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Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan
A deeply researched legal drama that documents this landmark First Amendment ruling--one that is more critical and controversial than ever.
Actual Malice tells the full story of New York Times v. Sullivan, the dramatic case that grew out of segregationists' attempts to quash reporting on the civil rights movement. In its landmark 1964 decision, the Supreme Court held that a public official must prove "actual malice" or reckless disregard of the truth to win a libel lawsuit, providing critical protections for free speech and freedom of the press.
Drawing on previously unexplored sources, including the archives of the New York Times Company and civil rights leaders, Samantha Barbas tracks the saga behind one of the most important First Amendment rulings in history. She situates the case within the turbulent 1960s and the history of the press, alongside striking portraits of the lawyers, officials, judges, activists, editors, and journalists who brought and defended the case. As the Sullivan doctrine faces growing controversy, Actual Malice reminds us of the stakes of the case that shaped American reporting and public discourse as we know it.
Actual Malice tells the full story of New York Times v. Sullivan, the dramatic case that grew out of segregationists' attempts to quash reporting on the civil rights movement. In its landmark 1964 decision, the Supreme Court held that a public official must prove "actual malice" or reckless disregard of the truth to win a libel lawsuit, providing critical protections for free speech and freedom of the press.
Drawing on previously unexplored sources, including the archives of the New York Times Company and civil rights leaders, Samantha Barbas tracks the saga behind one of the most important First Amendment rulings in history. She situates the case within the turbulent 1960s and the history of the press, alongside striking portraits of the lawyers, officials, judges, activists, editors, and journalists who brought and defended the case. As the Sullivan doctrine faces growing controversy, Actual Malice reminds us of the stakes of the case that shaped American reporting and public discourse as we know it.
291 pages, Kindle Edition
Published February 21, 2023
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208 people want to read
About the author
Samantha Barbas
8 books4 followersAn expert on legal history, First Amendment law and mass communications law, Samantha Barbas is a professor at the University of Buffalo School of Law. She was previously a professor of history at Chapman University, a visiting professor of history at U.C. Berkeley, and a lecturer at Arizona State University.
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Displaying 1 - 7 of 7 reviews
April 5, 2023
unputdownable, and pretty nuanced about the "merits" of the 'argument"
May 24, 2023
Excellent introduction to a landmark SCOTUS case for my rising seniors who will take AP Gov next year. Barbas recreates to perfection the civil rights context for this First and Fourteenth Amendment case. Here are selected notes:
p.1 Segregationist officials had found a way to weaponize libel law against their critics. Libel law allows those who allege that their reputations have been injured by false and defamatory statements to bring claims for monetary damages. When Sullivan sued the Times and the ministers, the libel laws in most states were strict. The falsity of the defamatory statement was presumed, and the only defense was to prove the statement’s truth “in all its particulars.” First Amendment protections didn’t apply to libel law at the time.
p.2 New York Times v. Sullivan is widely regarded to be one of the great opinions of constitutional law, “one of the most important free speech decisions of all time,” and is one of the most-cited Supreme Court opinions. Sullivan freed the press to report on the activities of public officials and to hold government accountable without fear of devastating libel suits.
p.3 The Sullivan standard is not ideal… For one, it protects false statements. Under Sullivan, innocent persons must suffer harms caused by speakers who got the facts wrong because of carelessness, so long as they did not “recklessly disregard” the truth. Under Sullivan, it’s better for journalists not to investigate—the more a reporter uncovers, the more likely it is that they will discover facts tat call into question the truth of the story, making them more likely to held liable for acting with actual malice.
p.7 For thousands of Americans, “the New York Times was the bible.”
p.14 Libel isa civil cause of action that protects personal reputation against false and defamatory statements. A defamatory statement is one that seriously lowers a person’s reputation; it exposes a person “ to hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace [and] deprives one of their confidence and friendly intercourse in society…. Historically, defamation had a moral dimension.
p.15 Before 1964, a person wo sued for libel didn’t have to prove the statement in question to be false; its falsity was presumed. The presumption of falsity reflected the old English notion that it didn’t matter whether a statement was true or false since it harmed a person’s reputation either way. The plaintiff didn’t have to sow actual injury to their reputation, only that the statement had the potential to harm their reputation.. Libel was judged under the rule of strict liability, meaning that the publisher was responsible for its statements regardless of their intent or state of mind at the time of publishing.
