Q&A

Law professor decries attempts to roll back NYT vs. Sullivan

By CHARLES ANZALONE

Published March 3, 2023

UB law school professor Samantha Barbas sends a clear message for factions out there who want to weaken press freedoms granted by the Supreme Court’s landmark New York Times v. Sullivan case: Just leave it alone.

That advice would take its place with other clear lessons she believes are needed, especially when challenges to freedoms and protections Barbas has declared essential are increasing.

“I don’t think New York Times v. Sullivan should be changed,” says Barbas, professor and director of the Baldy Center for Law and Social Policy. “I think Sullivan strikes the proper balance between the protection of freedom of speech and protection of reputation.”

Barbas is the author of “Actual Malice,” which takes a historical view of the landmark 1964 press freedom case that “defined libel laws and increased protections for journalists, in the context of the civil rights movement,” according to The New York Times Book Review.

The book’s debut earlier this month coincided with the introduction of legislation in Florida intended to roll back the protections of Sullivan, following a conference on “media defamation” staged by Gov. Ron DeSantis, a longtime opponent of press freedoms.

Barbas spoke with UBNow about why New York Times v. Sullivan is under attack, and what that means for reasonable and authentic media coverage, particularly in 2023.

Your book took a historical look at New York Times v. Sullivan. Why is this research so relevant? How does this decision make it more difficult to sue media? What does it actually say?

New York Times v. Sullivan was decided by the U.S. Supreme Court in 1964. The Supreme Court ruled that under the First Amendment, a public official suing the press for libel must show that the defamatory statement was false and made with knowledge of its falsity, or with “actual malice,” which means “reckless disregard of the truth.”

In other words, the person bringing the libel suit must show that the speaker either knew the statement was false or had serious doubts about the truth of the statement and published it anyway. The Supreme Court later extended the “actual malice” requirement to libel suits brought by public figures.

“Actual malice” is a high bar to clear. The standard provides broad protections for the press against libel lawsuits brought over careless or innocent errors. It has prevented public officials and public figures from using libel law to stifle the press, as Southern segregationists attempted in the 1960s when they sued The New York Times.

Explain the recent threats and challenges to New York Times v. Sullivan. Why has this issue become timely again?

There have been several attacks on Sullivan in recent years, mostly from conservatives who want the Supreme Court to make it easier to sue their critics in the press for libel. Donald Trump criticized the Sullivan ruling and brought several high-value libel suits against news outlets, including CNN and the Washington Post. Gov. Ron DeSantis of Florida has publicly criticized Sullivan, and Florida Republicans recently introduced a bill that would roll back protections of Sullivan. At this moment, conservative lawyers and activists are filing lawsuits and bringing appeals to get the Supreme Court to reconsider Sullivan and rulings that extended Sullivan. Sarah Palin’s appeal of her loss in her libel case against The New York Times in 2021 includes a challenge to Sullivan. Supreme Court justices Clarence Thomas and Neil Gorsuch have stated their opposition to Sullivan. There are concerns the Supreme Court may vote to overrule Sullivan.

What’s behind the updated challenges?

Politics drive many criticisms of Sullivan, as does the desire of some conservatives to silence their media critics. Some argue Sullivan provides insufficient protection for reputation. Under Sullivan, it is difficult for public figures to win libel suits and recover damages for injury to their reputation. Some critics have also argued that the 1964 Sullivan rule should be changed in light of our new communication environment, in which people can be easily and permanently defamed online.

What should be done about Sullivan? What would you change if you could?

I don’t think New York Times v. Sullivan should be changed. I think Sullivan strikes the proper balance between protection of freedom of speech and protection of reputation. Libel law provides broad protections for freedom of speech and press, yet a plaintiff who can show actual malice can recover damages for injury to their reputation. Knowing and intentional falsehoods are not protected under New York Times v. Sullivan.

What would happen if Sullivan were to be overruled?

Any alteration to the Sullivan line of cases would undermine the ability of the press to report on public figures and give the public the news it needs about important issues. It would be substantially riskier for journalists to report on controversial subjects and individuals. It would limit our ability to criticize public officials and hold them accountable. It would limit the conversations that we as citizens can have about important topics of the day.