Times v. Sullivan ushers in an uncertain new age of press freedom.

1. Libel and the media
Times v. Sullivan ushers in an
uncertain new age of press freedom

2. Elements of libel
• Defamation

3. Elements of libel
• Defamation
• Falsity

4. Elements of libel
• Defamation
• Falsity
• Fault
– Different standards for public officials (and
public figures) and private figures. But no
longer is libel a no-fault tort.

5. Elements of libel
• Defamation
• Falsity
• Fault
• Publication

6. Elements of libel
• Defamation
• Falsity
• Fault
• Publication
• Identification

7. Elements of libel
• Defamation
• Falsity
• Fault
• Publication
• Identification
• Harm

8. Evolution of libel
• Falsity was not always an element of libel:
The greater the truth, the greater the harm

9. Evolution of libel
• Falsity was not always an element of libel:
The greater the truth, the greater the harm
• Fault was not an element of libel until the
1960s — it was a no-fault tort

10. Evolution of libel
• Falsity was not always an element of libel:
The greater the truth, the greater the harm
• Fault was not an element of libel until the
1960s — it was a no-fault tort
• How does requiring fault advance the
purpose of the First Amendment?

11. Libel versus slander
• What is the difference?

12. Libel versus slander
• What is the difference?
• Classic definition is that libel is written and
slander is spoken

13. Libel versus slander
• What is the difference?
• Classic definition is that libel is written and
slander is spoken
• Packaged television and radio reports have
blurred the difference. Today we talk
mainly about libel.

14. Libel versus slander

15. Can libel = prior restraint?
• In Near, Chief Justice Hughes wrote that
the Minnesota Public Nuisance Law
amounted to prior restraint

16. Can libel = prior restraint?
• In Near, Chief Justice Hughes wrote that
the Minnesota Public Nuisance Law
amounted to prior restraint
• Hughes cited Blackstone on post-
publication punishment

17. Can libel = prior restraint?
• In Near, Chief Justice Hughes wrote that
the Minnesota Public Nuisance Law
amounted to prior restraint
• Hughes cited Blackstone on post-
publication punishment
• Milton, in the Areopagitica, advocated
after-the-fact punishment, including death

18. Civil rights and libel
• As with Gitlowv. New York, the Times v. Sullivan
decision must be seen within the broader context of
the civil-rights movement

19. Anthony Lewis
• Wrote Make No
Law, a history of
Times v. Sullivan
• Retired New York
Times columnist
• Married to Margaret
Marshall, chief justice
of Mass. SJC

20. Ad on King’s
behalf
• Published in
New York Times
in 1960
• Contained several
minor errors

21. Four ministers also sued
• Rev. Ralph
Abernathy (right)
with King in
Alabama
• Idea was to keep
Sullivan’s suit in
state court

22. Times, ministers lose
• Found liable in
courtroom of judge
who presided at
re-enactment of
Jefferson Davis’s
inauguration
• $500,000 judgment
• Libel a state matter —
or is it?

23. Times v. Sullivan (1964)
• Unanimous decision written by
William Brennan
• Says Alabama court’s decision amounts to
punishment of seditious libel: criticism of
government officials
• Therefore, the Alabama court’s action is
unconstitutional under the First and
Fourteenth Amendments

24. William Brennan’s view
“[D]ebate on public
issues should be
uninhibited, robust, and
wide-open, and … it may
well include
vehement, caustic, and
sometimes unpleasantly
sharp attacks on
government and public
officials”

25. Actual malice
• New standard of fault that public officials
must show to prove libel

26. Actual malice
• New standard of fault that public officials
must show to prove libel
• Knowingly false

27. Actual malice
• New standard of fault that public officials
must show to prove libel
• Knowingly false
• Reckless disregard for the truth

28. A libel earthquake
• 1967: Actual malice standard extended to
public figures as well as officials

29. A libel earthquake
• 1967: Actual malice standard extended to
public figures as well as officials
• 1974: Private figures must at least show
negligence to win a libel suit

30. A libel earthquake
• 1967: Actual malice standard extended to
public figures as well as officials
• 1974: Private figures must at least show
negligence to win a libel suit
• 1989: Reckless disregard is defined as
knowledge of probable falsehood

31. Disadvantages for media
• Opens press defendants up to examination
as to their state of mind

32. Disadvantages for media
• Opens press defendants up to examination
as to their state of mind
• Harms media credibility by creating a
cynical attitude among press critics

33. Disadvantages for public
• Virtually no recourse for public official or
public figure

34. Case study: Dan Rather
• A 1980s case very
similar to the story
that brought him
down in 2004
• Won by testifying he
believed documents
were authentic
• If he had lost, could
Rathergate have been
avoided?