In the years after World War II, when the Civil Rights movement emerged, the longstanding common law tolerance for fair comment and criticism was severely tested in two ways.
First, before NY Times v Sullivan, libel suits were often filed to suppress criticism of the white establishment in the American South. In one typical example, South Carolina editor John Henry McCray was charged with criminal libel and forced to serve two months on a chain gang in 1954 for simply reporting the last words of a death-row inmate.
Secondly, bigots and reactionaries attacked the news media for merely reporting about the Civil Rights movement, and libel suits were part of the attack. Eleven lawsuits had been filed against the New York Times, and another five against CBS, in the late 1950s and early 1960s.
One of these lawsuits, brought by an Alabama police commissioner named Louis B. Sullivan, involved an advertisement defending Martin Luther King Jr and the civil rights movement.
The Sullivan case is perhaps the most important media law case First Amendment jurisprudence because it struck down the many different state approaches to the First Amendment under common law and created a national standard that was unequivocal in its strong support for free speech and free press.
Sullivan became the bedrock foundation for most modern social and political discussion in the US. It is the crucial case in understanding how libel law is interpreted today in the US, and the standard to which the rest of the world aspires and from which dictators and tyrants recoil.
The case began with a March, 1960 advertisement (picture) placed by Alabama civil rights activists in the New York Times. It was headlined “Heed their Rising Voices.” (Text). The advertisement described resistance to the civil rights movement in the South, and had some minor inaccuracies. The police commissioner of Birmingham, Ala., Louis Sullivan, was not named in the ad, but he sued anyway under the state’s libel law.
Sullivan won the case in an Alabama state trial court. The New York Times appealed (which is why the case is labeled NY Times v Sullivan, not the other way around, as it was originally). Sullivan also won the first and second appeals brought by the New York Times in the Alabama courts.
The New York Times then petitioned for certiorari to the U.S. Supreme Court. It was granted, and the court heard (and you can also hear recording of) oral arguments in January, 1964.
In its decision supporting the Times, the U.S. Supreme Court held that:
“Debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on public officials.”
For a public official to successfully sue for libel, he or she would have to prove “actual malice.”
What is actual malice?
- Knowingly publishing something that is false; or
- Reckless disregard for the truth
The Sullivan decision was ground-breaking in many ways. First, it took the libel issue out of state courts and put it squarely under a strong federal rule. Secondly, as an advertising case, it affirmed First Amendment rights for some forms of advertising. Third, it meant that unnamed public officials who might be indirectly criticized would now have a much harder time even bringing a suit in the first place, much less winning it. And of course, it meant that any criticism of a public institution or official — or, later, public figure — was strongly protected at both the state and federal levels by the federal courts as an incorporation of the First Amendment through the Fourteenth Amendment.
Even though the Sullivan decision was very strong, there were still questions that had to be clarified in its wake.
Clarifying the Sullivan “actual malice” standard
Many questions remained after the Sullivan case, such as: How do you define “reckless disregard” for the truth? Who is a public figure?
** Curtis Publishing Co. v Butts, 1967 — What’s reckless disregard? (1) 
With the main editor of the Saturday Evening Post off on vacation, a substitute editor printed a story that said famed football coach “Bear” Bryant conspired with another coach, Wally Butts, to “fix” a game. The report was based on an overheard telephone call, without corroboration. The magazine (owned by Curtis Publishing Co.) had plenty of time to check facts. The Supreme Court said that the circumstances of a report, including the time element, are important in determining reckless disregard. See “The Story of a Football Fix” in the Saturday Evening Post, March 23, 1963 and a follow-up story from 2008 in the Birmingham News.