p.18 As a result of its aggressive tactics and well-trained lawyers, the Times rarely paid out judgments in libel cases. Of the $16,344, 284 sought in libel claims from January 1923 to October 1949, it paid only $43,987.
p.22 The rule used in most states, the “majority rule,” or so-called “strict rule” of privilege, was known as “fair comment.” Under fair comment, if a newspaper reported facts accurately, a wide range of commentary on it was permitted, but if it reported false facts, even in good faith belief in their truthfulness, it could be liable.
p.23 One of the most spectacular libel cases involved Henry Ford, who sued the Chicago Tribune in 1916 for having called him an “ignorant idealist” and an “anarchist.” Former president Theodore Roosevelt brought claims against a Michigan newspaper that accused him of being a drunk. Roosevelt and Ford both won their suits, having technically met the legal requirements. But each recovered only six cents, an indication of what juries thought of their cases.
p.25 Before the 1930s, the First Amendment did little to curb the government’s broad powers to restrict freedom of speech in the name of the common good. The dominant rule of constitutional free speech was that prior restraints (gag orders, or the suppression of speech before publication) were prohibited, but punishment of speakers for utterances that had a “bad tendency”—that offended the sensibilities of “right-thinking” persons or had a “tendency” to create individual or social harm, including harm to reputation—was considered to be a legitimate exercise of the state’s police powers, its capacity to regulate behavior and enforce order in the interest of public safety, health and morals.”
p.26 Before long, Holmes and Brandeis’s views became the law of the land, expressed in the majority opinions of the Supreme Court. This was facilitated by the ruling in Gitlow v. New York (1925). The First Amendment had been intended as a check on the federal government, but Gitlow “incorporated” the First Amendment, applying it to the states through the Fourteenth Amendment.
p.29 Between 1951 and 1963, the Supreme Court declined to review forty-four libel cases coming from the state and federal courts, implying that the issue of the First Amendment and libel had been settled.
p.33 Indeed, the mood in the South turned ugly after Brown and the Brown II decision of 1955, dictating that integration must occur wit “all deliberate speed.” Wen the court in 1955 held that segregated beaches and bathhouses in Baltimore and segregated golf courses in Atlanta were unconstitutional, it was clear that Brown was not just about education, and that the Court would likely declare all of Jim Crow unconstitutional. An all-out fight against integration began, dubbed “massive resistance.” One hundred and one members of the House and the Senate from the eleven states of the Old Confederacy signed a “Southern Manifesto” denouncing the Supreme Court’s “abuse of judicial power” and pledging “all lawful means” of resistance. A columnist for the Richmond News Leader names James Kilpatrick popularized the concept of “interposition”: the decisions of the Court were not valid unless the affected states agreed to them. By 1956, eleven Southern states had enacted over 140 laws of “interposition” to circumvent Brown.
p.35 Segregationists feared the power of the press, its power to sway public opinion toward civil rights and integration, and with good reason. In the 1950s, the mass media were at the peak of their prestige and influence. Media consumption reached record highs. More than a third of families read picture-filled Life magazine. The new medium of TV was nationalizing, going straight into Americans’ homes. By the end of the decade, 85 percent of the population watched television for more than five hours a day.
p.36 During massive resistance, segregationists waged a fierce battle against the Northern press. They cancelled subscriptions to national magazines and newspapers. Reporters and photographers were beaten and assaulted. Southern officials denounced “indoctrination” and “brainwashing” by the “left-wing liberal press.” The White Citizens’ Council sought to “nullify” the propaganda assault being waged against the minds of our young people and our citizens “ through the dissemination of “counter-propaganda” promoting segregationist views. Through this attack, segregationists intended to heal long-standing wounds of dignity, to rally the public in defense of segregation, and to quash reporting on civil rights, limiting outside scrutiny of the South’s treatment of race.
p.43 Montgomery was a stronghold in Alabama’s “massive resistance” to integration. Alabama had been the first state to adopt an “interposition” resolution in 1956, deeming the Brown decision to be “null, void, and od of no effect.” That year, Governor Jim Folsom’s refusal to follow court orders to integrate the University of Alabama resulted in the deployment of federal troops. State attorney general John Patterson, later elected governor with KKK backing, banned the NAACP from the state with trumped-up charges that it failed to properly register as a business operating within Alabama, an action copied by several other Southern states. The local Montgomery press never tired of telling whites tat civil war was still going on in Dixie—a war against “Yankees and race mixing.”
