government was overly vague when describing how the prior restraint was necessary for national security.

Dissent: Harlan felt that the Court should have showed more deference toward the executive branch and national security interests during wartime. He agreed with Burger that the decision had been reached too hastily.

This dissent mostly agreed with Harlan, citing similar concerns about the level of respect accorded to the President's handling of foreign affairs.

Minority (0):  None (Per Curiam decision)

Case Commentary

Prior restraints are rarely justified, even in matters of extreme government importance or national security, since they are among the most disfavored forms of restricting the freedom of speech. As noted above, the opinion has limited precedential value because of its distinctive circumstances and the absence of a majority opinion with detailed reasoning. It is mostly important as an indication of the significance accorded to the First Amendment by the Justices and an example of the wide-ranging philosophical perspectives on it.

Facts of the Case

A parody ad in Hustler Magazine, which was known for mature and explicit content, featured a fake interview with fundamentalist Protestant minister Jerry Falwell. The magazine based the parody on a Campari advertising campaign that consisted of alleged interviews with celebrities in which they talked about their first time drinking Campari, while using wordplays and double entendres to suggest that they were talking about the first time that they had sex. In Hustler's parody ad, the fake Falwell talked about having sex with his mother in an outhouse. The magazine was careful to include a disclaimer at the bottom of the page to remind readers that it was a parody, and it also listed the ad as "fiction" in its table of contents.

Not at all amused, Falwell brought a claim on three causes of action: invasion of privacy, libel, and the intentional infliction of emotional distress. The first cause of action dropped out through summary judgment, while the second cause of action was rejected by a jury because the ad was clearly marked as a parody. However, the jury found for Falwell on the claim for intentional infliction of emotional distress, for which he received $150,000 in damages.

Question

Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress?

Opinions

Majority (9): The majority acknowledged that permitting broad First Amendment protections may lead to speech that is offensive or hurtful in its criticism of public figures. However, those protections remain in effect unless the speech is both false and made with actual malice. In other words, it must satisfy both the standard applied under state law and the standard in New York Times Co. v. Sullivan if the target is a public figure. This reasoning does not apply to speech that targets private citizens.

Rehnquist was not persuaded that the First Amendment should be cast aside when a parody was particularly outrageous, since this will be hard to apply consistently across many juries and jurisdictions. Something that is obscene does not receive First Amendment protection, but material that falls short of meeting the Court's definition of obscenity cannot be further separated into what is outrageous and what is acceptable.

Minority (0):  None (unanimous decision)

Case Commentary

This decision suggests that the malice standard for defamation claims does not apply effectively to parody, while elaborating what that standard means in other contexts.

The two protagonists of this case, Falwell and Hustler publisher Larry Flynt, later became friends and toured colleges to debate the First Amendment and morality.