Maj. Gen. Edwin A. Walker
** Associated Press v. Walker, 1967 — What’s reckless disregard? (2) The opposite of the Curtis case, the AP case set a “hot news” standard for reckless disregard. The court basically said that an honest mistake made in a “hot news” situation involving a public figure is not reckless disregard. The public figure in this case was Edwin Walker, an extremely controversial figure in the 1960s who opposed civil rights and denounced President John Kennedy as a communist while serving as a general in command of US troops in Europe. Walker was present at the University of Mississippi protesting the admission of black students, but the Associated Press reported that Walker had “led a charge of students against federal marshals” and that he had “assumed command of the crowd.” These statements were held to be false and defamatory in appeals court, but the US Supreme Court applied the Sullivan Test in this case to a public figure (as opposed to a public official). This meant that Walker would have had to prove “actual malice” not merely negligence.
** Gertz v. Welch, 1974 — Who is a public figure? An attorney suing Chicago police after a young black man was killed was described by American Opinion (the ultra-right-wing wacko John Birch Society magazine) as a “communist fronter” and a “Lenninist.” Gertz claimed he was not a public figurebecause he had not sought public figure status. Thus, Gertz only had to prove negligence, and not malice as would be required in the case of a public official or public figure. Also, the case set a requirement of fault on the part of the media, rather than “strict liability.” In other words, the media has to be guilty of something beyond a mere falsehood. There has to be some level of fault.
** Ollman v. Evans, 1979 (and Milkovich v. Loraine Journal, 1990) —What is a fact? How do we distinguish fact from opinion? The Ollman test (affirmed in Milkovich) lists these factors in distinguishing fact from opinion:
- Verifiability
- Common meaning
- Journalistic context
- Social context
Bertel Ollman was a professor offered a job at the University of Maryland. He was called a Marxist by columnists Rowland Evans and Robert Novak, and the job offer was withdrawn. “If an author bases his opinion on disclosed facts, the opinion itself does not give rise to a cause of action. Should the underlying facts prove false, they (rather than the opinion) would be actionable. If the author supplies no such facts, but utters a defamatory opinion, a claim arises. It is the libelous underlying “facts,” rather than the opinion, that makes the defamatory statement actionable.
The Milkovich v. Loraine Journal (1990) case had to do with accusations that a basketball coach encouraged violence. In both cases, the courts said, the opinions assumed underlying facts and therefore could be seen as going beyond fair comment and criticism.
Libel & privacy law: Public vs private people
| Public Person | Private Person | |
| Defamatory falsehood | Plaintiff must prove actual malice (as in NYT v. Sullivan) | Plaintiff must only prove negligence under state laws guided by federal court decisions. |
| Defamatory truth | Plaintiff must prove falsity to win a suit for libel. Truth is the best defense. | Invasion of privacy suit possible. Defendant must prove public interest or news value. |
Libel & the doctrine of PRIVILEGE
What is a privileged document? In 2017, when Russian entrepreneur Aleksej Gubarev sued Buzzfeed website for publishing the infamous Trump dossier, the question for the courts was whether the doctrine of privilege would apply under conflicting state laws. The dossier was not a “public” document, so it would not necessarily qualify under common law as a privileged communication. However, under New York Civil Rights Law section 74:
A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.
As a result, the court held that the investigations and briefings qualified as “official action…” even though the documents had not officially been made public. See “In Dossier Lawsuit, Buzzfeed’s Fair Report Defense Survives,” Columbia Journalism Review, June 6, 2018. As a result, whether or not allegations about Russian dictator Vladimir Putin’s compromising information about Gubarev and Donald Trump were true or false, the dossier fell under an official government document status and was therefore protected from libel suits.
PRIVILEGE: Hutchinson v Proxmire, 1979 –– The doctrine of privilege is confined to floor debate, not press releases issued by U.S. senators. The case occurred when Sen. William Proxmire gave a “Golden Fleece” award to a scientist working on a federal grant and publicized it in a press release.
