March 9 marked the 50th anniversary of the U.S. Supreme Court’s landmark libel ruling, New York Times v. Sullivan. The Times observed the anniversary with an editorial declaring that the ruling “represents the clearest and most forceful defense of press freedom in American history.”
Whether or not that is true, it assuredly enables the press to win the vast majority of libel suits brought against it. The great difficulty a libel plaintiff has in winning suits against the press assures that the press as a whole will regard Times vs. Sullivan as an unalloyed plus.
That’s too bad because there are some things in the ruling that are not good for the press nor for American society as a whole. And so long as Times v. Sullivan is regarded as beyond reproach, the country is denied the kind of critical examination of libel law all court rulings deserve.
Award-winning research at the University of Iowa has established that what plaintiffs want above all else when they bring a libel action is vindication of their claim that the story about them was false. But Times v. Sullivan does not make falsity the central issue in libel suits. Many times falsity is not addressed at all. Instead, the key issue for libel of public figures, the high court declared in Sullivan, is whether the press was at fault. The court defined fault as actual malice – that is, knowingly making a false statement or making it recklessly, that is, while having serious doubts about its truth.
Determining whether a reporter knew what he wrote was false or had serious doubts about it requires probing the reporter’s state of mind – why he wrote what he did – plus a whole series of questions related to the editorial process. The press ordinarily would find such questions unacceptably intrusive, but doesn’t make an issue of it because the actual malice hurdle erected by the Supreme Court enables the press to win almost all libel cases. So the press accepts the good with the bad in Times v. Sullivan and more less pretends the bad does not exist.
Times v. Sullivan does a poor job of protecting reputation while opening the editorial process to excessive scrutiny. The ruling also denies the public definitive answers when facts are in dispute. The ruling clearly needs more work, but don’t expect the press to press for it.
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