Libel, Commercial Speech, and the Press

Under the common law of libel in most U.S. states after World War II, there was no necessity for a defamed person to prove that he or she had actually been harmed. If a statement reflected badly on an individual, it was "libelous per se," and the question of whether a statement had been made against an individual was exclusively for determination by a jury. It was unreviewable by an appellate court. The theory behind the common law was that "indiscriminate political defamation should not be allowed to wound the reputations of important public figures." ¹⁸ The law, in effect, protected the "best men," who, if not able to defend themselves easily from defamatory statements, would withdraw from public life and deny society a valuable resource. The

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Supreme Court had consistently refused to intervene in what was widely understood to be exclusively a state matter.

Amidst the uproar over the civil rights movement of the 1960s, however, the Court changed direction in momentous fashion, with implications for public figures and the press. New York Times v. Sullivan ( 1964) grew out of a full-page advertisement published in the New York Times by civil rights activists appealing for funds to secure the defense of Martin Luther King, Jr., in Alabama against charges of perjury. The advertisement charged that the police and city officials of Montgomery, Alabama had unleashed "an unprecedented wave of terror" against blacks engaged in nonviolent demonstrations. ¹⁹ L. B. Sullivan, a city commissioner, claimed that this and other statements, some of which were not true, had defamed him, even though he had not been mentioned by name. A jury agreed with Sullivan, ordering the Times to pay him $500,000. Such suits had become common tactics by white opponents of civil rights in the South, and by 1964 the newspaper had a total of $5 million in libel claims pending against it.

The case was reminiscent of the late 1790s, when the Federalists had invoked the idea of seditious libel in the Sedition Act of 1798. Simply accusing a public figure of wrongdoing was itself libelous under this old theory, which the common law had enshrined. The Court, however, overturned the old rule, bringing libel under the umbrella of the First Amendment. The Court held that public officials could recover for defamatory falsehoods about their official conduct or fitness for office only if they could prove that the defendant (in this case the New York Times) had published with "actual malice." ²⁰ This term was defined as "knowledge that [the statement] was false or with reckless disregard of whether it was false or not." ²¹ The Court proceeded not only to overturn the judgment against the Times, but also to find that based on the facts there could be no subsequent suit. In essence, the Court had put itself into the highly unusual position of passing on the facts and not just the law in the case. Even false statements, the Court found, could be socially useful. The decision effectively immunized the press from libel suits, and it may well have reflected an erosion of faith in public leaders.

The decision in New York Times v. Sullivan had another effect. It opened up the concept of commercial free speech. The Supreme Court had long held that commercial advertising was a matter of commerce and not speech. But in Sullivan the matter in question was advertising, and the Court had earlier brought movies and books, which were commercial ventures, under the protection of the First Amendment. The justices, as their decision in Sullivan indicated, were aware that the goals they were pursuing in matters of civil rights could be restrained by permitting the continued exclusion of commercial speech from First Amendment protection. The justices of the Burger Court, moreover, extended the doctrine. For example, in Bigelow v. Virginia ( 1974), the Court overturned a statute that regulated the advertising of abortion services. The justices did not give an absolutely free rein to any kind of commercial speech, but instead demanded that state governments prove that the need to regulate commercial speech was more important than the First Amendment right to speak. For example, the justices agreed in Metromedia Inc. v. San Diego ( 1981) that communities could restrict billboards for both aesthetic and traffic safety reasons.

The Court also reaffirmed that the First Amendment granted extensive protection to the press. The most important case of the postwar era was New York Times v. United States ( 1971), more commonly known as the Pentagon Papers case. It involved the

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publication by the New York Times and the Washington Post of illegal copies of a top- secret Pentagon report about the conduct of the war in Vietnam. President Nixon gained from a lower federal court an order directing the newspapers to halt publication. The Supreme Court, however, vacated the injunctions as a prior restraint on the press, something that the Court had declared impermissible four decades earlier in Near v. Minnesota. Chief Justice Burger and Justices John Marshall Harlan and Harry Blackmun ( 1970- ) dissented, claiming that the government had a legitimate right to suppress the publication of material harmful to the nation and that the executive authorities ought to be given latitude to determine such matters. The dissenters reiterated what the Court had repeatedly held with regard to the press: the First Amendment did not provide publishers an absolute right to publish anything they wanted. But the case, especially in the superheated atmosphere of the period, reaffirmed that government carried a very heavy burden of proof when it attempted to exercise prior restraint over the press. The Court, in the end, believed that it was better able to determine the national-security risks posed by publication of the materials than was the executive branch.

Date: 2015-01-29; view: 659