The Baldy Center Podcast

The Baldy Center for Law and Social Policy at the University at Buffalo
Spring 2023, Episode #34
Podcast recording date: 6/2/23
Host-producer: Simon Honig
Speaker: Samantha Barbas
Contact information: BaldyCenter@buffalo.edu

Transcription begins
Simon:
Welcome to The Baldy Center for Law and Social Policy Podcast. I'm your host, Simon Honig. Today I'm joined by Samantha Barbas. Professor Barbas is a scholar in the areas of tort and mass media law, and the Director of The Baldy Center for Law and Social Policy. Her work focuses on the intersection of law, culture, media, and technology in United States history. Her recent research has explored the history of freedom of speech, privacy and defamation, including her latest book, Actual Malice: Civil Rights, and Freedom of the Press in New York Times v Sullivan. Today I'm here with Professor Samantha Barbas from the UB School of Law. Thanks so much for your time today.

Samantha:
Thank you for having me.

Simon: 
Of course. So, you wrote a book entitled Actual Malice: Civil Rights and Freedom of the Press in New York Times v Sullivan. I know you are a professor of tort law at UB, but before we get into the book specifically, I was wondering if you could give a short background on your work and other publications in this area.

Samantha:       
Yeah. So, I am a legal historian and I specialize in history of mass media and mass media law and First Amendment law, and I've written several books in this field, including a book on the history of libel and privacy law. I did a book on the tabloid Confidential, which was a scandal publication issued in the 1950s that was essentially bankrupted as a result of libel suits. And I wrote a biography of a very famous First Amendment lawyer from the 1930s and forties, whose name was Morris Ernst. He was general counsel of the ACLU. So I've written broadly in this field of media and First Amendment history, and that took me to this work on New York Times versus Sullivan.

Simon: 
So getting into New York Times versus Sullivan. Could you give a brief background on that case, why it's so important today, and then as a recent graduate of law school, I'm curious if you could give our listeners a little view into how that case is framed for first year law students in their torts class?

Samantha:       
So, New York Times versus Sullivan was one of the most important First Amendment cases in American history. This was decided by the US Supreme Court in 1964. It was a libel case. It involved a libel or defamation lawsuit brought by a police commissioner of Montgomery, Alabama against the New York Times and four civil rights leaders. The case was brought over an advertisement that appeared in the New York Times in 1960 that allegedly accused public officials in Montgomery, Alabama of inflicting brutality on civil rights protestors. These officials, one of which was L.B. Sullivan, Police Commissioner, said that those statements were not true, that those statements injured their reputation, and they had a right to claim a damage award. So, L.B. Sullivan brought his libel case in the state courts in Alabama. He won a judgment of half a million dollars, which represented the largest libel judgment in history to that time. And we can go over some of the other details, but the short version of the story is that this was appealed by the New York Times and the Civil Rights leaders to the US Supreme Court, and the court issued a ruling that for the first time said that speakers in libel cases are protected by the First Amendment. So that libel law comes within the domain of the First Amendment's protections. And in particular, the court issued a rule known as actual malice, which says that a public official who is bringing a libel case needs to show that the speaker defendant made the statement with actual malice, which means reckless disregard of the truth, means that the plaintiff has to show that the speaker made the statement, either knowing that the statement was false or having strong reason to believe that the statement was false. So this offers a lot of protection for speakers. The court said this is a constitutional matter. This is a matter of freedom of speech and press, and this law has protected journalists, really speakers of all kind from harassing libel suits, and should be noted that L.B. Sullivan's libel case was a harassing libel suit. His reputation really hadn't been harmed. The statements that he alleged were false were not really false, they were only false in some minor aspects. The overall meaning was true. And Sullivan was suing the Times and the civil rights leaders because he wanted to shut them up because they were criticizing segregation. And the New York Times was in fact broadcasting to the world or publishing to the world, you know, all of the ways that officials were attacking civil rights protestors in the South. So Sullivan and his allies wanted to use libel law to shut down the press, to shut down this coverage of the Civil Rights Movement. So what the Supreme Court's rule in New York Times versus Sullivan does is it kind of protects against these sort of, say frivolous, but these harassing libel suits. And it gives the press a lot of freedom to report, to comment on public officials, to criticize leaders. And really is at the core of our system of free speech protection.

Simon: 
A lot of individuals know about defamation and slander, but not a lot of people understand how libel plays into that. Could you give a short description of the difference between libel and slander?