PRIVILEGED COMMENT – Dixon v. Superior Court of Orange County, 1994 — In a classic SLAPP case (strategic lawsuit against public participation) a retired college professor who questioned the competence of an environmental assessment company was sued. Since California law invites public comment on such environmental issues, the court held that the professor’s comments were absolutely privileged regardless of his motives. Many similar cases have been heard in California and other states in recent years, and most have resulted in summary dismissal. A Virginia case involving a professor at Clinch Valley Community College dragged on for many years before it was dismissed.
related LIBEL CASES
NEUTRAL REPORTING: Edwards v. National Audubon Society, 1977 — The New York Times reported both sides of a heated dispute over pesticide science, and noted that the Audubon society said scientists consulting for industry were “paid to lie.” The scientists sued the New York Times, which successfully defended itself with the“neutral reportage” defense.
FACT VS OPINION: Janklow v. Newsweek, 1986 –– South Dakota Gov. William Janklow sued Newsweek after an article described his prosecution of Indian activist Dennis Banks as revenge after Banks (apparently falsely) accused him of raping an Indian woman. Courts found that the opinion expressed fell under the fair comment and criticism defense (See above)
FACT VS OPINION: Michael Milkovich v. Lorain Journal Co, 1990 — When “opinion” rests on facts known to be false, plaintiff can sue; some fear this is loss of “fair comment” defense. However, the court also reaffirmed the Philadelphia Newspapers decision (above, in this section) and said an expression of pure opinion which can’t be proven false cannot be libel.
BURDEN OF PROOF: Philadelphia Newspapers v. Hepps, 1986
— Plaintiff has burden of proof to show that information is false; the media doesnt even have to show its true, even in a case where a private person is suing about public issue.
EMOTIONAL DISTRESS: Hustler Magazine and Larry C. Flynt v. Jerry Falwell, 1988 — An advertising parody was not a believable defamation, and the Virginia common law tort against “intentional infliction of emotional distress” is not permissible as a form of libel action. Oral arguments before the S Supreme Court in this case were accurately presented in movie, “The People Versus Larry Flynt:”
Veggie Libel & SLAPP cases
PINK SLIME: Beef Products Inc. v. ABC, 2017 — A meat processing company sued ABC news following the broadcast of a report on “pink slime,” the residue of butchering, which the company prefers to call “lean finely-textured beef.” The company sued for libel and under a state law prohibiting product disparagement. The case was settled out of court in 2017, with terms undisclosed, but it seemed before the settlement that BPI would not prove actual malice under the Sullivan standard.
TOXIC COAL WASTE: Green Group Holdings v Schaeffer, 2016 — A toxic waste handling company filed a $30 million defamation suit against a group of citizens who complained about the way coal ash disposal has affected their town. The ACLU forced the company to drop the lawsuit. (See “What happens when a waste company sues critics,” this site)
VEGGIE LIBEL: Texas Beef Group v. Oprah Winfrey, 1998 – A group of Texas cattlemen sued Oprah Winfree for violating a state law against “product disparagement” (Veggie libel). The segment of the show was called “dangerous foods,” and Winfree invited several people concerned about mad cow disease and e-coli onto the show, along with others who defended the food industry. The suit was dismissed at the federal trial court level in Texas in Feb., 1998. Veggie libel cases are judged on the Sullivan actual malice standard.
Science and libel
Ben-Jei Tsuang, a scientist at National Chung Hsing University (NCHU) in Taichung, Taiwan, was sued in Taiwan for suggesting that there was an increased cancer risk in the vicinity of a petrochemical company in Mailiao. Tsuang won the lawsuit in Sept. 2013.
Michael Mann v Steyn and National Review, 2024 —A scientist at the University of Pennsylvania sued National Review for libel for calling his work fraudulent. Mann is “the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.” The suit survived recent motions to dismiss. Among articles about it are Ethan Elkind’s defense of the suit; and a pro-Steyn article here. Mann won his lawsuit in February, 2024.
Andrew Weaver of the University of Victoria, Canada, sued Canada’s ultra-conservative National Post in 2010 over “grossly irresponsible falsehoods” about his work and climate science in general. He won the suit in Feb. 2015, and the courts awarded $50,000. (Weaver had asked for a relatively small amount in damages). The National Post articles called Weaver an “alarmist” who disseminates “agit-prop” and a “sensationalist” that “cherry-picked” data as “Canada’s warmest spinner-in-chief,” according to a Feb. 6 2015 DeSmog story.
