Yesterday was the fiftieth anniversary of the US Supreme Court’s decision in the testy, tense libel case of New York Times v Sullivan. It’s an anniversary every Brit who believes in freedom should both celebrate and envy. We should celebrate it because the court’s decision struck a brilliant blow for press freedom and against defamation laws. Indeed, according to one account, ‘the practical effect [of the decision] was that defamation was effectively destroyed in America’. And we should envy it because, on this side of the pond, we remain saddled with illiberal, censorious libel laws better suited to the Middle Ages than to the twenty-first century. Fifty years after Sullivan, we in Britain need urgently to catch up with our American cousins by destroying our defamation laws, too.
Even though he was not named in the advert, LB Sullivan, the public safety commissioner of Montgomery, Alabama, believed that the ad implicitly defamed him by suggesting the forces under his control were engaged in a ‘wave of terror’, and so he sued the New York Times and four of the black ministers who had signed the ad. As required by Alabama law, he first wrote to the NYT to ask that it issue a retraction for what he described as the advert’s ‘gross errors’. But the NYT refused – saying ‘[we] are somewhat puzzled as to how you think the statements in any way reflect on you’ – so Sullivan took the paper and the four ministers to court in Alabama. He won, on the basis that the NYT advert did indeed get many facts wrong, including the claim that black students had been padlocked into a university dining hall and that King had been arrested seven times in Alabama (in fact it was four times). Sullivan was awarded $500,000. The NYT appealed against the decision at Alabama’s State Supreme Court, but the decision for Sullivan, and against the paper, was upheld.
Eventually, the NYT took its appeal to the federal Supreme Court – and the decision made there, on 9 March 1964, almost four years after the original advert had appeared in the pages of the NYT, would change America forever. The nine justices of the Supreme Court found unanimously in the NYT’s favour and struck down the judgement of the Alabama court as ‘constitutionally deficient’ on the basis that it ignored ‘the sturdy safeguard [of freedom of speech] embodied in the First Amendment’.
The Supreme Court’s Sullivan decision still makes for scintillating reading 50 years on. It basically defended the right of the people and the press to be not only critical of, but also cutting about public officials. ‘[D]ebate on public issues should be uninhibited, robust and wide open’, the court said, and therefore such debate ‘may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials’. In essence, the justices were defending the right to be offensive, the right to rattle, rile and blaspheme against those in authority and the ideas they propagate. Even more strikingly than that, they defended the right to be wrong, the right to publish inaccuracies and untruths. Recognising that the ad did get some basic facts wrong, the justices nonetheless declared that ‘erroneous statement is inevitable in free debate, and…it must be protected if the freedoms of expression are to have the “breathing space” that they need to survive’.
In justifying the publication of erroneous statements as a free-speech issue, the Supreme Court justices cited the 1940 case of Cantwell v Connecticut. In that case, Jesse Cantwell, a Jehovah’s Witness, argued that he should be free to proselytise about his religion without requiring a licence from the state of Connecticut, as was then required, on the basis that the state had no right to determine whether or not his religion was legitimate. On the question of whether Cantwell had caused deep offence to other religious groups in Connecticut, most notably two Roman Catholics who said he had slurred against their faith, the federal Supreme Court said that mythmaking and even falsity were part and parcel of free and frank open debate. ‘In the realm of religious faith, and in that of political belief… the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But.. in spite of the probability of excesses and abuses, [the liberty of freedom of speech] is, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.’ That is, although the free exchange of ideas and opinions often leads to the making of barbs and slurs and even untruths, still that free exchange remains a good. In citing Cantwell, the Supreme Court in 1964 was reaffirming the essential truth that freedom of speech, by its very definition, must include freedom even for offensive, scurrilous and, yes, fact-lite material.
The impact of the Sullivan decision was to rewrite American defamation law forever, by privileging the freedoms of speech and press over the reputation of individuals. Pre-Sullivan, Alabama and many other American states subscribed to the age-old definition of defamation: ‘Where the words published tend to injure a person libelled by them in his reputation, profession, trade or business… or tend to bring the individual into public contempt, they are libellous per se.’ It would then fall to the defendant, as the Supreme Court pointed out in Sullivan, to ‘persuade the jury that [his statement] was true in all its particulars’. That is, a statement that harmed someone’s reputation was automatically presumed to be libellous, and it was down to the defendant to prove otherwise; thus was the defendant effectively presumed to be guilty of libel until he could prove himself innocent – a warping of traditional justice.