Samantha:       
Yeah. So defamation is an area of law that is comprised of two separate torts, libel and slander. So slander deals with spoken defamation and libel deals with printed or written defamation. Of course, defamation deals with statements that lower a person's reputation. A statement is defamatory if it, you know, injures a person's standing or reputation in their community. Slander actually barely exists in the United States right now. There are so few slander cases that are actually litigated. It's almost impossible to win, so people don't bring them. There are, of course, many, many libel cases brough each year and many of them are brought against the press. Media is a typical defendant in libel lawsuits, and we hear a lot about that. You know, we've been hearing about that recently with the Dominion lawsuit against Fox News that was a libel case. There was a case last year involving Sarah Palin suing the New York Times over an editorial that she said was false and defamatory. Trump has brought a number of libel suits against CNN, the Washington Post and other major outlets. So slander, not really an issue in American law. Libel is a huge issue and highly litigated subject.

Simon: 
There's a bit of background given for the case, and obviously with the timing of the case, you can infer a little bit of historical context, but how much does the context do you think, play into the story in a way that it's not specifically taught in school? Because I remember that when we learned it in torts, it was, you know, obviously about the letter of the law cause that's what we were learning. But I feel like it might have left out a bit of the historical context that goes along with it.

Samantha:       
Yeah, so I think that New York Times versus Sullivan is often regarded as a case about freedom of the press, which of course it is. But what I try to do in my book is to show that it is also a case about civil rights, and that it comes out of the Civil Rights Movement. And to really understand the importance of Sullivan, we have to know that historical context. So I really never understood prior to researching this book, the threat that libel law opposed to the press prior to 1964. The New York Times was facing not only this libel suit by L.B. Sullivan that resulted in a half million-dollar verdict, but 10 other libel cases that were brought over its civil rights coverage. And these judgements actually were going to bankrupt the New York Times. If the Supreme Court had not ruled the way it did, the New York Times might not be publishing today. I mean, journalism would've looked entirely different. So I think understanding the context and the facts leading up to the case really underscore the importance of the case. And it will help us appreciate, in my opinion, you know, the value of Sullivan, you know, for protecting democratic discourse and the kind of robust debate that should be part of the Democratic society.

Simon:
So as you mentioned before, this is not your first book in this general subject area. So I'm curious as to what your inspiration was for researching and writing this book specifically.

Samantha:       
Yeah, I guess there were a number of inspirations. One inspiration is that this is sort of the most important case in my field. You know, I work in media law and there are of course many important Supreme Court decisions in the field, but none is regarded as being more impactful than New York Times versus Sullivan. So I was always interested in the Sullivan case and fascinated by, you know, its history and its importance. Another inspiration for writing this book was that I had access to some archival material that other scholars and historians had not made use of when writing on Sullivan. The New York Times left some of its historical records at the New York Public Library, and this had a lot of very, you know, interesting documents detailing how the New York Times was defending itself in this lawsuit, and how it generated some of the First Amendment arguments that would ultimately win at the Supreme Court. I also had access to some of the records of civil rights leaders, Martin Luther King's papers, the papers of his organization called the Southern Christian Leadership Conference. And it really illustrated how critical this lawsuit was in the history of the Civil Rights movement. So I was really kind of motivated to bring those documents forward in this story. And then really New York Times versus Sullivan has been very much in the news in recent years. When I started writing the book, people were beginning to talk about the possibility that the Supreme Court might overrule New York Times versus Sullivan. Donald Trump, I think in 2016 had said he wanted to quote unquote open up libel law that is, he was going to, you know, see somehow that New York Times versus Sullivan was overruled so that it would be easier for him and, you know, his allies to sue the press over criticism. And ever since then, there's been kind of a movement, a lot of organizations and lawyers are trying to queue up a case that would get to the Supreme Court and invite it to overrule New York Times versus Sullivan and related cases. So as I was writing this book, you know, the case became even more important, and that really kind of, you know, made me want to write the book even more again, to show how, you know, through the history, we can really appreciate the critical importance of this decision for freedom of the press.

Simon: 
So you mentioned that you had a couple sources that were previously unexplored. I'm curious as to why they weren't looked into before. Were they not available before, or were they, did you just have, you know, a certain special access to them?

Samantha:       
I did not have special access, and I am not sure why they were not consulted. Some of those sources have to do with, as I mentioned, the Civil Rights Movement. And I think many scholars writing on New York Times versus Sullivan have tended to look more at the freedom of the press dimension and maybe not in not getting into that side of the story. I found that there was a whole, you know, other unexplored dimension that I hope, you know, others can learn from.

Simon:
So they kind of expanded on the civil rights side of the story, which as you said, is kind of less taught in schools and torts classes.

Samantha:       
Yeah, there was actually a companion case that the Supreme Court decided called Abernathy versus Sullivan, and that was the part of the case that involved the four civil rights leaders. But Abernathy versus Sullivan never gets talked about. It's always New York Times versus Sullivan sort of the lead case and the most important.

