What is the Sullivan case and Reference to Social Media?

Interestingly enough L.B. Sullivan was police commissioner in Montgomery, AL in 1960. An ad was displayed in the New York Times regarding the request for donations for the defense of Martin Luther King, Jr. The ad did not mention Sullivan specifically but was critical of the Montgomery Police Department. Sullivan felt that the incorrect statements in the Times ad regarding his department personnel reflected on him as commissioner. Under Alabama law, it was necessary that Sullivan object in writing to the New York Times, which he did. The Times did not retract the ad and Sullivan sued. Sullivan was awarded $500,000.00 in Circuit Court and the Alabama Supreme Court affirmed. The case was heard by the United States Supreme Court.

In 1964, the United States Supreme Court reversed the holding of the Alabama Supreme Court in this First Amendment case regarding libel. At the time there were several cases against northern media outlets reporting on civil rights issues and it was the feeling of those in authority in the South that had been criticized that several of the criticisms were libelous. Alabama Governor John Patterson got into the fray with the Times stating how he was offended as Governor of Alabama and demanded a retraction. The Times retracted the ad based on Patterson’s demand but did not mention Sullivan. The Court felt that to have free and open reporting on events even if mistakes were made in reporting it was critical to move forward where public officials are concerned, summed up by; “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 the knowledge that they are false) or in reckless disregard of their truth or falsity.”

Sullivan, like so many other monumental decisions has expanded over time regarding freedom of speech. A 1967 case further expanded this case to include public figures, not only to include public officials but now includes movie and television actors, businessmen, musicians and even people like Kim Kardashian whom I am yet to figure out how she is relevant to the world. A 1988 case, Hustler Magazine, Inc. v. Falwell involved an ad in Hustler magazine that suggested Rev. Falwell to be an incestuous drunk. Though under Sullivan one might argue that the parody ad was in reckless disregard of truth, it was held by the Court that public figures are prohibited “from recovering damages for the tort of intentional infliction of emotional distress (IIED), if the emotional distress was caused by a caricature, parody, or satire of the public figure that a reasonable person would not have interpreted as factual.”

Twenty-eight years ago, then law professor Elena Kagan (now Supreme Court justice) suggested in a writing that Sullivan should be reconsidered. She suggested that both truthful statements of fact were supported as well as false statements. Conservative Justices Gorsuch and Thomas are now suggesting as well that Sullivan should be reconsidered. Gorsuch has pointed out that with the rise of social media and a decline of standard media outlets there has been a decline in fact checking. While Sullivan’s objective was an informed public debate now many people on social media have become something of a public figure. With that in mind, “fake news” and less fact checking has been on the rise, everyone believing their stories to be protected as being libelous. Justice Thomas submitted recently that the 2016 shooting in a Washington pizzeria was the result of a crazed conspiracy theory that had circulated online. He is concerned that people on social media now become public figures of sort and unlike real public figures who have the ability to defend themselves, others do not have the personal or public resources to defend them against libelous remarks.

It will be interesting to follow potential changes in Sullivan.

As always if you do not have an attorney, ask a trusted friend or family member or contact the Alabama State Bar, Lawyer Referral service.

Ronald A. Holtsford, Esq., Ronald A. Holtsford, LLC, 7956 Vaughn Road, Box #124, Montgomery, AL 36116, (334) 220-3700, raholtsford@aol.com

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.”No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers.”