Abstract
The Press and Libel Before New York Times v. Sullivan
Highlights
[44:4 order for a public official to recover in a libel suit, the official must demonstrate, as a First Amendment requirement, that the statement about him or her was false and made with “actual malice,” meaning that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”[1]
This Article argues that Sullivan was a “civil rights case,” and very much a libel case, one that was influenced by contemporaneous debates over libel law and freedom of the press
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
Summary
The tort of libel is of old British vintage, dating back to pre-Norman times.[12]. Originally fashioned as a means to deter violence—to stave off “blood feuds” and other forms of physical assault in defense of honor and reputation—libel (written defamation) and slander (oral defamation) were transplanted to America with the rest of the English common law and were subsequently adopted into American political culture.[13]. Libel was a strict liability tort—the publisher was responsible for its statements regardless of its intent or state of mind at the time of publishing.[20] Unless the statement fell into one of a few narrow categories of privilege, such as the privilege for reports of legislative or judicial proceedings, malice was presumed.[21] The only exception— the “fair comment” privilege—involved statements of opinion about public officials and public affairs This exception, which all states had adopted by the late nineteenth century, permitted publishers to make defamatory statements of opinion about public officials in their official capacity or about “matters of public interest and general concern,” provided that the underlying facts were true and that the statements were issued with “an honest purpose.”[22]. In the last quarter of the nineteenth century, libel became a genuine concern for the press
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