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An absence of malice: Free speech precedent could be up for grabs in shifting media landscape
Ron Smith
Ron Smith

American watchers of the U.S. Supreme Court keep looking for the one phrase that strikes terror into the hearts of those who want courts to make law rather than leave it to the legislatures.

That phrase is: “We should reconsider our jurisprudence in this area.”

It’s a siren call to judicial review, where five members of the court signal they might hit the reset button on a new case that wipes out several old cases. The recent overturning of Roe v Wade and the Roe progeny is an example.

Flipping previous decisions is not unusual. In Dred Scott v. Sanford, the 1857 Taney court ruled slavery was beyond the scope of the American government to change a Black man’s status in America, meaning no constitutional amendment — including abolishing slavery — could change a Black man’s ineligibility for American citizenship, even if the applicant for citizenship in Missouri was a freedman such as Scott.

As Judge Robert Bork sardonically wrote, “it took a civil war to overturn Dred Scott.”

Brown v. Topeka Board of Education in 1954 overturned the 1896 precedent of Plessy v. Ferguson, concerning the constitutional right of equality before the law, another longstanding precedent that when flipped re-invigorated both the civil rights movement and anti-civil rights partisans.

A tour group observes the Brown v. Board mural on the third floor of the Kansas Statehouse, April 26, 2022 (Sherman Smith/Kansas Reflector)

Justice Clarence Thomas made news recently, suggesting the court reconsider New York Times v. Sullivan, a landmark 1964 libel case. According to Thomas, the court should decide whether Sullivan may have outlived its historic basis and usefulness in American journalism, given the changes over that period.

The 1981 movie “Absence of Malice,” with Paul Newman and Sally Field, carried a pointed messages about life in our complex media-oriented society. The movie shows what happens when the press blatantly targets a private businessman whose only blemish in life is a dead mobster was his uncle. The unfairness of the targeting makes for a great movie, and important historical points.

If you are a public figure and libeled by the press, Sullivan requires proof that the facts reported about you were wrong and the media acted with malice or, as it is sometimes put, the media had “reckless disregard for the truth.” Good faith mistakes (e.g. sloppy journalism and poor fact checking) are not actionable if you are a public figure.

One problem is the definition of a public figure is growing like Topsy.

The issue has important history behind it, and modern examples. In January 2019, Nick Sandmann, a 16-year-old white kid with an inane smile and a red MAGA hat, was part of a Covington, Tenn., Catholic High School trip to the Lincoln Memorial. A video showed him standing there, a foolish-looking smile on his face listening to Native American elder Nathan Phillips bang his drum and chant his music.

When Sandmann woke to begin his day he was not a public figure. By evening, the video went viral. The Washington Post and CNN’s coverage made Sandmann a public figure, put him and his schoolmates in public light, and, according to a court settlement, defamed him. He was portrayed as a domestic terrorist and anti-Native American racist.

The “actual malice” standard in Sullivan would protect media stories most of the time. However, the facts weren’t reported. Sandmann didn’t pick a fight with Phillips or denigrate him. Sandmann didn’t do anything except stand there and listen to Phillips chant, and smile.

The problem was that this young man wore The Hat. Ergo he was a racist. His school was threatened by the social media extremists. His classmates were threatened. Their school was closed for a while because of the threats.

Is everyone wearing a MAGA hat fairly labeled a racist? To some, the answer is yes.

Sandmann sued and reportedly settled a defamation suit against the Post, CNN and NBC for a significant amount. 

Before Sullivan

The Sullivan doctrine was born in a more sedate time.

In the first half of the 20th century, there were no TV broadcasting outlets. Newspapers were the main media. Lawsuits in this era were “fairly tame,” writes professor Samantha Barbas of the Buffalo University School of Law. If found liable, they paid small judgments and settlements.

Sullivan began as an anti-civil rights lawsuit. Smaller newspapers in the South, for self-preservation, did not cover the hellacious discrimination occurring in the South in the first six decades of the 20th century. The New York Times published an ad in 1960 in which the Committee to Defend Martin Luther King Jr. urged contributions to King’s defense fund. King was arrested 29 times in his early activism. His home in Montgomery, Ala., was firebombed in 1956.

The ad described what was happening to King and implied Montgomery police commissioner L.B. Sullivan’s officers condoned the bombing. Sullivan demanded a retraction. The Times refused. Sullivan sued for libel and, on the home court of an Alabama court, won — even though he was not named in the ad.

The Times appealed, and national newspapers rallied around the flag. Eventually the case made its way to the U. S. Supreme Court, where a new rule on press freedoms was proposed. Again, the court was asked to make public policy. The “absence of malice” standard is not found in the Constitution. But mistakes are part of the newspaper business, the press admitted, especially if reporters were on deadline.

In other words, false statements claimed as truth should be allowed if the false facts were not maliciously or intentionally published and the story is about a public figure. Sloppy journalism is sloppy, but it’s not libel, depending on the identity of the target. Hence Sullivan. Hence Sandmann.

In a saturnalia of self-glorification, Sullivan became “a triumph for civil rights and racial equality” for a free press. 


Modern critics of Sullivan argue that although the Constitution supports a free press, the Sullivan rule had no valid constitutional basis. Previous case law didn’t support the rule.

Before the Revolution, American newspapers were a problem for British authorities. Britain contemptuously censored colonial newspapers if anti-British information or opinions were published. Newspaper criticism of government was what “freedom of the press” was established to allow. Whether to protect careless journalists to defame private individuals or public officials with impunity was not part of the case law or colonial laws.

Since 1964, many changes in media markets have occurred. Most major cities are single-newspaper towns, limiting their political viewpoints. This narrows the public’s access to differing perspectives. According to Judge Lawrence Silberman’s dissent in a 2021 free press case Tah v. Global Witness Publishing, Inc., the consolidation towards a liberal bias in the press has affected the conditional purpose of Sullivan.

The Post, however, countering Silberman’s claims, said that Sullivan is the “bulwark of the First Amendment and American democracy: “Constitutional rights do not wax and wane with the wind.” The Post does not explain how these important press rights were waxing and waning in the wind before 1964.

Sullivan imposed a daunting standard, one that favors free speech over protecting reputation. It requires proof that statements were false 

To be sure, the political right has its own narrow viewpoints and prominent news outlets to share them. Fox News is being sued for statements its commentators made regarding alleged 2020 election fraud.

Sullivan imposed a daunting standard, one that favors free speech over protecting reputation. It requires proof that statements were false or with serious subjective doubts about their truth.

Practically every term of the court sees challenges to the Sullivan rule. Thomas recently agreed with the majority not to take up the 2022 case of Kathrine Mae McKee v. William H. Cosby Jr., but Thomas, like Silberman, signaled it might well be time for the Court to rethink Sullivan.

In 1993, Justice Elena Kagan, then a law professor at the University of Chicago, wrote Sullivan’s extension of the law was questionable. If Sullivan were ever reviewed, it would be interesting to see how she decides.

The winds of discontent are blowing. Many Americans don’t want their ideological opponents to have high-profile spots in the news media. They don’t want their favored leaders or subjects to face criticism. But the fact is, as long as news or opinion has a solid basis, is accurately reported and has an audience, it should be available in the marketplace of ideas.

Ron Smith is a fifth-generation Kansan, a native of Manhattan, an attorney practicing in Larned, a grandfather several times over, a Vietnam veteran and a civil war historian. He has written a variety of historical articles about 19th century lawyers for the Journal of the Kansas Bar Association and a biography of Thomas Ewing Jr., the state’s first chief justice, published by the University of Missouri Press. Contact