Simon:
What would you like your readers to gain from reading the story?

Samantha:
Yeah, I think that the story really illustrates the importance of New York Times versus Sullivan to freedom of the press and really the way that libel law could be weaponized in the absence of these constitutional protections. I mean, before 1964, it was possible for public officials who didn't like a particular publication that was criticizing them to actually bankrupt them and sort of sue them out of existence. In this case, you had several Alabama officials who were essentially colluding. They were in sort of a conspiracy, bringing these libel suits en masse in an attempt to shut up critics that they didn't like. And so I was amazed to see the extent to which libel suits could be used to suppress official criticism. And I hope that that's one thing that readers can learn, you know, is the inherent danger of libel law without New York Times versus Sullivan type protections. And I think another aspect of that is, you know, I think that the modern Civil Rights movement would not have taken off as it did. That is it might not have achieved the successes that it did, had it not been for New York Times versus Sullivan. A lot of news organizations were starting to take their reporters out of the South as a result of these libel suits. They said, we don't want to be sued. This is going to be really costly. So they stopped covering the Civil Rights movement in the sixties, and fortunately, Sullivan, you know, came out the way it did, and they went back and covered the Civil Rights movement, but if we didn't have media coverage of Martin Luther King and the marches and the protests. You know, I think the outcome of history really would've been different. We wouldn't have had, you know, maybe civil rights laws and the kinds of advances that we've had. So I hope that's another thing that readers can get from the book, you know, is understanding that this is a part of our civil rights story as well.

Simon: 
And then is there anything else that you'd like to discuss on the subject?

Samantha:       
You now, there's been a lot of talk about whether or not the Supreme Court will overrule New York Times versus Sullivan, and I don't know that it will, I don't think that it will, but it's interesting to contemplate some of the arguments that people are making for the Supreme Court to overrule Sullivan. There are many critics of the Sullivan decision who are saying, you know, that decision may have made sense in 1964 when we had public discourse that was kind of dominated by respectable newspapers like the New York Times. But today we have social media and many speakers on social media are not really responsible. They harm people recklessly, reputations can be destroyed instantly, right? If something goes viral and it's false, it's not as if you can really correct that. Even if you have counter speech, even if you talk back, your reputation is still harmed. People have talked about the problem of misinformation, and we have so much untrue material that's out there that really can harm individuals in society. And so the argument is that, you know, society and mass communications have changed so much in the past 60 years that maybe Times versus Sullivan is outdated. And we need to rethink the balance between freedom of speech and reputation. And for that, you know, reason to do away with New York Times versus Sullivan. And I'm not sure I agree entirely with those arguments, but I think those are valid observations, right? We do live in different times. Reputation is more fragile, I think, in a social media age where everyone has a platform and where people, you know, feel relatively unstrained, you think a lot of anonymous speech, right, can be very harmful. So it will be interesting to see how this all plays out in the next couple of years. There have been many petitions to the Supreme Court inviting it to reconsider Sullivan and these related cases, and the Supreme Court has not taken any of these cases, but there's a possibility that if presented, you know, with the right argument and the right set of facts that it might do that, and then we could really get a huge change in the free speech regime in United States

Simon: 
With the age of social media. I don't know if the court of public opinion has gained strength, but public opinion, I feel like is certainly more prevalent and accessible.  If they were to overturn it, what kind of downfalls do you foresee and do you think they would have to address, you know, the differences in mass media today?

Samantha:       
It seems that the, you know, parties that are going to be most sort of injured by change to New York Times versus Sullivan are really mass media outlets. News organizations are really going to have to think twice before covering public officials and public figures, especially those who are known to be litigious and, you know, will likely sue over criticism. I think the kind of the ordinary citizen who's, you know, sitting in his basement sending out horrible tweets is not really going to be the person that is threatened by a potential libel judgment. Again, it's going to be those institutions that are funded that would be targeted by, you know, libel plaintiffs and would really have the most to lose.

Simon: 
Thank you so much for your time today.

Samantha:
Yeah, thank you. Appreciate it.

Simon: 
You just heard an interview with Professor Samantha Barbas, Professor of tort and mass media law at the University at Buffalo School of Law, and Director of The Baldy Center. If you would like to purchase her book, Actual Malice, we'll provide a link with this publication. This has been The Baldy Center for Law and Social Policy Podcast produced at the University at Buffalo. You can learn more about the Center on our website: buffalo.edu/BaldyCenter. If you would like to share your thoughts on this podcast, tweet us @Baldy Center or send us an email at baldycenter@buffalo.edu. I'm your host, Simon Honig. Thanks for listening.

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