Libel and Freedom of Speech: New York Times Co. V. Sullivan

The Arguments

Herbert Weschler, the law professor who argued the Sullivan case before the Supreme Court, could have adopted various strategies to win his case.  He could have:

• Argued that the advertisement cannot be read as referring to Commissioner Sullivan; or
• Alabama did not have jurisdiction in the case.

And those arguments did appear in his brief.  His main argument, however, rested on the First Amendment.  The First Amendment, Weschler argued “pre-supposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.  To many this is, and always will be, folly; but we have staked our all upon it.  … It is clear that [political debate] is not delimited by any test of truth… not to speak of a test which puts the burden of establishing the truth upon the writer.” 

Weschler further contended that political speech could not be penalized because it damaged official reputation.  To support his case, he quoted Madison’s Report on the Virginia Resolution (http://www.constitution.org/rf/vr_1799.htm ): “…it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing public characters and measures.”

Weschler further proposed that damages be awarded if falsehoods were published with “actual malice”.  In other words, the person suing would not only have to prove that what was written was false but that the falsehood was printed with malicious intent to defame.

The brief for Sullivan (mostly written by Roland Nachman) in built its case largely around the value of a person’s reputation.  “If The Times prevails,” it read in part, “any false statements about any public officials [could be made].  The absolute immunity would cover false statements that the Secretary of State had given military secrets to the enemy; that the Secretary of the Treasury had embezzled public funds…”

The Verdict

The Supreme Court did not accept Nachman’s argument.  Its decision in New York Times Co. v. Sullivan (http://www.bc.edu/bc_org/avp/cas/comm/free_speech/nytvsullivan.html ) read in part:

“Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

….

“Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth–whether administered by judges, juries, or administrative officials–and especially one that puts the burden of proving truth on the speaker.”

With those words, the Supreme Court gave us the freedom not only to speak our minds without prior restraint (as is the case in the UK) but allowed us to make honest mistakes when we do so.  In the name of “robust and wide-open” public debate, we have the right to say that “the Secretary of the Treasury had embezzled public funds” without proof of any sort but also without fear of a lawsuit.  And while the decision did leave some room for an individual (say, the Secretary of the Treasury) to safeguard their reputation, that room was small indeed.

The Aftermath

Public debate in the United States is certainly robust.  It is also (as anyone following the recent Presidential election knows) not free of calumny of the worst kind.  The kind of libel that is a regular feature of our politics simply does not exist in the United Kingdom.

On the other hand, it is also not the case that American bloggers must fear a lawsuit because their posts are not true “in every respect”.  This has meant that there are more American bloggers than British ones and that not infrequently British political bloggers cite American sources with the (mandatory in the UK) “it is said” before the source.

I will let you decide which system is better—and what the ideal balance between a person’s reputation and a person’s freedom of speech ought to be.