A right to lie about government?

In the landmark case of New York Times v Sullivan, in 1964, the U.S. Supreme Court decided that criticism of public officials must be protected, even if some of the claims were inaccurate. Jeff Howard explains.

The case

On March 29, 1960, a fundraising appeal appeared in the New York Times on behalf of Rev. Martin Luther King, Jr., and his fellow civil rights activists. The letter described various altercations that King and his colleagues had with police in Montgomery, Alabama. Several of the details that appeared in the description, however, were false. While the letter indicated that King had been arrested seven times by police, he had actually only been arrested four times. The letter also asserted that Montgomery police responded to a student-run sing-along of “My Country, ‘Tis of Thee” by surrounding the peaceful protestors “with truckloads of police armed with shotguns and tear-gas”. Other protesting students, the letter insisted, were cornered in their university dining hall, the door “padlocked in an attempt to starve them into submission.” Neither assertion was true.

L. B. Sullivan, the Montgomery public safety commissioner, argued that the advertisement was an instance of illegal “libel” – published falsehoods about a person that harm his or her reputation. While Sullivan’s name was not mentioned in the New York Times appeal, he argued that his status as leader of the Montgomery police meant the letter was, by implication, defaming him. While an Alabama court awarded Sullivan $500,000, the U.S. Supreme Court unanimously reversed the decision on 9 March, 1964, arguing that Sullivan’s status as a public official triggered a higher standard of proof than were he a private citizen. Public policy debate must be allowed to be “uninhibited, robust and wide-open”. Specifically, the Court argued that anyone found guilty of committing libel or defamation of a public official must be guilty of “actual malice” – of knowingly choosing to lie and do harm – and King’s supporters were not. The decision fortified the freedom of the press in the U.S., making it extremely difficult for government officials to punish citizens for making even false claims about them.

Author opinion

The eminent defender of free speech, Alexander Meiklejohn, deemed the U.S. Supreme Court’s decision in New York Times v. Sullivan “an occasion for dancing in the streets.” At first glance, such laudatory reactions have a puzzling character. The justification for libel laws flows from a recognition of the extraordinary damage libel can do to private citizens’ reputations, damage from which it is sometimes impossible to recover (e.g., think of schoolteachers falsely accused of child abuse). For this reason, newspapers especially must exercise due diligence in ensuring that the facts they report about living, breathing human beings are correct. Why should the good men and women who sacrifice to serve in government lack the same sensible protections afforded to everyone else?

If governments were infallible, this would be a powerful line of reasoning indeed. However, the deep distrust of governmental authority that lies at the heart of the American constitutional experience enjoins us to be cautious in setting precedents for future generations of rulers. Tyrants would like nothing more than to be able to inflict prodigious penalties on their people for having circulated mistaken “facts” about those in power and the policies they enact. Drawing a jurisprudential Marginot Line fortifies our law against this prospect. It does not do so without cost; it makes honest politicians vulnerable to attacks they sometimes do not deserve. But that is the cost of serving a free people.

- Jeff Howard

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford. www.freespeechdebate.ox.ac.uk

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