THE FOURTH ESTATE: FIFTY YEARS AFTER NEW YORK TIMES V. SULLIVAN

220px-Nytimes_hqSupreme CourtBelow is a longer version of my column that ran today in USA Today. The column was originally written for a longer format but had to be reduced to fight the page. The column looks at state of the Fourth Estate on the 50th anniversary of the decision in New York Times v. Sullivan. I do not wish to understate the threat against the media in 1964 but it is hard to overstate the threat against the media in 2014.


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Fifty years ago this month, the United States Supreme Court handed down one of its most celebrated decisions, New York Times v. Sullivan. The decision ranks as one of the most profound defenses of a free press under the First Amendment. In its unanimous decision, the Court referred to growing threats against the media and the need to sharply limit liability for journalists to allow them to perform their role in our constitutional system. Those threats in 1964 however now seem almost quaint in comparison to those faced in 2014 by American media.

The New York Times v. Sullivan decision, and its progeny, was a major reason why the United States was once viewed as the world’s leading protector of press freedom. Now fifty years later, the United States is viewed as a growing menace to press freedom. In this year’s World Press Freedom Index by the respected Reporters Without Borders organization, the United States ranked forty-sixth in the world. The drop of 13 is tied directly to anti-media policies and practices under President Obama. It leaves the United States behind the former Soviet republics of Lithuania and Latvia as well as Romania, Poland and Czechoslovakia (both the Czech Republic and Slovakia), Ghana, South Africa and El Salvador.

ajaxhelperNew York Times v. Sullivan represented a classic conflict between government officials and the free press. The decision by Associate Justice William Brennan actually dealt with an advertisement and not a story. The ad referred to abuses of civil rights marchers and claimed that Martin Luther King had been arrested seven times. (He had been arrested 4 times). Although not mentioned, Montgomery Public Safety commissioner, L. B. Sullivan (shown in suit in the center), sued for defamation and punitive damages. He won under Alabama law in a highly dubious state preceding that awarded $500,000.

Brennan saw civil liability as creating a chilling effect on reporters and their companies, resulting in self-censorship that is just as stifling as direct censorship. Imposing a high standard for proof of defamation, Brennan sought to give the free press “breathing space” to carry out its key function in our system. In his concurrence, Hugo Black stated: “The half-million-dollar verdict does give dramatic proof . . . that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. The factual background of this case emphasizes the imminence and enormity of that threat.”

What the Court described as an imminent and enormous threat to the free press in 1964 pales in comparison to the threats presented in 2014. American media is facing both direct and indirect threats that threaten the entire industry.

Criminal liability

Journalists have found themselves increasingly under threat of criminal charges and surveillance. While courts were highly sympathetic to the media in reporting on civil rights, that sympathy has evaporated when the subject of reports went from figures like Bull Connor to Bin Laden. Both the Bush and Obama Administrations insisted that there is no distinction between journalists and other people who receive classified information for the purposes of criminal charges. The media revealed a couple years ago that the Obama Administration had placed various Associated Press reporters in various offices under surveillance around the country. They were not alone. Later investigative reports by the media found that the Obama Administration targeted Fox News correspondent James Rosen in another story involving leaked classified information. In the 2010 application for a secret warrant, the Obama Administration named Rosen as “an aider and abettor and/or co-conspirator” to the leaking of classified materials. Not only were his communications surveilled but so were his parents.

If that seems perfectly Nixonian, it is actually perfectly Obamian. While Richard Nixon was denounced for using the Espionage Act of 1917 to target journalists and whistleblowers, Obama has brought twice the number of such prosecutions of all prior presidents under the Act. The Obama Administration has pursued whistleblowers with unparalleled investigations and animus. At the same time, it has treated Julian Assange, who published the famous Wikileaks documents, as a criminal as opposed to either a journalist or a whistleblower. The Administration secured a 35-year jail term against Private Bradley Manning as the WikiLeaks source and Assange remains holed up in an embassy in London in fear of extradition by the United States. Assange’s self-exile seems to serve some government officials as a warning to other publishers of what will happen if they disclose such embarrassing material.