p.49 After the U.S. Supreme Court struck down segregation on Montgomery’s buses, Abernathy, King, and Rosa Parks took a historic ride on the front seat of a Montgomery bus. In retaliation, whites opened fire on downtown buses, burned crosses, and raided black neighborhoods. It was during tis reign of terror that King recognized the need for an organization that would coordinate the activities of civil rights groups in the South” [SCLC]
p.122 In an obvious dg at the U.S. Supreme Court, [Jones] noted that “ it is quite the fashion in high judicial places to work the XIV Amendment overtime.” ”The XIV Amendment has no standing whatever in this court, it isa pariah and an outcast,” Jones declared.
p.148 Not long after the Alabama Supreme Court’s decision in the Sullivan case, the libel cases intersected, rather fortuitously, with First Amendment theory.
In 1962, U.S. Supreme Court justice Hugo Black, famed for is “absolutist” position on freedom of speech, gave a public address in which he rejected the long-held maxim that libel was outside First Amendment’s protections. “My view is, without deviation, without exception, without any ifs, buts or whereases, tat freedom of speech means that you shall not do something to people either for the views they have or the views they express or the words they speak or write,” he said.
The Warren Court… had undertaken a program of constitutional reform that transformed the lives of ordinary Americans in a way no previous Court had ever done. Expanding its conventional jurisdiction, the Supreme Court reached out to decide important social issues such as civil rights, privacy, reapportionment, due process, and censorship. For the first time, the Court established itself as a forum for the resolution of social problems, an activist, democratic institution that would boldly implement social change.
p.149 The Court’s rulings on race were among its most sweeping and controversial. Moved by the sympathetic activism of the civil rights movement and an expansive view of equality and citizenship, the Court transformed deeply rooted patterns of segregation and discrimination. In a series of decisions in the 1950s, it extended Brown v Board of Education to end segregation in public beaches, parks, recreational facilities, housing developments, public buildings , eating facilities, and hospitals… The records of the Supreme Court from tis time are marked by cases striking back against the South’s efforts to enforce segregation and defy the Court’s equal protection rulings.
p.151 The Court had no systematic approach to adjudicating free speech claims. Its First Amendment jurisprudence was vague, simple, and incomplete. The predominant method used in First Amendment cases was “ad hoc balancing,” in which the respective interests in each case were balanced—in most cases, the government’s right to self-preservation against the rights of the individual litigant—without granting particular weight to free expression or considering the damage that the repression of speech inflicted to society as a whole.”
p.188 The October 1963 term… would be known as the “Second American Constitutional Convention” for its decisions radically innovating constitutional doctrine…Cases involving desegregation, reapportionment, school prayer, and obscenity, as well as five sit-in cases, were being argued at practically the same time as New York Times v. Sullivan.
p.1 Segregationist officials had found a way to weaponize libel law against their critics. Libel law allows those who allege that their reputations have been injured by false and defamatory statements to bring claims for monetary damages. When Sullivan sued the Times and the ministers, the libel laws in most states were strict. The falsity of the defamatory statement was presumed, and the only defense was to prove the statement’s truth “in all its particulars.” First Amendment protections didn’t apply to libel law at the time.
p.2 New York Times v. Sullivan is widely regarded to be one of the great opinions of constitutional law, “one of the most important free speech decisions of all time,” and is one of the most-cited Supreme Court opinions. Sullivan freed the press to report on the activities of public officials and to hold government accountable without fear of devastating libel suits.
p.3 The Sullivan standard is not ideal… For one, it protects false statements. Under Sullivan, innocent persons must suffer harms caused by speakers who got the facts wrong because of carelessness, so long as they did not “recklessly disregard” the truth. Under Sullivan, it’s better for journalists not to investigate—the more a reporter uncovers, the more likely it is that they will discover facts tat call into question the truth of the story, making them more likely to held liable for acting with actual malice.
p.7 For thousands of Americans, “the New York Times was the bible.”
p.14 Libel isa civil cause of action that protects personal reputation against false and defamatory statements. A defamatory statement is one that seriously lowers a person’s reputation; it exposes a person “ to hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace [and] deprives one of their confidence and friendly intercourse in society…. Historically, defamation had a moral dimension.
p.15 Before 1964, a person wo sued for libel didn’t have to prove the statement in question to be false; its falsity was presumed. The presumption of falsity reflected the old English notion that it didn’t matter whether a statement was true or false since it harmed a person’s reputation either way. The plaintiff didn’t have to sow actual injury to their reputation, only that the statement had the potential to harm their reputation.. Libel was judged under the rule of strict liability, meaning that the publisher was responsible for its statements regardless of their intent or state of mind at the time of publishing.