The Sullivan decision changed this across the whole of America, through insisting that a public official should only be able to claim defamatory damages if he could prove ‘actual malice’ on the part of the defendant – that is, that the defendant had made his statement ‘with knowledge that it was false or with reckless disregard of whether it was false or not’. No longer would the fact that a statement injured someone’s reputation be a sufficient cause to sue, nor would even the fact that the statement was wrong be proper grounds for a defamation claim; instead it would have to be proven, by the claimant, that ‘actual malice’ was contained in the allegedly defamatory statements. This has made it very difficult indeed for public officials in the US to sue individuals or the press, which is exactly as it should be.
In justifying their effective rewriting of libel laws so that freedom of speech took priority over individual reputation, the justices cited Coleman v MacLennan, a 1908 Kansas case in which a politician said a newspaper had libelled him. Back then – 100-plus years ago – the Supreme Court of Kansas said something that should ring in the ears of every libel law supporter, EU official, privacy activist and Leveson lover of today who argues that protecting individuals from harm or so-called hate speech or privacy invasions must sometimes trump freedom of speech:
It is of the utmost consequence that the people should discuss the character and qualifications of [electoral] candidates. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great.’
In short, even when public figures are subjected to reputational injury – including great injury – still free and open discussion must be allowed to continue, for its importance to society, to public life, to all of us, is ‘so vast’. That is, our freedom is more important than your reputation.
Fifty years on, the ideals that fuelled the Sullivan decision are far from safe – including in America. Three of the current justices of the Supreme Court have said that they would not have supported the decision. And its fiftieth anniversary has been greeted with as much handwringing as celebration, with one right-leaning American commentator saying it was a ‘really bad decision’ because it allowed ‘powerful corporations [like the New York Times] to negligently ruin ordinary citizens with impunity’. (That is a common trick of the illiberal today – make out like your opposition to freedom of speech is a defence of the weak against the mighty and rich.) But the advantages of Sullivan for Americans are still palpable.
Just compare the fates of the American singer Courtney Love and the British politician’s wife Sally Bercow. In recent months, both were sued for libel for tweeting untrue things – Love for saying that her former lawyer had been ‘bought off’, Bercow for hinting that a leading Tory was a paedophile. Yet where Love was found not guilty of libel, despite being wrong in what she said, Bercow was found guilty and was forced to pay undisclosed damages to the politician in question. Love’s speech was protected by the Sullivan ruling; Bercow, like every other person in England, is at the mercy of archaic, backward libel laws.
Indeed, far from catching up with Sullivan, English libel law remains the same as the law that held in Alabama pre-Sullivan, when the New York Times was successfully sued there. Under our law, individual reputation trumps public freedom. A defamatory statement is presumed to be false unless the defendant can prove otherwise – that is, in a total warping of the norms of justice, the individual sued for libel is effectively presumed to be guilty and he must endeavour to prove his innocence. This can prove extremely difficult, which is why around 80 per cent of libel cases find in favour of the suer. The unjust ease with which powerful individuals can sue their alleged defamers in English courts has a terribly detrimental impact on freedom of speech here: it chills the press, making it risk-averse and super-cautious for fear of being sued for saying something shocking, scurrilous or possibly not entirely correct; and it has led to certain controversial foreign books not being published here on the basis that their publishers might be sued in our medieval courts. Not for nothing have various American courts recently cast down English libel judgements against American citizens, describing our libel laws as ‘repugnant’.
Yet rather than launch a Sullivan-style critique of English libel law, British liberal campaigners either support small reforms of the law, which will make some aspects of the law even worse, or, in the case of Shami Chakrabarti of Liberty, they actually threaten to sue their critics for libel. In 2008, Chakrabarti threatened the then UK culture secretary Andy Burnham with a libel suit after he hinted that she was getting very close to the Conservative Party’s David Davis, and she did so on the basis that freedom of speech does not cover ‘slurs made in the wider public domain’. Well, in America it does. Chakrabarti should read Sullivan, a document that is 50 years old and dusty but which nonetheless puts our modern campaigners for liberty-lite to shame. We Brits don’t need to tweak our libel laws or finesse them, far less use them to try to silence our critics; we should put them in the shredding machine of history. The best remedy for bad speech and erroneous comments and even for slurs and lies is never the law – it’s more speech, the correction of myths and misunderstanding through greater, more expansive debate. Or as the American justice Louis Brandeis put it, in words quoted prominently in Sullivan, ‘Sunlight is the most powerful of all disinfectants’.