19:57 Run Time | September 26, 2023
Most Americans take free speech for granted. In her new book, “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan,” legal historian Samantha Barbas illustrates precisely why we shouldn’t. In this episode of Driven to Discover, host Laura Silverman talks to Barbas, a professor of law at the University at Buffalo and an expert in the intersections of law, culture and the media, about the landmark 1964 case that liberated the press and transformed free speech in America. Barbas paints a compelling portrait of how dire things had become for journalists (and, relatedly, the Civil Rights Movement) before Sullivan, and predicts a similarly dire future for the media and even for everyday citizens speaking their minds on social media if the decision were ever to be reversed—a not inconceivable outcome with our current Supreme Court.
Laura Silverman: Samantha Barbas always knew what she wanted to be when she grew up: a journalist.
Samantha Barbas: I would play newspaper editor while others played house.
Laura Silverman: She was the editor of her high school newspaper and then her college newspaper. Her future as a journalist was, in her words, “a done deal.” But somewhere along the way, she realized she was more attracted to journalism as a subject than as a career. She got a PhD in cultural history and became a professor. Then she became intrigued by legal issues around the media. So she went to law school.
Today, as a professor of law at the University at Buffalo, Barbas is a leading authority on the intersections between media, culture and the law. Her newest book, “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan,” has been called riveting, compelling, timely and, in The New Yorker, a heroic narrative.
Welcome to Driven to Discover, a University at Buffalo podcast that explores what inspires today's innovators. My name is Laura Silverman, and I will be your host for Episode 2: Free Speech and the Supreme Court.
Dr. Barbas, take us back to your childhood. What compelled you to play newspaper editor while others were playing house?
Samantha Barbas: Well, I grew up in the 1970s, and that was a time when I think journalists were regarded very highly in our society. Journalists had broken the Watergate scandal, and really they were seen as heroes to many. So that really influenced the way that I saw journalists and the work that they did. They researched stories, they tracked down the facts, and then they took that information and made it accessible to the public in a meaningful and coherent way. I thought that was a really important activity and something that I wanted to spend my life doing.
Laura Silverman: So over time you became interested in academia, though still with a focus on journalism.
Samantha Barbas: Yeah. So I went to graduate school in the history department at the University of California Berkeley, and I pursued cultural history and media history, focused on journalism, and my early scholarship was on celebrity journalism. I looked particularly at the evolution of the gossip column as a popular genre. My second book was on a gossip columnist named Louella Parsons, who was very influential in the early to mid-20th century, really created American celebrity culture through her writing. And that got me interested in the law, and I wanted to know, how can journalists like Parsons get away with that kind of work without being sued out of existence. So that question took me to Stanford Law School, and I got a JD and investigated a lot of these questions about publishing law, libel, privacy.
Laura Silverman: These days you focus a lot on mass media, freedom of speech. What is compelling you to dig into those stories in particular?
Samantha Barbas: One of the reasons I'm interested in that topic is because there are so many current debates about freedom of speech. There are some who have said that freedom of speech is on the decline and that we're seeing a new wave of censorship. There are others who say that freedom of speech has gone too far, that we might be better as a society and a democracy if we had less access to information or if certain kinds of harmful speech were limited. So I think that a historical perspective is very useful to thinking about some of these questions. What would it be like if we were to go back to conditions as they existed 50 or 100 years ago when Americans had less free speech than they do today?
Laura Silverman: Yeah. So that brings us to your book, “Actual Malice,” about the '64 case New York Times v. Sullivan, widely considered a landmark ruling and really made the difference between the way things were and the way things are today. Can you tell us about that case and why it was so important?
Samantha Barbas: Yeah. New York Times v. Sullivan was a case about libel. So libel law is a very old form of law that permits people who claim that they've been defamed, that their reputations have been injured, to sue the defamers and recover a monetary damage award. That law was very strict. So a public official who was angry at a newspaper and wanted to get back at it could potentially sue for libel and get a substantial damage award.
So this libel law was weaponized in a sense by segregationists in the South who wanted to take down the Civil Rights Movement, and they wanted to take down newspapers like the New York Times that were covering the Civil Rights Movement sympathetically. So these segregationists brought high-value libel suits against the Southern Christian Leadership Conference, which was Martin Luther King's civil rights organization, and against the New York Times and several other media outlets, and they were winning. These newspapers were taking their reporters out of the South because they were afraid of incurring more libel liability.
