New York Times v. Sullivan and the Forgotten Session of the US Supreme Court

A forgotten session of the US Supreme Court shows a Chief Justice at odds with conservative calls to overrule a landmark precedent.

New York Times v. Sullivan, the US Supreme Court’s defining First Amendment opinion of the twentieth century, is under constant attack. Once viewed as occupying the same rarified air as Brown v. Board of Education, Sullivan has become the target of the conservative political and legal establishment that wants it overruled.

A recent but largely forgotten special session of the Supreme Court held in May 1998, however, reveals a conservative defense of Sullivan. It reveals that, towards the end of his career, the longtime critic of Sullivan, Chief Justice William Rehnquist, defended Sullivan and its democracy-enriching effects.

As the Court has repeatedly rescheduled considering whether to take a new case again seeking to overrule Sullivan and two conservative justices have called for it to be overruled, Rehnquist’s lost comments — unnoticed in the popular press or academia — are more important than ever.

New York Times v. Sullivan

In Sullivan, L.B. Sullivan, a commissioner in Montgomery, Alabama, sued The New York Times for libel after it published a full-page advertisement from the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. That ad was critical of Montgomery police and their “unprecedented wave of terror” against civil rights protestors.

For The Times, it was bet-the-company litigation. Although the advertisement never named Sullivan and just 390 copies of the newspaper were delivered in Alabama, an all-white jury awarded Sullivan $500,000. There was more to come too. Four other commissioners had also sued The Times, one had already been awarded $500,000, and the others were seeking a total of $2 million in damages.

Sullivan also targeted four black ministers, Ralph David Abernathy, S.S. Seay Sr., Fred L. Shuttlesworth, and J.E. Lowery, whose names appeared on the advertisement without their permission. He secured verdicts against them too, and Alabama officials confiscated their cars, their homes, and their bank accounts.

But in the end, Sullivan’s real target was political change and the civil rights movement. Sullivan’s position was clear: he had previously warned that if “the Negroes persist in flaunting their arrogance and defiance by congregating . . . the police will have no alternative but to take whatever action that might be necessary to disperse them.”

In 1964, the US Supreme Court, in an unanimous opinion authored by Justice William Brennan, sided with the defendants and overturned the verdicts. Invoking the importance of “the right of freely examining public characters and measures,” the Court established for the first time that a public official suing for libel must carry a heavier burden than other plaintiffs.

Unlike private individuals, under Sullivan, public officials must prove that the defendant made the libel knowing that it was false or with a high degree of awareness of probable falsity. The Court called this daunting requirement the “actual malice” rule. In short, to protect the free speech and press necessary for democracy to survive, the Court insulated from liability honestly mistaken statements — even were those statements libelous.

True enough, this speech-protective rule meant that even some false speech that damaged public officials’ reputations would go uncompensated. But, as the Court put it, “erroneous statement is inevitable in free debate” so mistakes “must be protected if the freedoms of expression are to have the breathing space that they need to survive.”

The Aftermath and the Attacks

New York Times v. Sullivan has become such an important case then — a integral thread of the fabric of the United States even — because it declared to the world our “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.”

In the years since the Court decided Sullivan, however, conservatives, irked at what they view as bias in the “mainstream media,” have soured on it. In 2018, President Donald J. Trump Sr. (R-Florida), himself a defamation litigant, renewed a promise to take “a strong look at our country’s libel laws,” which he said did “not represent American values or American fairness.”

The late Justice Antonin Scalia had long been critical of Sullivan too. In a 2005 off-the-record conversation with members of the media, he said of Sullivan: “I don’t think that’s what the founding fathers intended.”

And, in 2011, he’d say publicly that in Sullivan the Court “thought in modern society, it’d be a good idea if the press could say a lot of stuff about public figures without having to worry.” A year later, Scalia would say he “abhorred” Sullivan.

