There’s a case to be made against the Supreme Court’s landmark 1964 decision in New York Times v. Sullivan, and Carson Holloway makes it. Sullivan, despite a bit of handwaving in the majority opinion, represented a drastic departure from previous law, one without any particular warrant in the Constitution. It was, in effect, a subsidy to the mass media, allowing them to publish more provocatively and with less care. The subsidy came at the expense of the people they defamed, and the readers and viewers who wound up with less trustworthy media.

　　But despite the analogy Holloway draws with the way Dobbs overturned Roe v. Wade, I don’t think the Court is likely to overturn Sullivan outright. Despite a few justices, most notably Clarence Thomas, having expressed the view that Sullivan, and its “actual malice” rule, are without foundation, nothing has happened to convince me that there are five votes to throw Sullivan on the ash heap of history. As the author of Sullivan, Justice William J. Brennan, famously said, with five votes you can do anything at the Supreme Court. Likewise, without five votes, you can’t do anything.

　　And yet, it’s possible to undo a Supreme Court decision without officially overturning it. In fact, that approach has been popular with this Court. There’s ample room to do that in this context without taking the heat the Court would take for overruling the opinion outright, and I think that’s far more likely. I’ll get to the how in a bit, but first, let’s revisit what happened.

　　This history is spelled out in Samantha Barbas’ excellent recent book, Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan. 

　　One of the things that Barbas makes clear is what a loser the case was for the Times under existing law. The paper published an advertisement, titled “Heed Their Rising Voices,” designed to raise money for civil rights leader Martin Luther King and civil rights efforts in the South. The advertisement, drafted by Bayard Rustin, contained a narrative of events that took place in Montgomery and Birmingham involving police, government entities, and protesters. As Barbas writes:

　　The ad was emotional and compelling, as Rustin intended. Unfortunately, it was filled with errors. In their zeal to dramatize the events and to publish the ad in a hurry, Rustin and Murray had, intentionally or unintentionally, taken liberties with the facts. There were mistakes about the events in Montgomery contained in the ad’s third and sixth paragraphs. Some were minor, and some more significant. … Although the police did appear on the Alabama State campus, it wasn’t in connection with the protest at the capitol. The most serious statement was the statement about authorities padlocking the dining hall. The dining hall wasn’t padlocked, and officials never attempted to “starve” the students “into submission.”

　　Ordinarily, the Times’ Advertising Acceptability Department would have fact-checked the ad, but the many illustrious signatories overwhelmed its skepticism:

　　The head of Advertising Acceptability, a fifty-year-old former journalist named D. Vincent Redding, looked over the “Heed Their Rising Voices” ad. Like Aronson, he was impressed with the high-profile signatories and the [accompanying] letter from A. Philip Randolph. He was so impressed that he never attempted to fact-check the ad, which would have been easy, as the Times published sixteen news stories on the events in Montgomery. Copies of these articles were contained in files in the newspaper’s library or “morgue,” which was one flight upstairs from the Advertising Acceptability Department. This careless treatment of the committee’s ad violated the Times’ well-established advertising policy.

　　A few days after the ad was submitted, but before it was set in type, Rustin decided to add the names of some black ministers in Alabama. Rustin felt sure they’d agree to have their names on the ad, but there wasn’t time to check with them before the final ad copy was sent from the ad agency to the Times.

　　The ad appeared on Tuesday, March 29, 1960, on page 25, with the factual errors and unapproved names. Contributions poured in.

　　It took a while for people to notice, because only 394 copies of the Times were sent to the entire state of Alabama. Among the recipients, however, were the Montgomery newspapers, and one of them, the Montgomery Advertiser, published an article pointing out the factual errors in the advertisement. It soon occurred to many important political figures in Alabama that this ad, filled with factual errors (though as Barbas notes, in “overall gist” it was basically true) offered an opportunity to strike back at the New York Times, a major thorn in the sides of the segregationists.

