Protection of Speech, or Protection of Political Allies? the U.S. Supreme Court and Libel

By Anderson, William L.; Shah, Amit | The Journal of Social, Political, and Economic Studies, Winter 2007 | Go to article overview

Protection of Speech, or Protection of Political Allies? the U.S. Supreme Court and Libel


Anderson, William L., Shah, Amit, The Journal of Social, Political, and Economic Studies


In modern times, libel suits are becoming increasingly scarce, and media firms are improving their prospects of successfully defending themselves. This is due in large part because in 1964 the U.S. Supreme Court unanimously changed the bounds of freedom of the press. New York Times v. Sullivan basically struck down all state laws on libel and gave new guidelines on how future libel laws needed to be written when the subject in question involved the actions of "public officials." The authors' examination of the decision and its aftermath infers that the Supreme Court was protecting media outlets such as the New York Times that had been supportive of the court's own "progressive" agenda. The Sullivan decision ultimately relieved the Times and other media organizations of huge potential financial liabilities by substantially lessening their exposure to libel. Furthermore, the court's 1974 Gertz v. Robert Welch decision, far from being a "give back" ruling, further advances the authors' theme.

1. Introduction

On the afternoon of April 11, 2007, attorney James Cooney, who represented one of the "Duke Lacrosse case defendants," spoke to a group of students, family and supporters of the defendants, and the news media. Just minutes before, North Carolina Attorney General Roy Cooper, after an exhaustive investigation in the case, dropped all charges and declared the defendants, Reade Seligmann, Collin Finnerty, and David Evans to be "innocent of all charges."

While excoriating the performance of the Durham Herald-Sun in its coverage of the case, Cooney then declared that one cannot win by suing "people who buy ink by the barrels." In other words, while the attorneys and defendants clearly were unhappy with the newspaper, there would be no libel suit forthcoming.

The decision by the attorneys not to sue the Herald-Sun, as well as other media outlets, such as CNN's "Nancy Grace Show," which especially had been quick to pronounce guilt for the Duke Three^sup +^ has its roots in a series of decisions made by the U.S. Supreme Court more than four decades ago. The first of these decisions, Times v. Sullivan, which was decided in March, 1964, in essence rewrote all of state law regarding the libeling of "public officials." In subsequent decisions, the High Court added most government employees and later included "public figures" as well. There is no doubt that modern libel law is a product of what the court led by Earl Warren decided during the tumultuous Civil Rights Era and did much to change the landscape there.

In a 2004 report, the Media Law Resource Center noted that over the past 25 years, the media firms have been increasingly winning libel lawsuits filed against them. Media firms are winning more trials, and even the number of libel trials is falling, according to the report1 Furthermore, even large jury awards often are substantially reduced on appeal, the report noted. It would seem that these developments would bode well for the freedom of the press, and many people have given the U.S. Supreme Court much of the credit for this change in the legal landscape.

The U.S. Supreme Court under Chief Justice Warren was well known for its decisions that changed much of the legal landscape in this country. From Brown v. Board of Education to the Miranda case, the high court reshaped the direction of government policy in its issuances from the bench, triggering a debate on "judicial activism" that resonates to the present day.

Although the Warren Court was not known to be particularly friendly to private enterprise, it did act decisively to protect one set of private firms - newspapers and other print media companies - from the ancient tort of libel. Beginning with its landmark 1964 decision, Times v. Sullivan, to its 1967 decisions of Associated Press v. Walker and Butts v. Curtis Publishing Company, the court in effect rewrote libel law for the entire nation, setting down new and extensive burdens that "public officials" and "public figures" had to overcome in order to win libel suits.

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Protection of Speech, or Protection of Political Allies? the U.S. Supreme Court and Libel
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