Still, Sullivan seemed safe, even as recently as 2014 when it celebrated its fiftieth birthday. There were no calls in the record of the US Supreme Court that it be overturned. The Supreme Court kept rebuffing invitations to revisit it too. But that was a different time — a more staid time in American politics — and a different Court — a much less conservative one.

Justice Clarence Thomas, has capitalized on these changing times to be the first justice to call for the overruling of Sullivan. In 2018, he called Sullivan a “policy-driven decision masquerading as constitutional law.”

In 2021, he doubled down, writing in another libel case that the Court should stop using Sullivan to “insulate those who perpetuate lies.” (Sullivan does not insulate lies, i.e., knowing falsehoods.)

Worse, Justice Neil Gorsuch joined him in that latter case. Gorsuch, as Thomas had before him, wrote that Sullivan departed from “the Constitution’s original public meaning” and questioned “how well Sullivan . . . served its intended goals in today’s changed world.” With Gorsuch, Thomas needs just two more justices to put a case challenging Sullivan before the Court, and just one more to overrule it.

Others are piling on. Judge Laurence Silberman, a Reagan appointee who sits on the U.S. Court of Appeals for the D.C. Circuit, took his cue from Thomas, writing in a recent case that Sullivan “has no relation to the text, history, or structure of the Constitution.” (In fact, Sullivan does have plenty of historical support.) And he attacked Sullivan in strikingly partisan terms for protecting The New York Times and The Washington Post, which he called “virtually Democratic Party broadsheets.”

Conservative politicians are testing the fences as well. Devin Nunes has gained infamy for repeatedly suing critics for libel for even the most milquetoast of criticism. Sarah Palin launched a highly public attack on The New York Times when it published an allegedly defamatory editorial. There, she asked the lower court judge not to apply Sullivan; the judge declined.

Within the last several weeks, the US Supreme Court has repeatedly rescheduled consideration of whether to review a new case, Coral Ridge Ministries v. SPLC, which again asks the Court to overrule Sullivan. The reason for the delay is unclear. Yet, it seems likely that someone — maybe another doubter of Sullivan — is writing another opinion about the case.

The Forgotten Session

Before the Court’s conservatives go down the path of further questioning Sullivan though, they should stop and consider what one of the most influential conservative justices of the twentieth century said about the case.

In a forgotten special session of the Court, Chief Justice William Rehnquist eulogized Sullivan’s author, Brennan, and, in doing so, defended Brennan’s most important decision, Sullivan.

When the Court convened on a comfortable Spring day on May 22, 1998, it had been seven years since it last decided a defamation case. That day though, it sat not to render a judgment on a case but instead on Brennan.

There was one motion before the Court: whether to adopt resolutions unanimously approved by the Bar of the Supreme Court commemorating Brennan. There were two advocates: Solicitor General Seth Waxman and Attorney General Janet Reno.

Waxman argued first. Brennan, he said, was the “embodiment of the American dream.” Born to “penniless” Irish parents, he grew up in a rough-and-tumble neighborhood in Newark, New Jersey. He eventually attended the University of Pennsylvania, went on to Harvard Law, and then “joined the most prestigious law firm in Newark.”

After the war and a stint in private practice, he became a trial court judge. He then became an intermediate appellate judge and a judge on the New Jersey Supreme Court. In 1956, after being nominated by President Dwight D. Eisenhower (R-Kansas), Brennan became an Associate Justice on the U.S. Supreme Court where he would stay for thirty-four years.

According to Waxman, “Because he believed that the essence of American democracy is its commitment to respect the equal, innate dignity of every human being, Justice Brennan dedicated his judicial career to building a legal system that reinforces true democracy by preserving its indispensable building blocks, individuals living in freedom, mutual toleration, and respect.”

He did so through his work: authoring for the U.S. Supreme Court 533 opinions, 694 dissents, and 346 concurrences. Several of those, Waxman pointed out, articulated “our modern conception of free speech.”

