Constitution Daily

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Podcast: Is the free press better off 50 years after the Sullivan decision?

March 14, 2014 by Scott Bomboy


This week marks the 50th anniversary of the New York Times v. Sullivan decision, and the Supreme Court’s ruling is either being hailed as one of the Court’s great moments of the 20th century,  or a decision that needs to be revisited.

800px-Abernathy_Children_on_front_line_leading_the_SELMA_TO_MONTGOMERY_MARCH_for_the_RIGHT_TO_VOTEThe Times had been sued for defamation by Montgomery, Alabama police commissioner L. B. Sullivan,  who took offense to an advertisement in the nationally read newspaper that supported the efforts of civil rights leader Dr. Martin Luther King Jr.

Sullivan’s lawyers argued that the ad damaged his reputation, and he had been libeled because it contained several inaccurate statements. Two Alabama court ruled in favor of Sullivan, and the Times took its case to the Supreme Court, saying that the ad wasn’t meant to hurt Sullivan’s reputation and the newspaper was protected under the First Amendment.

It was on March 9, 1964 that Justice William Brennan said, for a unanimous Supreme Court, that the Times had the right to publish the statements. Brennan said in order to prove libel, Sullivan had to show the statements were made with “actual malice” – “that is, with knowledge that [they] was false or with reckless disregard for the truth.”

The Sullivan ruling gave greater protection to the press from lawsuits, and effectively shifted the burden of proof from the accused to the accuser in defamation cases against public officials. But the Sullivan decision and decisions that followed about defamation and the process have had their critics over the years. Justice Antonin Scalia is among those critics, believing state legislatures should control defamation law, and not the Supreme Court.

So our podcast questions are: Did the Sullivan decision go too far, do circumstances 50 years later warrant a re-examination, or does the press need even more protection?

Joining our Jeffrey Rosen are two top experts on this historic decision.

Richard Epstein is the Laurence A. Tisch Professor of Law at the New York University School of Law. He is considered one of the most influential thinkers in legal academia. He is also been on record for a long time as raising considerable questions about the New York Times decision.

Geoffrey Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School. Geoff served as law clerk to Justice Brennan, before joining the University of Chicago faculty. He has served as Dean of the Law School and Provost of the University of Chicago.

You can listen to the podcast in the player below or click on the following link: Download this episode (right click and save)

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