　　The correlation of forces was such that segregation had lots of political support in the South at the state and local levels. But the national political organs, which had grudgingly gone along with segregation when its realities were less plain (and when Southern votes were essential to Democrats’ national ambitions), were now turning against it, and the news media were leading the charge. Even in 1960, support for ending segregation was shaky even in many non-Southern states, but it was growing ever stronger in response to extensive coverage by national media, particularly the Times, which had expanded its coverage in the South.

　　Traditionally, libel was purely a matter between two individuals, a sort of litigation-substitute for dueling, to the point that libel suits were expressly promoted as a substitute for the field of honor.

　　Southern politicians felt they were playing on hostile turf in the national media, but a libel suit would move the action to their own turf, where local judges and local juries, not New York media, would call the shots.

　　Under the libel law of the time, which was roughly the same in every state, including Alabama, a publisher of false and “defamatory” statements was subject to a judgment for libel unless the publisher could show that the statement was true in every respect. Showing that the overall gist was true despite the presence of actual factual errors wasn’t enough. Montgomery Public Affairs Commissioner L. B. Sullivan, who oversaw the police, claimed libel and had little difficulty in persuading a jury that even though he wasn’t named personally, the references to police misconduct reflected badly on him. Since some of them were false, the Times couldn’t (and didn’t) plead truth as a defense. The jury awarded him—for the time—a whopping $500,000. (The black ministers were named jointly and severally liable with the NYT, despite their claims that they hadn’t authorized the use of their names). A second claim, brought by Montgomery Mayor Earl James, produced another half-million-dollar judgment.

　　There were things to argue about here even under existing law: Could public officials be libeled simply by factually incorrect criticisms of the departments they managed? Were their reputations actually harmed, given that most voters in their communities supported their efforts against civil rights protesters? But those were debatable, and could reasonably be answered both ways, and the “overall gist” of the verdicts was very much in accordance with settled law.

　　The case of course wound up before the Supreme Court, with Sullivan’s lawyer, Harvard-educated Roland Nachman, saying that the only way for him to lose was for the Court to change the law.

　　And that’s just what it did.

　　It’s worth noting that the Alabama cases weren’t the only ones. They were part of a coordinated campaign of libel litigation against national media in several states that was meant to intimidate. The goal was to discourage intense and hard-hitting (and as segregationist politicians no doubt saw it, one-sided) coverage in the national press. And for a time it was quite successful. The Times quit sending reporters into Alabama, and other news organizations stepped lightly, lest they be named next.

　　The $500,000 judgments would be chump change to the NYT today, even adjusted for inflation (the online Inflation Calculator shows $500,000 in 1960 as amounting to $5,326,030.41 today). But the Times was poorer then, and in the middle of a financial crisis and an expensive confrontation with the printer’s union. There was reason for worry that if these lawsuits succeeded, the proliferation of copycat suits would either bring the Times down financially or completely neuter its coverage. And other organs would not be immune.

　　In response, the Supreme Court did exactly what Nachman feared: It changed the law. Deciding that the libel law of the past 150+ years offered too much power over national media to local officials (and juries), the Court established a new rule: Where a public official claimed libel, he/she would have to show that the publisher acted with “actual malice,” meaning knowledge of falsity, or a “reckless disregard” as to whether the report was true or not. The “actual malice” standard was an entirely new invention of the Court, and wasn’t even argued by any of the parties. Brennan chose that standard because he knew the Times would lose on a negligence standard, since it had in fact been negligent. Brennan tried to make the actual malice standard sound like the rule that already obtained in a few states, but as Barbas notes, “Brennan was creating a new standard, but he went out of his way to make it seem as if the standard was already accepted in several states.”

　　At one level, this extension—or alteration—of First Amendment doctrine to fit a new situation of coordinated action by government officials makes some sense. Traditionally, libel was seen as unprotected by the First Amendment. But traditionally, libel was purely a matter between two individuals, a sort of (more than sort of, actually) litigation-substitute for dueling, to the point that libel suits were expressly promoted as a substitute for the field of honor.