Likewise, Edward Snowden revealed a range of abuses in his later disclosures that triggered two task force investigations and a series of proposed reforms. Yet, the Administration has declared him to be a criminal while other nations herald him as a hero. The Administration also seeking an absurd 105-year sentence against freelance journalist Barrett Brown for working with hacktivist collective Anonymous and linking to hacked emails and other leaked information concerning the inner workings of the American security agencies.
Celebrated stories like the Pentagon Papers were based on classified documents disclosed by whistleblowers and published by the media. Most whistleblower cases involve such information since the government tends to classify things that it does not want the public to know, including embarrassing or abusive policies. Under its current policies, Obama would be prosecuting Daniel Ellsberg who was the celebrated whistleblower from the Nixon period.

Civil Liability

At one time, virtually every local news organization had investigative units that went under cover to expose abuses or corruption. Then, in 1997, the federal appellate court in Virginia handed down a ruling against ABC in a case involving the Food Lion grocery chain. The store had sued after an undercover story revealed horrifying unsanitary practices by Food Lion in the handling of meat. While the Fourth Circuit reduced damages from $5.5 million for trespass and misrepresenting reporters as employees, it still held that the media was not protected anymore than ordinary citizens in committing fraud or trespass. The result was widespread changes in the elimination or curtailment of the work of such units long credited with exposing abuses in areas ranging from nursing homes to businesses to prisons.

Reporters are also still facing prison for protecting confidentiality. While 49 states have so-called “press shield” laws protecting reporters from having to disclose confidential sources before grand juries, Congress has resisted such protections for decades. Recently, the incarceration of reporters led to renewed demands for such protection. However, under pressure from politicians like Senator Dianne Feinstein, Congress used the water-downed law to actually limit protections by excluding the growing numbers of “new media” members like bloggers from any protection. Those reporters just happen to have been key in disclosing abuses that Feinstein’s own Senate Intelligence Committee failed to disclose. The key to this new definition is whether the individual makes sufficient salary as a journalist – not whether he or she is performing a journalistic function. With the number of salaried journalists falling, it is a standard that guarantees a shrinking level of protection from government coercion.

Free Press vesus Free Speech
These criminal and civil threats are mounting at a time when the media is facing worsening market pressures posed by the Internet. Circulation numbers are dropping as people go digital for their news. With that drop, ad revenues are falling. The result is the steady closing of newspapers and magazines. The result is that media companies are more timid than ever in dealing with the threat of costly civil liability and litigation. With greatly reduced revenue, the threat of such costs and damages are greatly enhanced for companies with a thinning profit margin. The government and private litigants are fully aware of that vulnerability and exploit it.

Since 1964, courts have proven generally hostile to claims of journalistic principles and rights. Greater protections are now found under freedom of speech as opposed to the freedom of the press. Indeed, the trend appears to be subsuming the rights of journalists under free speech – losing the unique function (and protections) accorded journalists. As with the Feinstein approach to shield laws, this will further reduce reporters to simply citizens with a larger audience or readership. The free press clause will be largely superfluous. What was most powerful about New York Times v. Sullivan was the articulation of a distinct role – and the need for distinct protections – for journalists. Federal courts have steadily eroded that distinction in areas ranging from confidentiality to trespass to possession of classified material. While acknowledging the unique function of reporters, judges routinely deny them any enhanced or distinct protections from other citizens.

Ironically, we are living through one of the most inspiring periods for journalism. Neither the Courts nor Congress forced disclosure of policies ranging from torture programs, expanding warrantless surveillance systems, secret prisons, unilateral “kill list” orders targeting citizens, and other abuses. Indeed, the legislative and judicial branches effectively played critical roles in concealing these policies. They were revealed by a free media by reporters under direct threats from both the Bush and Obama Administrations. Leading journalists have revealed shocking practices and policies buried with the acquiescence of congressional leaders.

Congress needs to look comprehensively at this growing problem and a dying American media. In addition to strengthening criminal and civil protections for the media, we need to consider tax and loans packages to sustain media organizations, including new models for non-for-profit status for such organizations. Our free press has often been the one institution that stood between citizens and government abuse. It is now time we, the beneficiaries of the free press, directly support the Fourth Estate to guarantee that it will offer these same protections to future generations. It will take the public to force such changes. Politicians have a love/hate relationship with the press. They love media coverage but loathe media scrutiny.