p.18 As a result of its aggressive tactics and well-trained lawyers, the Times rarely paid out judgments in libel cases. Of the $16,344, 284 sought in libel claims from January 1923 to October 1949, it paid only $43,987.
p.22 The rule used in most states, the “majority rule,” or so-called “strict rule” of privilege, was known as “fair comment.” Under fair comment, if a newspaper reported facts accurately, a wide range of commentary on it was permitted, but if it reported false facts, even in good faith belief in their truthfulness, it could be liable.
p.23 One of the most spectacular libel cases involved Henry Ford, who sued the Chicago Tribune in 1916 for having called him an “ignorant idealist” and an “anarchist.” Former president Theodore Roosevelt brought claims against a Michigan newspaper that accused him of being a drunk. Roosevelt and Ford both won their suits, having technically met the legal requirements. But each recovered only six cents, an indication of what juries thought of their cases.
p.25 Before the 1930s, the First Amendment did little to curb the government’s broad powers to restrict freedom of speech in the name of the common good. The dominant rule of constitutional free speech was that prior restraints (gag orders, or the suppression of speech before publication) were prohibited, but punishment of speakers for utterances that had a “bad tendency”—that offended the sensibilities of “right-thinking” persons or had a “tendency” to create individual or social harm, including harm to reputation—was considered to be a legitimate exercise of the state’s police powers, its capacity to regulate behavior and enforce order in the interest of public safety, health and morals.”
p.26 Before long, Holmes and Brandeis’s views became the law of the land, expressed in the majority opinions of the Supreme Court. This was facilitated by the ruling in Gitlow v. New York (1925). The First Amendment had been intended as a check on the federal government, but Gitlow “incorporated” the First Amendment, applying it to the states through the Fourteenth Amendment.
p.29 Between 1951 and 1963, the Supreme Court declined to review forty-four libel cases coming from the state and federal courts, implying that the issue of the First Amendment and libel had been settled.
p.33 Indeed, the mood in the South turned ugly after Brown and the Brown II decision of 1955, dictating that integration must occur wit “all deliberate speed.” Wen the court in 1955 held that segregated beaches and bathhouses in Baltimore and segregated golf courses in Atlanta were unconstitutional, it was clear that Brown was not just about education, and that the Court would likely declare all of Jim Crow unconstitutional. An all-out fight against integration began, dubbed “massive resistance.” One hundred and one members of the House and the Senate from the eleven states of the Old Confederacy signed a “Southern Manifesto” denouncing the Supreme Court’s “abuse of judicial power” and pledging “all lawful means” of resistance. A columnist for the Richmond News Leader names James Kilpatrick popularized the concept of “interposition”: the decisions of the Court were not valid unless the affected states agreed to them. By 1956, eleven Southern states had enacted over 140 laws of “interposition” to circumvent Brown.
p.35 Segregationists feared the power of the press, its power to sway public opinion toward civil rights and integration, and with good reason. In the 1950s, the mass media were at the peak of their prestige and influence. Media consumption reached record highs. More than a third of families read picture-filled Life magazine. The new medium of TV was nationalizing, going straight into Americans’ homes. By the end of the decade, 85 percent of the population watched television for more than five hours a day.
p.36 During massive resistance, segregationists waged a fierce battle against the Northern press. They cancelled subscriptions to national magazines and newspapers. Reporters and photographers were beaten and assaulted. Southern officials denounced “indoctrination” and “brainwashing” by the “left-wing liberal press.” The White Citizens’ Council sought to “nullify” the propaganda assault being waged against the minds of our young people and our citizens “ through the dissemination of “counter-propaganda” promoting segregationist views. Through this attack, segregationists intended to heal long-standing wounds of dignity, to rally the public in defense of segregation, and to quash reporting on civil rights, limiting outside scrutiny of the South’s treatment of race.
p.43 Montgomery was a stronghold in Alabama’s “massive resistance” to integration. Alabama had been the first state to adopt an “interposition” resolution in 1956, deeming the Brown decision to be “null, void, and od of no effect.” That year, Governor Jim Folsom’s refusal to follow court orders to integrate the University of Alabama resulted in the deployment of federal troops. State attorney general John Patterson, later elected governor with KKK backing, banned the NAACP from the state with trumped-up charges that it failed to properly register as a business operating within Alabama, an action copied by several other Southern states. The local Montgomery press never tired of telling whites tat civil war was still going on in Dixie—a war against “Yankees and race mixing.”