　　The Supreme Court could overturn or limit St. Amant, Gertz, Iqbal/Twombly, et al., and drastically reduce the impact of New York Times v. Sullivan without overturning that famous decision.

　　But when government officials come together to use government institutions against private entities, it looks less like a duel and more like war. So it’s plausible that in this special circumstance, the First Amendment might reach farther than it has historically reached in libel cases.

　　This provides a useful and compelling defense of the Sullivan decision, and a plausible reading of it as well. The only problem is that it’s not what actually happened.

　　As Barbas notes, the majority openly sided with the Times, and the other defendants. (Before oral arguments began, “from the bench, Arthur Goldberg, dispensing with any illusion of impartiality,” sent down his copy of Stride Toward Freedom to co-defendant Martin Luther King with a note asking for an autograph.) Barbas also notes that “concern for the civil rights movement was the primary reason” the Court decided to hear the case, because it threatened to “undermine the critical work of the media in furthering the civil rights movement.” (Even Nachman and the Times’ lawyer, law professor Herbert Wechsler, chatting in the Supreme Court building afterward, were both stunned by Brennan’s development of the actual malice standard, and agreed that Brennan had just “run away with the decision.”) But they didn’t yet appreciate just how far he had run.

　　Further decisions made clear that the Court wasn’t just interested in limiting the ability of public officials, through sympathetic juries and “home cooking” litigation, to influence out-of-state media. Sullivan’s legacy quickly became one of generalized protection for the institutional press against, basically, anyone who might call it to account for false and defamatory content. In very short order, the “public official” standard, which is manageably limited to government officials, became the elastic “public figure” standard, which means whatever judges want it to mean.

　　Later cases strengthened the media’s position even more: In the St. Amant case, the Court interpreted the “reckless disregard” part of actual malice to only involve publications choosing to publish anyway when they entertained serious doubts about the accuracy of the material—there was no duty to investigate even outlandish charges so long as there was no subjective doubt. Proving the subjective doubt became much more difficult as the Iqbal and Twombly cases held that charges of malice must be “plausibly” pleaded before any discovery—which would yield information demonstrating the existence of such doubts—could even commence.

　　The end result is a situation where—as in McKee v. Cosby—the fact of having accused a famous person of rape rendered Ms. McKee a “public figure,” which meant that her defamation suit against Bill Cosby was doomed to fail. It was this case that led Justice Clarence Thomas to file a separate opinion calling for Sullivan to be overturned. (Even left-leaning law professor Cass Sunstein, normally no fan of Thomas’s jurisprudence, commented, “It is hardly obvious that the First Amendment forbids rape victims from seeking some kind of redress from people who defame them.”)

　　Overturning Sullivan would be huge and controversial. When Thomas suggested it, he was accused of wanting to “crush the free press,” of impeding “the public’s right to know,” and even of declaring war on “the very idea of a free press.” These criticisms were basically nonsense, unless one believes that prior to 1964, when Sullivan was decided, the United States lacked a free press. But are there five justices willing to endure them?

　　Fortunately, it doesn’t matter. The Sullivan ruling, limited to public officials rather than public figures and allowing for a milder version of “actual malice” and more open discovery, isn’t the source of most of the excessive protections media defendants get in libel cases today. The Supreme Court could overturn or limit St. Amant, Gertz, Iqbal/Twombly, et al., and drastically reduce the impact of New York Times v. Sullivan without overturning that famous decision. And nobody but media lawyers would get upset.

　　I’m guessing there may be five justices in favor of doing that, particularly as several members of the current Court have experienced press unfairness and dishonesty on a personal level during their confirmation hearings. Justice William J. Brennan and the Sullivan Court might have entertained an overly rosy view of journalists and journalism. I suspect more recent members of the Court do not.

　　And given that even major publishers, like Jeff Bezos, owner of the Washington Post, have upbraided their staff for excessive political bias, the media resistance to such a change would likely be weaker, and less effective, than at any time in living memory. That, too, is something the justices are likely aware of.