The British Chiropractic Council sued columnist Simon Singh in the UK for his caustic views on chiropractic medicine. Singh won the lawsuit in 2012.
Uniroyal v CBS, 1989 – This is the Alar (daminozide) case. Alar is a plant growth regulator widely used on apples to cause stem thickening, maintain commercial quality of apple, uniform ripening. Concern started growing in the 1980s. EPA concluded it was a probable human carcinogen, negotiated with Uniroyal, no action. NRDC began a campaign, some supermarkets didn’t sell apples w/ Alar. Then, in 1989, CBS ran a story about Alar and most other media picked it up. One was called: “Don’t look now but we’re poisoning our kids.” Apple product sales dropped 30% in month, $250 million in losses. Uniroyal tried to prove that CBS aired knowingly false information, made with the intent to damage the company, but they had the burden of proof, and in 1994, the courts said Uniroyal hadn’t met its burden of proof.
Auvil v. CBS 60 Minutes, 1995 — A federal court dismissed a suit by makers of Alar, a chemical used on apples to improve their appearance, saying that Auvil had to prove the CBS report detailing concerns over cancer causing pesticides was false.
McDonald’s Corporation v Steel & Morris, 1987 – 2005 – Two London Greenpeace campaigners handed out a pamphlet accusing McDonalds of “McMurder,” ecocide and other environmental and human health insults. McDonalds won in the UK under older laws that put the burden of proof on defendants. In 2005 the case was appealed to the European Court of Human Rights, and McDonalds lost. The case is somewhat similar to the 1973 Nestle Infant Formula “Baby Killer” libel case heard in Switzerland.
Cape Wind v Donelan, 2006 — Not a path-breaking case, but more of an example of how libel law works on a day to day basis. John Donelan, a Massachusetts activist, sent out a fake press release saying a local business was boycotting Cape Wind, a wind energy development group that was attempting to set up a wind energy project off Cape Cod. Cape Wind hired an investigator and then sued for Donelan libel. The case was settled when Donelan paid Cape Wind $15,000.
Koch v Youth for Climate Truth, 2011 – Utah courts dismissed a lawsuit brought by Koch Industries against a group that issued a fake press release stating that Koch would no longer fund fraudulent climate skeptic groups. This is a classic SLAP suit against an activist stunt.
In RE Steve Lipsky, 2015 — The Texas Supreme Court affirmed First Amendment rights for defendant Steve Lipsky, who was sued by Range Resources, an oil and gas company, for posting YouTube videos showing water taps on fire from fracking gas. An SEJ tip sheet noted that the oil firm “Seeks to silence fracking pollution concerns with defamation suit.”
John Oliver lampoons coal boss Bob Murray’s libel suits
TRUMP RELATED LIBEL SUITS
Donald Trump is no fan of free speech, largely because he has been the butt of an unending stream of humor that his own behavior encourages. Rather than consider a more mature approach to his own life, Trump attacks the Constitutional basis of the nation’s political life. Take this Tweet about Saturday Night Live, for instance. “How do the Networks get away with these total Republican hit jobs without retribution?”
“Donald J. Trump is a libel bully,” says Susan E. Seager in the Media Law Resource Center, noting that Trump has filed over 4,000 lawsuits over 30 years.
Trump’s Libel suits:
1984 — Trump’s first libel suit was in response to criticism of a proposed building in New York harbor.
2005 — TrumpNation: The Art of Being the Donald was a 2005 biography of Donald Trump was the subject of a $5 billion lawsuit against author Timothy L. O’Brien. It was dismissed in 2009, and an appeals court affirmed the decision in 2011.
2010 — Trump University filed a libel suit against Tarla Makaeff, a former student, who initially sued to recover money shew paid to the private “university.” The case was dismissed in 2014 and Trump “U” was ordered to pay Makaeff’s legal costs.
2014 — Trump sued “Miss Pennsylvania,” a woman who alleged his Miss USA 2012 beauty pageant was rigged.
