ABA Journal

50 years after New York Times v. Sullivan, do courts still value journalists’ watchdog role?


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Photo by Mark Hooper

Fifty years ago, in the midst of the change and turmoil associated with the civil rights movement, the U.S. Supreme Court altered the nation’s course on many issues, including the First Amendment.

On March 9, 1964, a unanimous Supreme Court bucked precedent for libel and slander law and, in doing so, widened the scope of First Amendment protection for journalists.

The high court’s ruling in New York Times v. Sullivan forced a larger burden upon public officials pursuing libel or slander cases against the media. The court held that public officials attempting to sue publishers must show that the information disseminated was untrue, and that the publishers either knew the information was false or acted in reckless disregard for the truth.

The holding has become known for establishing the “actual malice” test integral to proving intent in defamation cases. According to legal scholars, the high court’s decision and dicta in Sullivan helped spawn generations of investigative journalists.

The ruling “changed American journalism. It set the stage for the boom in investigative reporting in the decades to follow and truly invigorated the watchdog role of the press,” says Kenneth A. Paulson, president and CEO of the First Amendment Center at the Newseum in Washington, D.C., and dean of the College of Mass Communication at Middle Tennessee State University.

Legal scholars say the cultural significance of Sullivan and its progeny has changed during the past 50 years. The actual-malice test continues to protect reporters and publishers faced with defamation cases. But the question is whether the journalist’s role as government watchdog is still valued and protected by U.S. laws and, particularly, by the judiciary.

Columbia University law professor David Pozen, who specializes in constitutional and national security issues, says that Sullivan and other cases from that era are “seen as valorizing an aggressive form of journalism and promoting the idea that courts are the institutional safeguards of that kind of journalism.”

But he says Sullivan has become more of an “interesting cultural artifact” than a court opinion reflecting how the judiciary views journalists.

“There is still a tendency among members of the media to view the courts in somewhat romantic terms as natural allies and guardians against overreaching by the political branches,” he says. “I’m not confident that remains a descriptively accurate view of the courts.”

“Courts have pulled back on the reporter’s privilege, generally in the national security concept,” adds Pozen. “It’s not at all clear that judges will be protective of journalists’ interests in light of the way judges have handled recent national-security-versus-open-government issues.”

Click here to read the rest of “A Weakened Shield?” from the March issue of the ABA Journal.

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