Fifty years ago, on March 9, 1964, the Supreme Court issued its opinion in New York Times v. Sullivan – a decision that allowed certain categories of gigantic and powerful corporations to negligently ruin ordinary citizens with impunity.  It should surprise no conservative that the particular corporation involved in this case was the New York Times or that Sullivan, the injured party, was a minor official in the South.

The New York Times had carried a full-page ad reporting a number of “facts” relating to the conduct of officials in Alabama, and this advertisement described the behavior and statement of Alabama officials regarding integration.  The problem was that many of the statements were not true, and that all of these errors fell in the same direction:  the errors in reporting all made the Alabama officials look worse than they were.

Sullivan, the Montgomery commissioner of public safety, requested that the New York Times issue a retraction, which was a predicate under Alabama law to a libel action to punitive damages.  The New York Times refused, although it later did publish a retraction at the request of the governor of Alabama with regard to anything that may have affected him or his duties.

An Alabama jury then awarded in the amount of $500,000, which the New York Times appealed, eventually landing in the Supreme Court.

The decision in New York Times v. Sullivan is one of the most bizarre during an era in which the Supreme Court routinely created new and unexpected constitutional law, seeming to confirm Justice Brennan’s odious statement to the effect that with five justices on the Supreme Court, one could do anything.

The decision created a new standard in defamation cases involving “public figures” so that a news organization could be liable only if the “public figure” could prove “actual malice.”  Almost at once problems with this tortuous reasoning arose.  Who the heck is a “public figure”?  No one knew.  Why were “public figures” stripped of the right to collect damages for actual harm done to their reputations by rogue news organizations?  Because, the Court reasoned, if careless reporting was punished by successful lawsuits, then news organizations would be hesitant in reporting.

The practical effect is that defamation was effectively destroyed in America.  Giant news organizations can be as sloppy and negligent and destructive as they want with impunity.  Careers can be ruined, lives can be wrecked, reputations can be savaged – all because the Supreme Court found this notional right to defame without consequence if the defamation is not proven malicious.

Worse, this decision accelerated a perverse dichotomy regarding the actions of giant corporations.  A new critter in constitutional defamation law – “commercial speech” – began to reappear in Supreme Court decisions.  This sort of speech received no special protection at all.  Giant corporations that are not part of the media can be soaked for tens of millions even if their statements to the public are simply inaccurate and cause harm, even if the corporations was not intending to mislead and were making the statements in good faith.

The First Amendment, of course, deals with speech and press generally.  It is liberty, not political debate, that is protected.  Artificial distinctions in the type of speech and the character of the person defamed are not even hinted at in the Federalist Papers or the other discussions concerning the Bill of Rights.  Besides, isn’t most expression a composite of many things:  political commentary, religious beliefs, personal opinion, business discussions, entertainment, and so on?  How and why should courts be looking at the nature of speech to determine its level of protection?

The Supreme Court “solved” a problem that did not exist.  The officials in Alabama, however one may feel about their attitude towards integration, had been the victims of defamation, either through negligence or through malice.  Alabama law provided extra protection to defendants in defamation suits by requiring the plaintiff to first ask for a retraction, which Sullivan had done.   

The real victim was truth.  New York Times v. Sullivan created a license for the news media to publish “facts” that were not true, as long as “actual malice” could not be proven.  No one can prove such, really, so we have become inured to wildly inaccurate news stories whirling around, hurting people, and creating a surreal arena of public discourse in which no one knows what to believe anymore.  Reversing this travesty and adopting a serious federal statute to require truth in public reporting ought to be high on the conservative agenda.