A New Threat to the Freedom of the Press
The modern free press hinges on a single Supreme Court case. Trump wants to reverse it.
On the 25th page of The New York Times edition of March 29, 1960, tucked between an ad for the new Chrysler station wagon that could “stretch gasoline like rubber bands” and coverage of a recent Senate investigation, was a full-page advertisement from the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. The ad was titled “Heed Their Rising Voices,” and it recounted numerous civil rights abuses by Southern officials. It recalled a peaceful protest by Alabama students that was met with “truckloads of police armed with shotguns and tear-gas” who “ringed” their college campus. And it called attention to Southern officials’ seven pretextual arrests of Dr. King.
But the ad, noble as it was, didn’t get the facts quite right. King had only been arrested four times, not seven. And the police had not exactly formed a “ring” around the students, although officers were deployed nearby. For these minor mistakes, Montgomery Commissioner of Public Safety L. B. Sullivan brought suit against the Times for defamation. Although Sullivan was not mentioned in the ad, a jury found the Times liable and awarded Sullivan $500,000 in damages.
Libel suits like this were a common and highly fruitful practice for segregationists. The suits aimed to stifle press coverage of the Civil Rights Movement by inciting fear in editors: one innocent slip up could bring a damages suit that would bankrupt a paper. It was in this context that the Supreme Court granted review of the jury’s award to Sullivan, in what would become the landmark case New York Times Co v. Sullivan.
The Court in 1964 unanimously reversed the jury’s decision. It held that the First Amendment protected newspapers from defamation suits, so long as any factual mistake was not made with “actual malice”—in other words, the Times was safe so long as it did not publish the ad knowing that it was false, or with reckless disregard as to whether it was false.
The decision enabled the press to cover the Civil Rights Movement without hesitation. It gave voice to the voiceless. And it has been rightly lauded by journalists and legal scholars for decades as the pinnacle of the American free press—the most expansive in the world.
But in recent years, Sullivan has come under threat. President Trump and many of his allies have either explicitly or implicitly called for the Court to overturn Sullivan, with Trump in 2016 saying he wanted to “open up” libel laws. And two Supreme Court justices—Clarence Thomas and Neil Gorsuch—support revisiting the decision. Given these threats, many observers now fear that a recent settlement between ABC and Trump indicates that Sullivan faces an approaching doom, with Columbia’s Knight First Amendment Institute writing that, in Sullivan’s absence, “libel suits could again become weapons of blatant political suppression.”
The settlement came after Trump sued ABC in 2024. Trump alleged that anchor George Stephanopoulos defamed him by stating that Trump had been “found liable for rape” against E. Jean Carroll. The statement, Trump alleged, was factually incorrect—Trump had been found liable for sexual abuse, not rape. The definition of rape under New York law, however, is extremely narrow; according to the judge of those proceedings, Trump’s actions amounted to rape as the term is commonly understood. In other words, ABC could have attempted to argue that, while Stephanopolous misstated the nature of the legal ruling, the colloquial meaning of his words was correct.
After a judge in December refused to dismiss the case, ABC rushed to settle with Trump. ABC agreed to donate $15 million to Trump’s future presidential foundation and museum, and pay another $1 million for Trump’s legal fees. But Sullivan’s protection for ABC in a case like this is robust. So why would ABC volunteer $16 million in a case it expected to win?
As with any closed-door settlement, there is no clear answer. Perhaps ABC (and its parent company, Disney) simply wanted to avoid litigation against a sitting president. Or perhaps the facts were not favorable to ABC. If Stephanopoulos, for example, had sent or received emails that indicate he knew Trump was not found liable for rape, Trump might have been able to show that ABC acted with actual malice, thus meeting the high bar under Sullivan.
There was, however, a more ominous gloss on the situation. The New York Times’ reporting on the case indicated that Disney settled in part out of fear that Trump’s suit could be a vehicle for the Supreme Court to reverse Sullivan entirely.
Why Trump wants this result is obvious: it suits his desire to stick it to the media. Less clear, at least at first glance, is why a growing number of legal scholars and judges want the Court to undo Sullivan. But it has to be admitted that they have something of a case—Sullivan was a quintessentially “activist” decision of exactly the sort that originalists are so eager to overturn. “[The majority reasoning in Sullivan] is all policy,” conceded David Rivkin and Andrew Grossman in a piece otherwise supportive of the ruling. Justice Thomas, for example, argues that the Sullivan court departed from the history and text of the Constitution. Not only does the Constitution say nothing about “actual malice,” it does not even mention defamation. Many originalists, moreover, would contend that the press freedom guaranteed by the First Amendment was understood at the time of its ratification as little more than a prohibition on prior restraint. In other words, while the First Amendment forbade pre-publication censorship of a newspaper by the government, it did not pertain to post-publication defamation suits.
Justice Gorsuch, meanwhile, argues that Sullivan is outdated. He posits that in a technological age where every person has a “soapbox in their hands,” Sullivan enables cheap speech and misinformation. Indeed, he and others—including Justice Elena Kagan, years before she joined the Supreme Court—suggest that Sullivan may create perverse incentives: since journalists can only be punished for “knowingly” publishing false information, they are better protected from a defamation suit if they forgo fact checking altogether.
But these critiques are overblown. While Sullivan may in theory create perverse incentives, the safest way for publications to avoid a defamation suit is to publish accurate information. And for those who feel misinformation is unchecked, the proper remedy lies with Congress as opposed to a high-handed Court. Regarding originalist concerns, the “actual malice” standard may have a deeper history than many presume, with 19th century libel cases often taking intent and not just facticity into account. Those ancient cases may throw a spanner in the works of the originalist arguments against Sullivan and be just enough to save it should a challenge reach the Court.
These technical details aside, the Court would be wise to reaffirm Sullivan. While Sullivan may have its shortcomings, just as every landmark decision does, these shortcomings are easily outweighed by the profound freedom it creates: “Debate on public issues should be uninhibited, robust, and wide-open,” Justice Brennan ringingly wrote in the Sullivan majority decision. Without Sullivan, the press would again be muzzled by despotic and self-interested public officials. Local papers, already struggling from low funds, would face certain death when a petty town councilman files suit. And editors nationwide would make the rational calculation that the risk of financial ruin outweighs the benefit of publishing an incriminating story about a rich public figure.
Behind the freedoms that the United States’ press currently enjoys is the Sullivan decision. It is, as Justice Kagan wrote in 1993, a “marvel” of American democracy—even if its survival now is as delicate as it has ever been.
Jeffrey Cieslikowski is a law student and researcher focused on free expression.
Follow Persuasion on Twitter, LinkedIn, and YouTube to keep up with our latest articles, podcasts, and events, as well as updates from excellent writers across our network.
And, to receive pieces like this in your inbox and support our work, subscribe below:
 | A guest post by
|
I think the idea behind Sullivan is good and beneficial. But I strongly object to courts making rulings on the basis of social benefit rather than legality. Bad laws (or absence of good ones) must be allowed to have bad consequences. Otherwise, the perverse incentive is for Congress to pass bad laws or none at all for political benefit and let the courts fix any ill effects. Reverse Sullivan and make Congress enact it.
Donald Trump, in addition to the Christian Nationalists who populate his movement are together the absolute exemplar of the reasons why the First Amendment is so crucial to our Republic. Those of us who defend all segments of the First are, in fact, Trump’s ‘enemies within’.
More power to all of us!