Before he was president, he also sued the Chicago Tribune for criticizing his taste in architecture — and lost. He sued a former student at the former Trump university for saying it’s not really a university — and lost. (Susan Seager at the Media Law Resource Center has details).
Trump sued the New York Times on Feb. 26, 2020, and the Washington Post, on March 3, 2020, for libel concerning opinions about Trump’s relationship with Russian dictator Vladimir Putin. In the suit, Trump claimed that the Times knowingly published the supposedly false charge that there was a “quid pro quo” with the Russians in return for their help in the 2016 election. (The plaintiff’s petition can be read here.) This “quid pro quo” was supposedly described in an op-ed written by former New York Times editor Max Frankel and published March 27, 2019. In the op-ed, Frankel rejected small concerns about “collusion” with Russia in the Trump campaign. The much larger issue, he said, involved the relationship between Trump and Putin. Both were dismissed. (See “Another laughable libel suit,” this site).
Why does Trump file so many libel suites? These are political tactics, not serious lawsuits, and Trump certainly knows enough about libel to know that the suits are frivolous. ProPublica president Richard Tofel saw it this way:
“What is happening here is a cynical play to establish a talking point. Now, whenever the nation’s leading newspaper reveals some new abuse of power or malfeasance in office, Trump can point out he is suing the Times. Perhaps, he may hope, the Times news pages will even pull a punch or two to avoid being seen as a presidential adversary.”
Tofel goes on to say “I hope and trust they will not.”
Trump’s overall plan would be to dismantle libel laws and make it easier to sue media organizations for unfavorable coverage. But only the US Supreme Court could change the law of libel. According to First Amendment Watch: “There is little that the President can actually do to change the libel laws. There is no federal law on libel. State laws control libel, and all such laws are subject to stringent First Amendment protections for the press and other speakers that the Supreme Court has imposed through cases such as the landmark New York Times v. Sullivan decision in 1964. ”
Justice Clarence Thomas has called for re-evaluation of libel laws — “New York Times (v Sullivan, 1964 decision) and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote in McKee v Cosby, 2019. “The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas said.
In response, many First Amendment defenders see the national standard in Sullivan as crucial. “Before Sullivan, some states allowed libel plaintiffs to triumph even if the allegedly defamatory statement was proved true, so long as it was published with hostility toward the plaintiffs,” wrote Mark Joseph Stern in a February 2019 Slate magazine piece.
An additional issue, as noted earlier, is that under state laws, libel suits were often used to silence civil rights advocates in the American South before the NY Times v Sullivan case of 1964. In one typical example from South Carolina, a Black editor — John Henry McCray — was charged with criminal libel and forced to serve two months on a chain gang in 1954 for simply reporting the last words of a death-row inmate.
ADDITIONAL RESOURCES
New York Times v. Sullivan: The Case for Preserving an Essential Precedent, Media Law Resource Center, March 2022.
First Amendment Center — An Environmental Advocate’s Guide to Avoiding Defamation and Other Publication Lawsuits (2005)
Civil Liberties Defense Center — Veggie Libel Laws: Attempts at Silencing Animal Rights Activists (2012)
Scientist cleared of libel in Taiwan court — Nature (2013); also see this earlier article about the case.
Historical interest, concerning change in standards in UK: Press standards, privacy and libel: second report of Parliamentary session 2009-10, UK.4.
Summary judgement in a 2021 Canadian libel case: In Soliman v. Bordman, the Ontario Superior court of Justice awarded $500,000 in damages to Walied Soliman, a Muslim lawyer, against Daniel Bordman, a self-declared online journalist who used social media and alternative news media outlets to accuse Soliman of supporting terrorism.
Recent state libel cases
Not precedent setting, but an interesting glimpse into how the law works in Virginia and West Virginia.