p.49 After the U.S. Supreme Court struck down segregation on Montgomery’s buses, Abernathy, King, and Rosa Parks took a historic ride on the front seat of a Montgomery bus. In retaliation, whites opened fire on downtown buses, burned crosses, and raided black neighborhoods. It was during tis reign of terror that King recognized the need for an organization that would coordinate the activities of civil rights groups in the South” [SCLC]
p.122 In an obvious dg at the U.S. Supreme Court, [Jones] noted that “ it is quite the fashion in high judicial places to work the XIV Amendment overtime.” ”The XIV Amendment has no standing whatever in this court, it isa pariah and an outcast,” Jones declared.
p.148 Not long after the Alabama Supreme Court’s decision in the Sullivan case, the libel cases intersected, rather fortuitously, with First Amendment theory.
In 1962, U.S. Supreme Court justice Hugo Black, famed for is “absolutist” position on freedom of speech, gave a public address in which he rejected the long-held maxim that libel was outside First Amendment’s protections. “My view is, without deviation, without exception, without any ifs, buts or whereases, tat freedom of speech means that you shall not do something to people either for the views they have or the views they express or the words they speak or write,” he said.
The Warren Court… had undertaken a program of constitutional reform that transformed the lives of ordinary Americans in a way no previous Court had ever done. Expanding its conventional jurisdiction, the Supreme Court reached out to decide important social issues such as civil rights, privacy, reapportionment, due process, and censorship. For the first time, the Court established itself as a forum for the resolution of social problems, an activist, democratic institution that would boldly implement social change.
p.149 The Court’s rulings on race were among its most sweeping and controversial. Moved by the sympathetic activism of the civil rights movement and an expansive view of equality and citizenship, the Court transformed deeply rooted patterns of segregation and discrimination. In a series of decisions in the 1950s, it extended Brown v Board of Education to end segregation in public beaches, parks, recreational facilities, housing developments, public buildings , eating facilities, and hospitals… The records of the Supreme Court from tis time are marked by cases striking back against the South’s efforts to enforce segregation and defy the Court’s equal protection rulings.
p.151 The Court had no systematic approach to adjudicating free speech claims. Its First Amendment jurisprudence was vague, simple, and incomplete. The predominant method used in First Amendment cases was “ad hoc balancing,” in which the respective interests in each case were balanced—in most cases, the government’s right to self-preservation against the rights of the individual litigant—without granting particular weight to free expression or considering the damage that the repression of speech inflicted to society as a whole.”
p.188 The October 1963 term… would be known as the “Second American Constitutional Convention” for its decisions radically innovating constitutional doctrine…Cases involving desegregation, reapportionment, school prayer, and obscenity, as well as five sit-in cases, were being argued at practically the same time as New York Times v. Sullivan.
April 1, 2023
The author has both a law degree and a ph.D in history, a great combination of expertise that she puts to good use in this work. She skillfully takes the reader through the historical issues, putting usback in time to the racial strife of the 1950's and early 1960's. She interweaves the seminal court cases (and the key case at issue of Sullivan v. New York Times) and explains them so lay readers can easily grasp the issues, as well as understand the back stories behind these cases. My only big issue is that she left me wanting more: where are we today with our issues of freedom of speech vs. libel (or as some people might say, "alternative facts")? Certainly the laws and tests such as "actual malice" crafted in the 1960's might deserve new reviews in the age of the internet, social media, and absolutely unconstrained speech. The question is where do we go from here? How would we change the tests in our brave new world? This book at least prompts the reader to think about these issues more deeply, in light of the historical context.
December 19, 2023
A detailed examination of the landmark Supreme Court decision, NYT v Sullivan, particularly the connections to the civil rights movement. At a time when some are talking about gutting it, it’s important to know the background.
February 23, 2024
A totally readable, engaging and smart look at the connections between one of the foremost libel laws in the land and its roots in the U.S. Civil Rights era of the early 1960s.
Read
November 5, 2025i read this for comm law but lowkey i liked it
May 13, 2025
I am a history buff, so I suppose I am predisposed to like a book like this, and I thought Ms. Barbas did a great job putting the decision into the context of the times. Giving the history leading up to the case and what it meant to all involved.
Displaying 1 - 7 of 7 reviews