The Press and Libel Before New York Times v. Sullivan

This Article argues that Sullivan was not only a “civil rights case,” but also very much libel case, one influenced by contemporaneous debates over law and freedom of the press. The Court intervened in what perceived at time as near-crisis for press caused an increasing number suits large damage awards against publishers 1950s ’60s. escalation notable departure from relatively tame “libel climate” previous forty years. For most first half twentieth century, had been able, to remarkable degree, avoid defeat through strategic navigation landscape. By combining tactical accommodation with dedicated resistance it, learned “liv[e] libel.” 1940s, nation’s major newspapers faced handful each year, amount paid judgments settlements low. upset equilibrium, starting 1950s, put on Supreme Court’s radar, it spurred contemplate more aggressive intervention into state libel. In follows, I shed new light account history litigation United States years prior context which initiated rose courts. does dwell constitutional developments or common Sullivan, instead focuses how dealt libel, practical implications American print media leading up Sullivan. so doing, reveals reality about cannot be readily gleaned study case treatises: especially did affect behavior ability publish newsworthy stories, although likely have highly chilling effect its rigid formal doctrines suggested. Libel impose burdens press; require self-censoring some extent. Yet many sectors enjoyed broad latitude report news comment politics public issues, notwithstanding. That affairs, however, seemingly threatened changing trends Changes social political culture, dynamics tort litigation, norms practices journalism increased willingness plaintiffs sue recover damages. era when controversies around communism civil rights, hostility towards press, jury verdicts cases encouraged use large-scale weapon cultural battles, nationwide, publications received record-high cases, outlets could no longer rely their established systems dealing suits, likelihood effects heightened. change climate force encouraging institute protections law, important factor, has overlooked standard accounts case. describes New York Times v. It explores legal contexts surrounded suggests influence those actions Drawing sources, popular literature, journalism, archival papers publishers, offers accommodated resisted shaped workings law. (and lesser extent, magazines) regularly issues preserved substantial records operations. chronicles rise, fall, partial resurgence critical concern 1880 1964. Part provides background II development mass circulation late 1800s accompanied rise publishing. A surge part sensationalistic yellow posed formidable burden near-existential crisis nineteenth century. early adoption professional ethics standards accuracy objectivity including fact-checking “libel-vetting” programs newspapers, reduced potentially actionable statements defused crisis. need reduce become integral professionalization journalism. Therefore, 1920s, primarily result press’s own efforts, receded periphery problems newspapers. As III describes, elaborate editing checking counsel conduct prepublication review, strategies kept low publications. These efforts consumed resources curtailed content. anecdotal lawyers they stifling fairly existed, if then law’s operation. saw ferment postwar era, emboldened, well-funded engaged forthrightly critiques investigative subjects such reporting reacted suits. IV increased, damages claimed awarded. Many functioned once did. became central era’s culture wars. Against this contentious backdrop, made first, historic