January 2017 Bar Bulletin
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January 2017 Bar Bulletin

New York Times v. Sullivan: An Old Lesson in Libel

By Gene Barton


Back in October, Donald Trump threatened to sue The New York Times for libel after it printed an article that reported two women’s statements that Trump had touched them “inappropriately” years before. He and his lawyers should have known better. The lawsuit never materialized and is unlikely to ever be filed.

Threatening the Times with a libel suit is comparable to kicking the proverbial sleeping dog or polar bear. Trump should know that The New York Times keeps some of the nation’s best First Amendment lawyers both on its payroll and on permanent retainer. If he didn’t possess such common knowledge, he found out very quickly when he received the Times’ attorney’s spot-on response, akin to an extended middle finger.

The letter from Daniel McCraw, vice president and assistant general counsel of The New York Times, to Marc E. Kasowitz, the Trump mouthpiece who leveled the threat, stated, in part:

The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a “piece of ass.” … Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself….

We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.1

You see, The New York Times and its attorneys know a thing or two about libel and public figures, particularly those of the political ilk. There’s this little old case from 1964. I first learned about it in journalism school in 1977. Perhaps you’ve heard of it, too, even though Trump needed an upside-the-head education.

It’s called New York Times v. Sullivan,2 and it set an incredibly high bar for a public figure such as Trump (who at the time was probably the most “public” figure in the country) to win a libel suit against a newspaper protected by the First Amendment: “Congress shall make no law abridging … the freedom of … the press ….” It’s the same amendment that conservative Republicans love to cite when they are professing the right to “the free exercise” of religion. But when it works against them and their own self-interest, “the libel laws need to be changed.” Good luck with that.3

L.B. Sullivan was a low-grade politico — the commissioner of public affairs for the city of Montgomery, Alabama — who took offense to an “editorial advertisement” that appeared in the Times on March 29, 1960, and was “written and paid for by a group intensely involved in the struggle for equality and civil liberties” for African-Americans. The advertisement, titled “Heed Their Rising Voices,” chronicled the efforts of African-American students at Alabama State College in Montgomery, which were met with a “wave of terror” unleashed by the city’s police force. It also referenced the Rev. Dr. Martin Luther King’s crusade for racial equality and the harms done to him.4

Although Sullivan was not named in the advertisement, he essentially asserted that he was libeled by association, claiming that “because he was [the] Commissioner who had supervision of the Montgomery police department, people would identify him as the person responsible for police action.”5 As noted in the text, libel law does not require that the offended individual be identified by name. Furthermore, there were admitted inaccuracies in the advertisement regarding certain particulars as to the actions taken against the protesting students.6

Sullivan sued the Times and four African-American clergymen who were among the 64 persons whose names were appended to the ad. A presumably all-white jury found that Sullivan had been libeled and awarded him $500,000, the full amount of his claim,7 even though Sullivan “made no effort to prove that he suffered actual pecuniary loss as a result of the alleged libel.”8 The Alabama Supreme Court affirmed. The U.S. Supreme Court famously reversed.

The Supreme Court, in a unanimous opinion authored by Justice William Brennan, an Eisenhower appointee, “handed down a decision … that added a great new dimension of protection to news media in the field of libel.”

It said that news media are not liable for defamatory words about the public acts of public officials unless the words are published with malice. It defined the word “malice” with rigor and preciseness that had been lacking for centuries and in a way that gave broad protection to publication. Public officials, it said, must live with the risks of a political system in which there is “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open ….” Even the factual error, it said, will not make one liable for libel in words about the public acts of public officials unless malice is present.9

Two paragraphs of the advertisement, which contained the inaccuracies, formed the basis of Sullivan’s libel claim:

In Montgomery, Alabama, after students sang “My Country, ’Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.

… Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times — for “speeding,” “loitering” and similar “offenses.” And now they have charged him with “perjury” — a felony under which they could imprison him for ten years.10

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