Public and Private Figures
Two particular Supreme Court decisions have clarified the libel protections and responsibilities for journalists. In New York Times Co. v. Sullivan (1964), the Times was alleged to have committed libel by publishing a full-page advertisement by supporters of Martin Luther King Jr. that criticized the police in Montgomery, Alabama, for their mistreatment of civil rights protesters. The ad had a number of factual inaccuracies, such as the number of times King had been arrested during the protests, and the Times subsequently published a retraction of the advertisement. Nevertheless, Montgomery Public Safety commissioner, L. B. Sullivan, sued the Times. Although he was not named in the ad, Sullivan argued that the inaccurate criticism of actions by the police in the ad was defamatory to him because it was his duty to supervise the police department. In an unanimous decision, the Court ruled that "the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false) or in reckless disregard of their truth or falsity."
Put another way, when it comes to public officials, in the context of carrying out their public duties, the plaintiff must show that the journalistic error was due to an intent to harm the official or as a result of recklessness — meaning a journalist plainly disregarded information that should have been evident to them. This is a high bar, as it can be immensely difficult to prove a journalist’s intent to harm. Later cases extended the "actual malice" standard to encompass public figures, which include not only public officials but anyone who has gained a significant degree of fame or notoriety in general or in the context of a particular issue or controversy. This may include celebrities, elite athletes, or regular citizens who become embroiled in highly public debates.
Later, in the case Gertz v. Robert Welch, Inc. (1974), the Supreme Court established a separate standard for private figures, such as a teacher or local business owner. In this instance, a series of articles appearing in the magazine American Opinion claimed that Elmer Gertz, a lawyer who represented an individual shot and killed by a police officer, had orchestrated the officer’s conviction; that Gertz was a member of various communist front organizations; and that he had a lengthy criminal record of his own. Gertz sued over those false statements.
Although the editor of the publication conceded the errors and stated that he had made no independent efforts to verify the claims, he countered that the publication did not involve actual malice and was protected under the New York Times Co. v. Sullivan standard. In a 5-4 decision, the Supreme Court ruled in Gertz’s favor, noting that public figures had access to more resources and ways to defend themselves than private figures, and therefore public figures should be held to higher standards in libel cases. The Court further held that states could formulate their own, lower standards of libel for statements made about private figures. In practice, this has resulted in a lower standard for private figures across the U.S., with private figures having only to show that a journalist was negligent, or that they failed to engage in basic journalistic practices like trying to verify basic information prior to publication.
Although journalists who follow best practices receive robust protections against libel, they must nevertheless sometimes weigh the threat of a libel suit. Even if a journalist is well-positioned to defend themselves, the legal process can be very expensive — especially if the journalist lacks the support of an organization with a legal team on retainer, as is the case for most freelancers. In fact, several powerful figures have wielded libel lawsuits as a weapon against critical journalism, knowing that even an unsuccessful lawsuit is likely to make other journalists think twice about writing critical stories about them in the future. While some states have enacted laws penalizing frivolous lawsuits in recent years, they nevertheless continue to serve as powerful weapons for silencing journalists.