Actual malice: the legacy of New York Times Co. v. Sullivan

The New York Times is patting itself on the back this week to commemorate the fiftieth anniversary of a Supreme Court ruling in its favor. In 1963 the Warren Court unanimously overturned an Alabama libel conviction in which the Times was found liable for factual inaccuracies in an ad it published denouncing that state's mistreatment of civil-rights activists. While Alabama regarded the misstatements as defamatory, the Court decided that too strict a standard of accountability for accuracy for advocates had a chilling effect on public discourse. Two hundred years earlier, John Peter Zenger had escaped a libel conviction, and was made the patron saint of American press freedom, with the defense that a statement could not be libelous if it was true. New York Times Co. v. Sullivan went further: a statement critical of a public official could be false, but the falsehood was libelous only when made with "actual malice." Actual malice exists when you know your statement to be false, i.e. when you're consciously lying. In the Court's opinion, Justice William Brennan wrote: "Erroneous statement is inevitable in free debate [and] must be protected if the freedoms of expression are to have the breathing space that they need to survive."

Brennan was one of the great liberal justices, but fifty years later it looks like he may have put the country on a slippery slope. It isn't hard to imagine the potential for mischief in the Sullivan precedent in a postmodern age of often-willful skepticism. While Sullivan addresses libel law exclusively, its canonization as a civil-liberties milestone arguably has licensed political actors in general to disregard fact in their discourse. Little of the untruth readily circulating in our media today falls into the category of libel, but Sullivan may stay the hands or tongues of those who hope to hold anyone accountable, in any way, for disinforming the public. After all, how do you know that someone knows that what he's saying isn't true? And who are you to weigh your evidence against his belief? Who are you to say that he should know it's untrue? Liberalism and skepticism combine to perpetuate debate past all reasonable limits on some controversial questions, while extreme postmodernists (political or apolitical) see any assertion of truth as merely an assertion of power. In the 21st century actual malice may be less a matter of consciously lying than of cynical skepticism or bad faith -- a refusal of truth rather than a deliberate untruth. Even without Sullivan, you couldn't punish a person for this through law unless he actually attacked a person with his words. But the bit the Times quotes from Brennan in its commemorative editorial doesn't say anything about libel. The subject is "free debate" and we are all implicitly enjoined to give the maximum leeway to "erroneous statements" in any venue. We can correct them, of course, but we can't suppress them, and so the debate continues. But if you see any linkage between Sullivan and today's terrible state of public discourse, you may be tempted to wonder whether it would have been so hard for those noble civil-rights activists or their sympathizers to do some fact-checking before buying ad space in the Times.