If citizens have forgotten the vital burden (and faith) placed on the media by the Framers, they need simply to look around them. Our political system is experiencing widespread and endemic failure. Both the Judicial and Legislative branches have become increasing passive in the face of growing power exercised in the Executive Branch. The only moving part still functioning well in this system is the free press. If this trend is not changed, it is only a matter of time before criminal and civil liability brings even that final safeguard to a grinding halt. When that happens, the government will have achieved the dream of a citizenry left in blissful ignorance: reading only what the government itself releases for public consumption. The question is whether in another 50 years citizens will even recognize the type of journalism celebrated in New York Times v. Sullivan.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of the Board of Contributors of USA Today.

50 thoughts on “THE FOURTH ESTATE: FIFTY YEARS AFTER NEW YORK TIMES V. SULLIVAN

  1. When this President leaves office, and all of the truth comes out, as it always does, even the sycophant butt boys and girls here and elsewhere will admit this man is worse than Nixon. Well, maybe a few here won’t.

  2. The truth according to a far left weenie Hollywood type. He did a good job on Moneyball, I’ll give him that. This show SUCKS and was only given another season because of politics. It will be gone next year, the ratings are dismal.

  3. Mr. Turley, as a lawyer and a journalist, I generally enjoy your blog, but this post misses the mark. Your handwringing about a “dying American media” is absurd — yes, entities like Newsweek and Time are dying off, and the New York Times doesn’t have the financial or political clout it did at the time of Sullivan. But you’re overlooking the growing influence of new media entities like BuzzFeed and Gawker that are not only thriving, but are doing so to a degree that they are launching new investigative reporting teams — and hiring reporters from the likes of Reuters and the Times.

    You also gloss over the fact that “journalists” once had a monopoly on information by virtue of the fact that there was only one or two printing presses in town. Compare that to today. It’s almost trite to point out that platforms like Twitter and WordPress –which is powering your own blog — have democratized news reporting. And then there are forums like Reddit, Wikileaks, and so on.

    Yes, we should be vigilant about the Bush/Obama Administrations attempted impingements on press freedom, but holding out the Sullivan era as some bygone halcyon time is silly.

  4. “Four major national security scandals were revealed this week after being ignored for many months by corporate-controlled mainstream outlets.”
    http://www.justice-integrity.org/
    —————————————–
    Free Press vesus Free Speech vs. free markets?

  5. Excellent article!

    Of course, corporations and special interest are behind it all. Recently, 1000 black ministers protested against Obama’s policies, I heard, but the press did not cover it because corporations who profit from Obama’s policies don’t want us to know what goes on behind the scenes.

  6. [Excerpts] http://www.salzburg.umd.edu/media-innovation/journalism-self-censorship

    “PROBLEM STATEMENT — Article 19 of the Universal Declaration of Human Rights states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. However, such rights have been denied to many due to many reasons. Censorship, one of the major reasons, has received tremendous global attention; self-censorship less so. Yet like censorship, self-censorship denies citizens their right to be informed; self-censorship denies journalists their right to press freedom.”

    “It is journalists’ duty to report the truth to people. Yet some journalists, even those working for media that claim to uphold press freedom, self-censor what they write and report.

    There are two forms of censorship in the media: censorship and self-censorship. Censorship occurs when a state, political, religious or private party prohibits information from reaching citizens. Self-censorship occurs when journalists themselves prevent the publication of information. (See definitions of self-censorship in Exercise 1 below.) Journalists practice self-censorship because they are fearful of what could happen if they publish certain information — they are fearful of injury to themselves or their families, fearful of a lawsuit or other economic consequence.”

  7. http://www.justice-integrity.org/index.php?limitstart=6

    Jailed Journalist Update: Media Respond Timidly; Judge Fights Civil Rights Firm; Rights Anniversaries Loom
    Written by Andrew Kreig
    Justice Integrity Project
    Jailed Journalist Update: Media Respond Timidly; Judge Fights Civil Rights Firm; Rights Anniversaries Loom
    Written by Andrew Kreig
    Published on February 25, 2014

    “The nation’s journalists have compiled an erratic and ineffective record of supporting jailed journalist Roger Shuler, an Alabama blogger who has spent more than five months behind bars.”

