The Ad in the First Amendment

American journalists are protected from defamation claims by public officials under the standard set by a unanimous Supreme Court in New York Times Company v. Sullivan. Republican leaders like Gov. Ron DeSantis of Florida now want to abridge that protection.

To prevail in a libel case, the court held in 1964, a public official must prove “‘actual malice’ — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”

Surprisingly, the Sullivan case was not about Times journalism.

It concerned a full-page advertisement on March 29, 1960, seeking money for the legal defense of the Rev. Dr. Martin Luther King Jr. and the civil rights movement. A tear sheet is displayed in the Museum at The Times.

Among other things, the ad charged that historically Black Alabama State University in Montgomery (then called Alabama State College) had been “ringed” by “truckloads of police armed with shotguns and tear-gas.”

L.B. Sullivan, the police commissioner in Montgomery, sued The Times for libel. Though he was not named in the ad, Mr. Sullivan said police conduct would be imputed to him. By accepting the ad, he said, The Times had published statements it would have known to be false from its own clipping files. For instance, the police had not “ringed” the college campus.

On the stand, the manager of advertising acceptability for The Times, D. Vincent Redding (1910-70), said he had not questioned the accuracy of the ad, as it had been endorsed by people with reputations for “truthfulness and trustworthiness,” like Eleanor Roosevelt.

In 1962, the Alabama Supreme Court upheld a $500,000 judgment against The Times. That decision was reversed by the U.S. Supreme Court on March 9, 1964, in an opinion by Justice William J. Brennan Jr.

The presence of newspaper articles in the files “does not, of course, establish that the Times ‘knew’ the advertisement was false,” Justice Brennan wrote. The test of actual malice, he said, would be the “state of mind” of the employees “having responsibility for the publication of the advertisement.”

David E. McCraw, the deputy general counsel of the Times Company, said in an email on Monday that this principle is a key part of the defenses by Fox News against a defamation lawsuit brought by Dominion Voting Systems. Fox is charged with having broadcast statements about voting fraud in the 2020 presidential election that it knew to be false.