Do You REALLY Appreciate NYT v. Sullivan?

It’s the 50th anniversary of New York Times v. Sullivan, a Supreme Court case that any media law attorney will tell you ranks among the most important First Amendment cases of all time.

Sullivan held that public figures cannot pursue defamation claims unless they can establish that the false and defamatory statements were published with “actual malice.” This, the court held, was crucial to establishing the “breathing space” necessary for robust political dialogue.  And quoting Judge Learned Hand, Justice Brennan’s opinion notes that the First Amendment:

“presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.” 1

So ask yourself: if you agree that the government shouldn’t be picking winners and losers in the competition for the public’s ear, how do you feel about the Supreme Court’s 2010 decision in the Citizens United case?

How you answer THAT question will tell you whether you really believe in the values articulated in New York Times v. Sullivan. 2

Notes:

  1. New York Times v. Sullivan, 376 U.S. 254, 270 (1964)
  2. Two other interesting things about Sullivan: first, it’s a good illustration of the point that not all advertising is commercial speech (the case centered on the political ad embedded above).  And second, I’ve found that many attorneys mis-remember Sullivan from law school as standing for the principle that the media is only entitled to publish information about public figures.

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