Rethinking Libel, Defamation, & Press Accountability

In 1964, the Supreme Court imposed a new regime of press freedom on the country. Before New York Times v. Sullivan, all Americans, even those active in public life, could sue and recover damages from anyone, including journalists, who had libeled them. Under the traditional standards, the truth of a statement was a defense against a claim of libel. Accordingly, the press was free to publish even scathing criticism of politicians, provided that the criticism was truthful. But when journalists published falsehoods, whether willfully or carelessly, they opened themselves up to lawsuits from those whose reputations they had harmed.

New York Times v. Sullivan and subsequent cases, however, swept away these traditional standards and the wholesome legal restraint they had imposed on the power of the press. From now on, the Court announced, the press would be held to a different and much more lenient standard when it falsely maligned public figures. Public figures could sue successfully for libel only if they could demonstrate that their defamers had acted with “actual malice”—that is, that they had knowingly published a falsehood or had acted with reckless disregard for the truth. Unsurprisingly, this standard proved almost impossible to meet in practice, with the result that the press has become almost completely free to defame prominent Americans with legal impunity.

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