So this went up to the Supreme Court, and in 1964 the Supreme Court issued a landmark ruling saying that public officials who sue for libel have got to show that the speaker made the statement with reckless disregard of the truth, and the term the court used was “actual malice.” Effectively what this did was to give broad protections for speakers, including the press, in libel law, and really opened up public discourse and press reporting, and transformed freedom of speech in this country.
Laura Silverman: So tell us about Sullivan and Sullivan v. New York Times. What was that actual case that led to this landmark decision?
Samantha Barbas: Yeah, so it's a really interesting and unusual story. The sit-in protests were spreading throughout the South in early 1960, and a group of sit-in protestors went to Montgomery, Alabama, and those protesters were attacked by mobs. L.B. Sullivan was a police commissioner of Montgomery, and he basically permitted these mobs to attack the civil rights activists and provided them no protection.
So a civil rights group in New York called the Committee to Defend Martin Luther King and the Struggle for Freedom in the South published an advertisement in the New York Times describing various acts of brutality that were committed by Southern officials against civil rights protesters. And this advertisement mentioned what had happened in Montgomery. It didn't mention Sullivan by name, but it talked about the police in Montgomery being violent, essentially, against the civil rights activists.
It turned out that there were a few factual errors in this advertisement that didn't really affect the overall meaning of the ad, which was to state that these officials were brutal and violent. Nevertheless, these errors gave Sullivan and some other Montgomery officials kind of an opportunity to sue for libel. So they sued the New York Times, which published the ad, and four civil rights leaders whose names had been put on the ad as endorsers.
So this lawsuit goes up through the Alabama courts. Sullivan wins $500,000 in the trial court. This is upheld on appeal by the Alabama Supreme Court, and the New York Times and the four civil rights leaders appeal that to the U.S. Supreme Court, leading to the landmark ruling.
Laura Silverman: Right, okay. And in the interim, there were other lawsuits, correct, to the point where the New York Times was facing $7 million in libel?
Samantha Barbas: That's right.
Laura Silverman: Yeah.
Samantha Barbas: Yeah. So these segregationists had hit upon a wonderful way to shut down the New York Times, which they despised for its civil rights coverage.
So there were lawsuits, several, brought over this advertisement by various Montgomery officials, and there was another series of lawsuits that grew out of reporting, actual news reporting, in Birmingham that was critical of the officials in that city. So by 1963, the Times was facing $7 million in potential libel judgments and made the decision to stop reporting on civil rights, thought it was too risky. They took the reporters out of Alabama. And if those judgments … if the Supreme Court hadn't reversed and announced the actual malice rule, the Times might've been bankrupted, if it had to pay those awards.
Laura Silverman: The book is doing great, a lot of wonderful critical reviews. I'm about halfway through, full disclosure, I haven't finished it. But it reads like a novel. I mean, I can even picture it as a movie. Was there anything while you were researching that really struck you in terms of the characters or things that happened?
Samantha Barbas: Yeah, I mean, it was really amazing to see the extent of the threat that these libel suits posed to the New York Times and to the entire Northern press and to the Civil Rights Movement. By 1963, the Northern media were facing something like $300 million in potential libel judgments in these cases brought by these officials that were, again, really sort of phony and were being used to shut down the press. So that was really astonishing to me.
There were a number of really colorful characters in the story. One very interesting character was Judge Walter Burgwyn Jones. He presided over Sullivan's libel trial in the Montgomery court, and Jones was 72 years old. He was a really sort of die-hard segregationist, known to be the most ardent segregationist on the Alabama bench. And he permitted the jurors to sit in the courtroom with their Confederate uniforms on, and in his spare time, Judge Jones wrote odes to the Confederacy and Confederate-themed fiction. So it was impossible for the Times and the ministers to get a fair trial in that setting.
Laura Silverman: Yeah. Well, in addition to it being a great read, the book is also getting a lot of attention because of things that are going on in this country now, that really bring Sullivan to the fore again. Can you tell us what is happening there?
Samantha Barbas: Yeah, so New York Times v. Sullivan was always a somewhat controversial decision, but that controversy really escalated about six or seven years ago when Donald Trump made a famous statement that he was going to "open up libel law” and make it easier for him and his other conservative allies to sue their enemies in what they call the liberal press and recover damage awards. And of course, the president is not able to change libel law, which is a constitutional matter for the Supreme Court.
