‘Common Law’ Explores Why the Supreme Court’s Most Famous Libel Case Is Still Generating Debates

Professor Frederick Schauer Discusses the Ongoing Impact of New York Times Co. v. Sullivan
Frederick Schauer

Frederick Schauer is a David and Mary Harrison Distinguished Professor of Law, and a leading expert on legal theory and the First Amendment. Photo by Mary Wood

February 4, 2020

The rampant spread of false information is causing some experts to reconsider a landmark U.S. Supreme Court case that established modern libel law, Professor Frederick Schauer explains on the latest “Common Law,” a podcast of the University of Virginia School of Law.

This season of “Common Law,” hosted by Dean Risa Goluboff and Vice Dean Leslie Kendrick ’06, is focusing on times when law changed the world.

Libel law was handled by state courts and wasn’t considered a constitutional issue until the landmark 1964 case New York Times Co. v. Sullivan. The case involved an ad that ran in the Times objecting to the treatment of Martin Luther King Jr. and other civil rights protesters by Alabama police. Because the ad had some inaccuracies, Montgomery, Alabama, police Commissioner L.B. Sullivan sued and won $500,000 in an Alabama state court.

“The real goal here was to punish The New York Times not for publishing this ad, but basically for representing, let us say, Northern Yankee agitators who were interfering or criticizing the South and just at the beginning of that part of the civil rights era that was characterized by marches, protests, demonstrations, picketing and the like,” Schauer says on the show.

The New York Times appealed, and the Supreme Court eventually ruled in the paper’s favor, transforming libel law into a First Amendment issue, and setting the United States apart from other common law countries in how it treats libel.

“Ultimately what they agreed on is a dramatic constitutionalization of the common law of libel,” Schauer says.

The case led to the world’s broadest protections for the press. Someone seeking to win a libel claim would have to prove that a written account was not only false, but that the defendant communicated the statement with “actual malice” — that is, that the defendant knew it was false.

“As a practical matter, it is almost impossible to prove that,” he says, noting that the court said in another case that actual malice included “with reckless disregard of whether it was false or not.”

A later case clarified that Sullivan also applied to public figures, not just public officials.

“So it turns out that the same legal regime that applies to Commissioner Sullivan, presidents, senators, governors and so on, also applies to Tom Brady, Miley Cyrus, Paris Hilton and various other celebrities who have little if no connection with public affairs or public matters,” he says.

Other democratic countries, such as Australia, South Africa and the United Kingdom, allow public figures more opportunity to challenge false reports. But in the United States, Sullivan “essentially eliminated the libel suit as a weapon or a component of political campaigns and political debates and political arguments.”

U.S. Supreme Court Justice Clarence Thomas called for a reconsideration of the ruling in a concurring opinion released in February in Kathrine Mae McKee v. William H. Cosby Jr.

Schauer is a David and Mary Harrison Distinguished Professor of Law, and one of the world’s leading legal theorists. He is an authority on the First Amendment and his works include “Free Speech: A Philosophical Enquiry,” “The Law of Obscenity” and “Thinking Like a Lawyer.”

“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify and other popular places you can listen to podcasts, including devices like Amazon Alexa. This episode was recorded at the Virginia Quarterly Review and produced by Sydney Halleman and Robert Armengol.

You can follow the show on the website commonlawpodcast.com or Twitter at @CommonLawUVA.

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