Woody v Carter, 2008 –– Developer Roger W. Woody sued a Christiansburg VA resident and blogger Terry Ellen Carter for complaining about a large mound of dirt on one of Woody’s properties. A Montgomery County judge said that the allegations did not support claims that Carter’s speech was unlawful, and refused to let the case go to trial. The judge ruled on what is called a demurer,. A copy of the filing is at this ACLU web site.
Jordan v. Kollman, 2005 — (Virginia case) — The Virginia Supreme Court found that a political ad was not libelous, reversing a trial court’s decision. The ad attacked J. Chris Kollman, III, former mayor of the city of Colonial Heights (a suburb south of Richmond), for supposedly approving a low income housing project. Kollman sued for libel. The ad said in part: “It’s unbelievable that a massive housing project adjacent to a flood plain would be located in such a congested residential area . . . Think of the potential for crime, drugs, and demands on our school system . . . think of the impact on all of us . . . how much higher will reassessments go to pay the horrendous cost to the taxpayer . . . over $700,000 to widen Archer Avenue and untold costs for police, fire, and EMS services.” But the political criticism was wrong. In fact, Kollman was concerned about the project and attempted to have the city buy the land from the developer and create a park. Even so, the court found for the defendant: “There is insufficient evidence in the record to support a finding under the clear and convincing proof standard that Jordan’s ads in The Progress Index, which Kollman claimed as defamatory, were published with actual malice. Thus, the trial court erred …”
Rappleyea v. WDBJ, 2001 — (Virginia case) — WDBJ TV Roanoke did not defame a toy store employee by reporting that she had been charged with assaulting a 7-year-old shoplifting suspect, a jury found. Charlene Rappleyea, an employee of Toys R Us in Lynchburg, filed a libel suit after a TV reporter filed a story based on the public record and also including comments from the store manager denying the allegations and an interview with the 7-year-old girl’s parents. Although the assault charge brought by the parents against Rappleyea was dismissed, Rappleyea claimed her reputation was harmed by WDBJ’s coverage. A Roanoke Times article said: “The girl’s parents told WDBJ that their daughter was ordered to lift her shirt and unbutton her pants after Rappleyea questioned her in the store’s restroom about a possible theft at the store. Rappleyea then “allegedly stuck her hand into [the child’s] pants to see if she was concealing any merchandise,” the report stated. The longtime store employee denied the allegations, and an assault charge against her was later dismissed – as Channel 7 reported in a follow-up story…. Rappleyea’s lawyer contended [that the reporter] went too far by interviewing the child’s parents without checking into the allegations or giving Rappleyea an opportunity to comment. ‘He sent this story out to hundreds of thousands of people, and it was false’ Richmond attorney Hayden Fisher said.
Murray Energy v The Gazette, 2012 — ( West Virginia case) –– Murray coal company sued the Charleston WV Gazette in August, 2012 for a column by Ken Ward, entitled Mitt Romney, Murray Energy and Coal Criminals. The lawsuit, Murray Energy v Gazette (brief), was filed in the State of Ohio, where defamation law is similar to most other states.
Sheckler v. Virginia Broadcasting Corp, 2003 — (Virginia case) — WVIR, a Charlottesville VA television station, stated that police had found cocaine in the home of Jesse Sheckler of Stanardsville Va. Although Sheckler had been arrested along with several others whom he knew, he was not convicted of drug possession and maintained that he was innocent. After he was acquitted, WVIR did not apologize or retract the charge, and Sheckler successfully sued for libel, winning $10 million. The amount was reduced to $1 million on appeal. The jury trial was influenced by an unrelated ethics controversy at the New York Times.
Jordan v Kollman, 2005 — (Virginia case) — A libel suit between candidates for Colonial Heights, Va, city council involved allegations that political advertising run by Claude Jordan falsely portrayed former mayor Chris Kollman’s position on a controversial housing project. Kollman’s lawsuit was not successful since he failed to prove actual malice under the Sullivan standard.
READING
“A Libel Suit Yields a Vigorous Defense of Free Speech,” New York Times, June 29, 2017.
“First Amendment: New York Times v Sullivan,” 2023, Annenberg Center.