Nevertheless, this kind of launched open season on Sullivan, and there were many conservative pundits and critics who wrote articles criticizing Sullivan. And two Supreme Court justices also expressed their views against New York Times v. Sullivan, saying that it didn't protect reputation enough and that the decision should be overruled. Interestingly, Governor Ron DeSantis of Florida, back in February, initiated legislation in that state that would have rolled back some of the protections of Sullivan. I think ultimately that legislation went nowhere, but there have been these increasing calls to have the court overrule Sullivan or reconsider it or modify the doctrine, and, um, it’s something that may happen in the future.
Laura Silverman: And you said that it was a controversial decision from the start, so apparently some of this criticism is valid. Can you talk to some of the critique of Sullivan that may be worth looking at again? In your view.
Samantha Barbas: So I think, kind of the one theme that runs through all the criticism of Sullivan is that the decision just doesn't give, um, it doesn't allow libel law to protect reputation very well. Again, this actual malice standard presents a really challenging burden for libel plaintiffs to meet. And since 1964, the Supreme Court has extended the Sullivan actual malice rule beyond public officials to libel cases involving public figures, which the court has defined very broadly.
So many Americans, then, do not have robust protection for their reputations. And some say that that is bad, not only for individuals, but for society. That it's very hard to have civil discourse in America where people are attacking each other relentlessly and people aren't able to defend their good names.
This criticism has intensified in part because of the advent of the internet and social media and the way that they have transformed public discourse. Reputations have become very fragile today. It's very easy to have your reputation tarnished online, and that damage can be permanent in some cases.
Laura Silverman: What is the answer to that?
Samantha Barbas: It's a very difficult question. I think that very few today would support completely overruling Sullivan. I think even on the Supreme Court, I think there's only one justice who would advocate that Sullivan be eliminated entirely.
Laura Silverman: Would that be Clarence Thomas?
Samantha Barbas: That would be Clarence Thomas, right. But as I mentioned, the Sullivan doctrine was extended beyond public officials to public figures, and the way the court has defined a public figure is someone who gets involved in a public controversy. So literally today, if you were commenting on social media on a public issue, you could be considered a public figure because you put yourself into a controversy, and then you have to show actual malice in a libel suit.
So there are some who have talked about limiting the definition of public figure. Maybe public figures should be limited to those who are true celebrities, who are making a living out of being in the public sphere. Not the ordinary private citizen who happens to post something on Twitter or go out in the public square and get involved in a demonstration or protest.
Laura Silverman: Let us go to the place in our imagination where it actually does get overturned. You say that only Clarence Thomas has said that he would do that, but of course, there was a time where we couldn't imagine Roe v. Wade being overturned, and it was. I know that Sarah Palin had a case against the New York Times, a defamation case. She lost. She is appealing, right, in hopes that it get up to the Supreme Court. So there is that threat out there. How do you see things playing out if it happens and it is completely overturned?
Samantha Barbas: Yeah, I think you're right that there are many out there who are trying to get a case before the Supreme Court that would invite it to reconsider Sullivan. Now, if that were to happen and Sullivan were to be overruled, it would be a sea change. It would transform the workings of the press. I think it would transform our public discourse in America. It would make it much more difficult for news organizations to report on public officials and public affairs more generally. I think we, as citizens, would not get as much information from the media as we do, if we don't have news organizations monitoring public officials and reporting on their conduct and reporting on corruption. That, you know, could have some very harmful consequences for democracy.
I think a change in the Sullivan doctrine would also affect the things that we can talk about in our everyday lives. I mean, Sullivan protects journalists, but it also protects all of us as speakers, and we may be inhibited in the conversations that we have if libel law goes back to what it was in 1960 when these Alabama cases were brought.
Laura Silverman: That's a scary thought.
Samantha Barbas: It is.
Laura Silverman: More positive news: What is next for you?
Samantha Barbas: So I'm continuing my exploration of the history of free speech, and one topic I’m currently writing a book on is hate speech. And this question of why the United States does not have the sort of hate speech laws that exist in other countries. Hate speech is a protected form of speech under the First Amendment, and that is truly exceptional in the world.
That's obviously an issue that's kind of risen to the fore, again, with the internet and the spread of misinformation and hateful expression that we're seeing. So I thought that digging into that history and kind of explaining why the U.S. took its unique path, and whether that's a path that we should maintain, would be a good subject for a book.
Laura Silverman: Yeah, I'm really looking forward to that one. Well, thank you so much Dr. Barbas. This has been a great conversation.
Samantha Barbas: Thank you.