Freedom of Press in Light of New York Times v. Sullivan (1964)

By | September 1, 2021
Freedom of Press

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This article on ‘New York Times v. Sullivan’ is written by Nilanjana Banerjee and is concerning freedom of the press and aims at determining how free the press is in the United States, in the context of the New York Times v. Sullivan case.

I. Introduction

There are certain basic rights that every individual should have and those are bestowed by the state such as freedom of expression, freedom of speech, right to live, privacy etc. Freedom of expression includes within its ambit freedom of the press but this freedom is hard-earned freedom and the struggle is still on.

It is a general concept that no rights are absolute and there are certain reasonable restrictions on every right and hence exercising it beyond such boundaries may be called a criminal offence. Quite similar is the case with freedom of expression, which is inclusive of freedom of speech, religion, press, freedom to assemble peacefully, and lastly freedom to petition the government for grievances.

All of these aforementioned rights exist by virtue of the first amendment to the United States Constitution. Freedom of the press is considered to be very similar to freedom of speech and the only difference is that freedom of the press allows expressing the opinion through publication.

II. First Amendment and its significance

The first amendment to US Constitution says-

“Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”[1]

This amendment along with nine other amendments was adopted in 1791 which now makes up the Bill of Rights, i.e. a written document aiming to protect civil liberties. Since then the meaning and interpretation of the first amendment have been subjected to dispute and thus there is a long list of landmark Supreme Court cases that have given the interpretation in every context.

There is no ‘legal age’ which one has to reach to exercise the freedom granted by the 1st amendment as these are guaranteed the moment the baby is born. Moreover, there is no citizenship requirement for the 1st amendment, just by staying in America, one can own these rights.

Earlier these rights were restricted only to what the federal government does and did not bind the states in any way but in 1868, the 14th amendment to the US constitution was introduced and it then prohibited the states from denying freedom to people without any ‘due process’.

Now the 1st amendment applies to restrictions imposed by any government and not on any private body. Free expression is to only limited to political speech, but also to speeches on science, religion, social issues, art and culture etc. However, this right is equal to everyone, which implies there is not extra freedom guaranteed to the media business (beyond what non-professionals have).

Despite such wide scope of free expression, there are certain exceptions that are historically rooted. The government may restrict the time and place of free speech like a ban on the use of loudspeakers near hospitals or residential areas etc., the government can also impose checks on words or means signifying defamation, obscenity, pornography, imminent unlawful action.

Defamatory lies can be of two types, i.e. if written, then libel and when spoken, slander.

While talking about freedom of the press, it is generally assumed that the right is confined to newspapers and periodicals only but the court in the case of Lowell v. Griffin[2] held that it includes pamphlets, circulars and other sorts of the medium of information of public desk. This freedom of the press is vital because it functions as a watchdog.

III. New York Times v. Sullivan[3]

Facts of the case-

In 1960, when Civil Rights Movement was gaining strength, the leaders published a full-page advertisement to raise funds to help several readers including Martin Luther King. The ad heading described the event as ‘an unprecedented wave of terror’ of police forces against the civil rights activist. The description of the event in the newspaper was not exactly what had happened, there were slight alterations like, it had criticised the Alabama police force for its treatment of the protestors. The ad said that the college campus of the protestors was ringed by the police but in reality, the incident was not so exaggerated.

L.B. Sullivan was one of the officers in charge at that time. He took offence to the ad and sued the newspaper New York Times. As per him, the newspaper publication had damaged their reputation and it was even contended as libel. The newspaper ad had not mentioned Sullivan’s name in person but as he was in responsibility, he assumed offence and sued.

In Alabama court, Sullivan won and the newspaper agency had to pay damages. The matter then went to the US Supreme Court, where the newspaper agency argued that they had no intention of harming Sullivan’s reputation and that they did not check the accuracy of every incident in the news. Moreover, they argued that if they had to check the accuracy of every criticism, ‘free press’ would be valued less.

US Supreme Court ruled unanimously in favour of the newspaper New York Times and said that in order to prove the offence of libel, a public official needs to show that the newspaper, periodical or magazine acted in ‘actual malice’ i.e. the publisher had knowledge about the news being false.

Justice William J. Brennan Jr. said that ‘debate on public issues should be uninhibited, robust and wide open’.

Moreover, the court laid it clearly that without proof of convincing clarity of ‘actual malice’ no conviction should be done. The court intended this to be of a much higher standard so that public officials will have a hard time proving it. It even established the principle of de novo review which means that from now onwards Supreme Court will itself determine how legal principles will be applied.

Prior to the Sullivan case, libel was entirely state matter and the basis for conviction differed widely. But subsequently, its contours got determined by the 1st amendment.

In 1883, New York Times columnist Anthony Lewis wrote that ‘it is not the judgement that worries the publishers, rather it is a monetary cost, time and psychological burden which they face’.

IV. Significance of the case

Prior to the decision of New York v. Sullivan, it was assumed that Constitution does not provide protection to defamatory statements under the 1st Amendment. When the proceedings for the Sullivan case was going on, other press outlets along with New York Times faced a liability of around $300 million, had the decision been otherwise, these press outlets would have become bankrupt.

The court granted Constitutional protection to the press and even put forth the actual malice test. It is a significant case because it has protected the right of the press and even the public’s right to criticise the officials or protest against them. When Sullivan case was decided, it was hailed as ‘an occasion for dancing on the street’. Justice Thomas said that the New York Times is a policy-driven decision that masquerades as constitutional law. The decision has been considered a revolutionary one.

V. Post – Sullivan cases

The Sullivan case laid down a new path for the press and the citizens, still some issues were born and a few of them are discussed.

1. Associated Press v. Walker[4]

This case arose out of the circulation of news reports in which the eyewitness gives an account of a riot at the University of Mississippi. In that, it was said that Walker, who was retired military personnel led the crowd against Marshals. It was also contended that he ignited the violence. The issue here arose that whether the public officials have to prove ‘actual malice’ in their case of alleged defamation.

The Supreme Court held that public figures will be the same as public officials within 14th Amendment and they will have to prove the actual malice test. As per this test, the plaintiffs have to prove that the controversial publication was published even after knowing that the information it contained was false. Moreover, the Supreme Court established a guideline to determine the presence of actual malice.

2. Ashton v. Kentucky[5]

In this case, the petition was charged with criminal libel, as he had published a false and malicious publication that injured the reputation. The trial court had defined criminal libel as ‘any writing calculation to create disturbances of the peace, corrupt the public morals or lead to any act which when done, is indictable’ and then convicted the petitioner.

The Kentucky court of appeals affirmed the conviction. The Supreme Court then held that criminal libel laws generally violate the 1st amendment and allow the prosecutor to sue the malicious statements with great ease.

In this way, whenever cases arise as defamation and violation of the 1st Amendment, courts have shown great zeal in protecting the freedom of the press.


[1] U.S. CONST. Amend I.

[2] 303 U.S. 444 (1938)

[3] 376 U.S. 254 (1964)

[4] 389 U.S. 28 (1967)

[5] 384 U.S. 195 (1966)

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Author: Nilanjana Banerjee

National University of Study and Research in Law Ranchi

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