The Press and Libel Before New York Times v. Sullivan

Abstract

This Article argues that Sullivan was not only a “civil rights case,” but also very much a libel case, one that was influenced by contemporaneous debates over libel law and freedom of the press. The Court intervened in what was perceived at the time as a near-crisis for the press caused by an increasing number of libel suits and large damage awards against publishers in the 1950s and ’60s. This escalation was a notable departure from the relatively tame “libel climate” of the previous forty years. For most of the first half of the twentieth century, the press had been able, to a remarkable degree, to avoid and defeat libel suits through strategic navigation of the libel law landscape. By combining a tactical accommodation of libel law with a dedicated resistance to it, the press had learned to “liv[e] with the law of libel.” By the 1940s, most of the nation’s major newspapers faced only a handful of libel suits each year, and the amount paid in judgments and settlements was low. The upset of that equilibrium, starting in the 1950s, put libel on the Supreme Court’s radar, and it spurred the Court to contemplate more aggressive intervention into the state law of libel.

In what follows, I shed new light on Sullivan through an account of the history of libel law and litigation in the United States in the years prior to the case, and the libel law context in which Sullivan was initiated and rose through the courts. This Article does not dwell on the constitutional law developments that influenced Sullivan or the common law of libel prior to Sullivan, but instead focuses on how the press dealt with libel, and the practical implications of libel law for American print media in the years leading up to Sullivan. In so doing, it reveals a reality about libel law that cannot be readily gleaned from a study of case law or treatises: that for much of the twentieth century, especially prior to the 1950s, libel did affect press behavior and the ability of the press to publish newsworthy stories, although it likely did not have the highly chilling effect on the press that its rigid formal doctrines suggested. Libel law did impose burdens on the press; it did require self-censoring to some extent. Yet many sectors of the press enjoyed broad latitude to report the news and to comment on politics and public issues, libel law notwithstanding.

That state of affairs, however, was seemingly threatened by changing libel trends in the 1950s and ’60s. Changes in the nation’s social and political culture, new dynamics of tort litigation, and new norms and practices of journalism increased the willingness and ability of plaintiffs to sue for libel and to recover damages. In an era when controversies around communism and civil rights, hostility towards the press, and large jury verdicts in tort cases encouraged the use of large-scale libel litigation as a weapon in political and cultural battles, when tort judgments increased nationwide, and when news publications received record-high jury verdicts in libel cases, many news outlets could no longer rely on their established systems for dealing with libel suits, and the likelihood of chilling effects was heightened. This change in the libel climate was not the only force encouraging the Court to institute constitutional protections in libel law, but it was an important factor, one that has been overlooked in standard accounts of the Sullivan case.

This Article describes the libel law history leading up to New York Times v. Sullivan. It explores the cultural and legal contexts that surrounded the case, and it suggests the influence of those contexts on the Supreme Court’s actions in Sullivan. Drawing on legal sources, popular literature, journalism, and the archival papers of publishers, it offers an account of how the press accommodated and resisted libel, how libel law shaped the workings of the press, and how the press shaped libel law. The Article focuses on major newspapers (and to a lesser extent, magazines) that dealt regularly with libel issues and libel litigation, and also preserved substantial records of their operations.

This Article chronicles the rise, fall, and partial resurgence of libel as a critical concern for the press in the United States from 1880 to 1964. Part I provides background on the law of libel. Part II describes the development of the mass circulation press in the late 1800s and the many libel suits that accompanied the rise of popular publishing. A surge of libel suits, spurred in part by sensationalistic yellow journalism, posed a formidable burden and near-existential crisis for
newspapers in the late nineteenth century. By the early twentieth century, however, the adoption of professional ethics and standards of accuracy and objectivity in journalism, including fact-checking and “libel-vetting” programs at many newspapers, reduced the number of potentially actionable statements and defused the libel crisis. The need to reduce or avoid libel had become an integral part of the professionalization of journalism.

Therefore, by the 1920s, primarily as a result of the press’s own efforts, libel had receded to the periphery of the problems faced by most major newspapers. As Part III describes, those elaborate systems of editing and checking for libel, the use of legal counsel to conduct prepublication review, and aggressive litigation strategies kept the number of libel suits and judgments low at most publications. These efforts consumed resources and curtailed some news content. Yet anecdotal accounts from publishers and lawyers suggests that they did not impose stifling burdens on publishing. A fairly broad freedom of the press existed, if not in formal law, then in the law’s practical operation.

The 1950s saw the resurgence of libel suits against the press. In the political ferment of the postwar era, an emboldened, well-funded press engaged more forthrightly in political critiques and investigative journalism, and the subjects of such reporting reacted with libel suits. As Part IV describes, the number of libel suits against the press increased, as did the amount of damages claimed and awarded. Many of the press’s established strategies for dealing with libel no longer functioned as they once did. Libel law became more of a concern for the press, and libel cases became central to the era’s political and culture wars. Against this contentious backdrop, the Supreme Court made its first, historic intervention into libel law in New York Times v. Sullivan.