Understanding The Times: How a Times Court Decision Revolutionized Libel Law


By the time the case reached the Supreme Court, the justices had seen enough. “This technique for harassing and punishing a free press — now that it has been shown to be possible — is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers,” one of the justices wrote.

The court famously held that public officials, and later all public figures, would need to show not just that an article was inaccurate and hurt their reputation, but also that the publisher acted with “actual malice” — with reckless disregard for the truth. It is a demanding standard, effectively requiring plaintiffs to show that editors knew a story was false, or had serious doubts about its accuracy, and published it anyway.

Sullivan led to a series of other court decisions that curtailed the ability of libel plaintiffs to win their lawsuits. None of it was intended to be a balancing. It was an imbalancing, a conscious decision by the courts to free journalists to pursue the truth without fear of triggering a lawsuit that could bankrupt their publisher. The Sullivan decision, like the First Amendment itself, was anchored in the belief that competing voices rather than lawsuits were the best way to get at the truth. The Times has long believed that as well. Its policy of not paying money to plaintiffs to settle libel suits in the United States against the newspaper traces back to a 1922 letter written by the publisher.

As powerful as Sullivan has been in curbing libel suits, it doesn’t really change the way newspaper lawyers go about their jobs. We still want to know whether the undertaker was really drunk and how our reporters came to know that. No lawyer here has ever reviewed a story draft, concluded it was a factual wreck and then declared it was good to go because the reporter didn’t have a reckless disregard for the truth. Whatever the Supreme Court may have said in Sullivan, getting it right is still what matters.

At The Times, Legal is asked every day to review articles and videos in advance of publication. Over time, trends emerge. We will almost always be focused on a story’s minor players, who tend to be the people most likely to sue. They are often unhappy to be in an article about someone else’s misconduct, have grievances about context or feel they should have been given more of a say. We spend lots of time considering the line between opinion (which is legally protected) and fact (which can give rise to a libel suit). And nothing more bedevils lawyers and editors than claims for “libel by implication” — when the facts may be right but a plaintiff says that the story implied something defamatory.

Undertaker Holmes’s case involved no such legal subtleties. At trial, The Times tried to prove he was drunk. That didn’t work out so well. Holmes won a $3,500 verdict. The Times soldiered on and finally got the verdict set aside on appeal — after nine years of litigating. Then as now, the decision makers at The Times thought the journalism was worth defending.


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