Reportorial Privilege And The Case That Swept 500 Years of Libel Law

“You no longer shape public opinion, you have supplanted it.” -Kurt Luedtke on the press


Is it too easy for the media to publish inaccurate “news?” Kurt Luedtke has a lot to say about journalists. Why does he have merit to speak about them? He used to be one. 

He thinks the media has grown so powerful and undisciplined, presumably due to New York Times v. Sullivan. The press has the ability to keep good men and women out of office for fear of what they might write or make up, perhaps to take advantage of the credulity of its audiences.

On your discretionary judgments hang reputations and careers, jail sentences and stock prices, Broadway shows, and water rates. You are the mechanism of reward and punishment, the arbiter of right and wrong, the roving eye of daily judgment.” -Luedtke

Freedom of the press has been abused to craft their agenda. Presumably, the media should be held under strict scrutiny as a matter of fairness.

In the 1964 Supreme Court case New York Times v. Sullivan, the media gained breathing space, initiating that libel is no longer a tort of strict liability. After Sullivan, the plaintiff must prove actual malice, which takes two forms: knowledge of falsity or reckless disregard for the truth.

In the case, the New York Times ran an ad accusing city employees in the south of alleged police misconduct. The ad never mentioned Sullivan by name or as a city commissioner, yet he claimed it defamed him. The ad did contain factual errors, so the New York Times could not use truth as a defense. SCOTUS had doubts that the ad referred to Sullivan, and there was no proof that he had been harmed.

The Warren court said there are constitutional limits to what states may do in awarding libel judgments. The question at SCOTUS was if Alabama’s libel law infringed on the First Amendment by dismissing the factual errors and not requiring Sullivan to prove that the ad personally harmed him.   

Sullivan was able to convince the jury that the criticism of the local police injured his reputation because many knew that one of his responsibilities as city commissioner was to oversee police, but the court said to allow such a judgment would sanction a new form of government censorship. The media needed some breathing space in handling controversial issues. Public officials voluntarily move into the public eye when they take office, and they are subject to more scrutiny.

I have gone back and forth with my opinion on this. It seems holding the media to a standard of strict scrutiny would make for an accurately informed society, yet denying journalists’ strict scrutiny perhaps leads to a timid pressI like what Luedtke said,

“The burden on the press is not at all excessive; the chilling effect, which the threat of libel action posed, chilled exactly what it was supposed to.”

Entitlement emerges when you esteem one profession over another. Journalists perhaps feel they have New York Times v. Sullivan to fall back on when they aren’t particularly accurate. They will always have that defense in the back of their mind. I  think the decision did a lot of damage to the press.

While good journalists strive to get it right, there will always be the journalist that abuses his or her Sullivan gift. I think Luedtke makes a very bold and valid point when he says this thinking has lead to arrogance.

If Sullivan were reversed, perhaps we would have a lot more honesty and accuracy. The media would be different, and it would do what it was meant to do: Hold our leaders and other journalists accountable for their actions. We might even have a lot less journalists, but is that a bad thing? It’s quality versus quantity, and I want quality.

Accuracy and an all-knowing public trumps a journalist’s fear of a libel suit. Having an inaccurate, biased media is detrimental to our country.

Luedtke said it better than I ever could. Read it for yourself. 



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