One was New York Times v. Sullivan. Sullivan was emblematic of the man who wrote it and his “passionate effort to read the Bill of Rights in defense of the innate dignity of the individual, not as an alienated island but as a participant in a democracy of equals.”

Brennan read the “Bill of Rights in defense of the innate dignity of the individual, not as an alienated island but as a participant in a democracy of equals”

Reno then rose: “Mr. Chief Justice and may it please the Court.” Despite the hundreds of opinions to choose from, she too turned to Sullivan. That case, she said, was “one of the leading free speech cases of this century” and it “articulated the fundamental principle of the opinion, and one of the foundations of this Court’s First Amendment jurisprudence.”

Sullivan was not just a libel case. Instead, Reno said that it was “a characteristic example of Justice Brennan’s recognition that the provisions of the Bill of Rights and the Civil War amendments embody core values and principles that remain valid even where their vindication requires significant alteration in hitherto accepted principles of State law.”

In the end, Reno concluded after recounting Brennan’s other impacts, Brennan’s “vision of the Constitution as embodying a fundamental charter of human liberty will endure and will continue to be reflected in this Court’s jurisprudence.”

Reno then requested that the resolutions “be accepted by the Court, and that they, together with the chronicle of these proceedings, be ordered kept for all time in the records of this Court.”

Rehnquist’s Discussion of Sullivan

Rehnquist thanked Waxman and Reno and found: “Your motion that [the Resolutions] be made part of the permanent record of the Court is hereby granted.”

While Brennan was among the longest-serving justices on the Court, Rehnquist said that one had to look to “the 1,000-plus opinions he authored during his long career, many of them landmark decisions by this Court” — including the hundreds that were majority opinions.

As had Waxman and Reno, Rehnquist singled out Sullivan. Rehnquist said that Sullivan had “a stature in our constitutional history equal” to the foundational democratic principle of one-person, one-vote.

Prior to Sullivan, he explained, “slander and libel law were left to the States, with few constitutional restrictions.” States abused this power. The rules that they adopted “stifled criticism of public officials.” Democratic debate suffered “and the result was a less-informed public.”

Sullivan “sharply changed these traditional rules of libel law” by “relying on freedom of speech and on what Justice Brennan called our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.”

It did so by adopting the actual malice rule requiring public-official plaintiffs “to prove that the statements in question were defamatory, false, and made with actual malice.”

Rehnquist then passed judgment on Sullivan itself: “These developments in libel law altered the rules of the game of American politics, and speech, as a matter of fact, making American public officials more accountable, the American media more watchful, and the American people better informed.”

The comments, while short, are remarkable considering their source and their substance. Rehnquist had long doubted Sullivan. In fact, he had become increasingly hostile to Sullivan after joining in some of its extensions into other areas of defamation law. In 1984, as Lee Levine and Stephen Wermiel recount, Rehnquist was recorded in private deliberations as calling Sullivan a mistake.

But, that day in 1998, it no longer was. Instead, Sullivan was on the same pedestal as the vote.

In the End

Rehnquist’s comments that day in Washington, D.C. in May 1998 have for years been forgotten, unnoticed by commentators, attorneys, and academics. But those comments stand as one of the last, best defenses of Sullivan in the Court’s record. All of the Justices on today’s court would do good to revisit these comments.

What Rehnquist recognized — what has apparently been lost on Thomas, Gorsuch, and others — is that Sullivan is apolitical. It sought to protect democratic debate itself, not any particular speaker or any particular party. It ensures to the best it’s able that we are all “a participant in a democracy of equals.”

As Justice Samuel Alito explained in a full throated defense of the importance of free speech, Sullivan recognized that the First Amendment’s most important role was the “protection of robust and uninhibited debate on important political and social issues.”

Sullivan benefits everyone in this democracy — conservatives and liberals, the lonely pamphleteer and the paper of record. It stands for a simple proposition that conservatives should be loath to upend: our many debates about important issues of the day should be resolved in the public sphere and not in our courts.

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