  8. …the 50th anniversary March 10 of the New York Times v. Sullivan U.S. Supreme Court ruling that dismissed a trumped-up libel judgment in Alabama. The ruling enabled national news coverage of the 1960s civil rights struggle and has been regarded otherwise until recently in Alabama as a bulwark for the nation’s free press. http://www.justice-integrity.org/index.php?limitstart=6
    Selma – Montgomery March, 1965 – p1

  9. I hope that someday the American public will demand and end to the federal government’s attack on the Constitution while it is still possible.

    I have maintained for many years the greatest potential threat to the liberty of American citizens is federal politicians. And, every year it becomes more real than potential.

    I think Professor Turley identified one area of this very well here.

  10. If things play out in the line they are heading people are going to have to rely on journalists/bloggers who reside outside the United States. The reason is they are more out of reach of the U.S. government than domestic sources who might fear as persons here have described both direct and self censorship.

    It easily could become the same as the situation for citizens of countries such as Turkey, China, and Syria who attack journalists and the citizens resort to outside news about their country, finding any method they can.

  11. http://www.justice-integrity.org/index.php?option=com_content&view=article&id=635:jailed-journalist-update-media-respond-timidly-judge-fights-civil-rights-firm-rights-anniversaries-loom&catid=21&Itemid=114
    full article:

    “Roger Shuler researched and largely wrote his columns from a public library to conserve funds.”

    “Shuler, who had been a nationally prominent blogger authoring hundreds of columns about courtroom injustice affecting litigants across the Deep South, has no lawyer nor any funds for a lawyer.”

    ““I was surprised,” said American Civil Liberties Union of Alabama Legal Director Randall Marshall, “that there wasn’t more of an outcry from the media world when this first happened.”

  12. If George Santayana was right, and I think he was, “Those who cannt remember the past are condemned to repeat it”. Professor Turley has been spot on as of late in his musings regarding the Obama Adminstration. I find Obama affable, articulate of course, but in the Healthcare start up, and in the focus on the media he is proving himself feckless. In the
    executive abuses area I am profoundly worried that the current practices are insidious, and will serve to fulfill Woodrow Wilons desire for a ‘cabinet’ style government…. Thank you Professor Turley..

  13. Sometimes, I feel like our country is beginning to look more like China or N. Korea. I am so happy to see that Mr. Turley has stirred the journalistic pot once again to remind us that our 1st amendment rights–as well as all the public rights stated in the Constitution need to be protected.
    The difference between the New York Times vs Sullivan and now is that with the internet, we the American people can speak out and stand up for our freedoms.
    But be cautious as our mainstream media is cunning and deceptive, pushing their own brand of truth–that is why Obama has been able to bamboozle the American public, he has the mainstream media in his pocket.

  14. EVERYTHING white Anglo-Saxon, post-Media Monster William Randolph Hearst is 90% Right-wing ruled.

    Post-WW2 so called ‘Democrat’ Tex Johnson was more Right than left, and the only way Carter, Clinton or O’Barmy could survive is to constantly appease the sub-Fascist raving Right-wing wrong uns, in Congress and in the BIG corps.

    Especially, the 90% raving Right BIG media corps falsely claiming ‘Public Interest’ deviously meaning ‘Self Interest’.

    Dont Dumb Down – Wize Up!

  15. This article fails to note that the “Media” today is not the watchdog Fourth Estate of forty or fifty years ago. Today’s corporate media, including the NY Times, Washington Post and the major networks are simply extensions of and the propaganda arms and legs of the ruling class. Infortainment is the structure of the “news” with its minions such as Pelley, Sawyer, Williiams, Gregory and “60 Minutes” highly-paid PR flacks who dance with those they supposedly “cover.” Much like the wholly-owned Congress and Administrations, regardless of party, the corporate media promotes at best conventional “wisdom” or, at its worst, thanks to Murdoch and Ailes, fear and ignorance glorified.
    The Bush/Obama Administration’s “attacks” on the “media” focus on the outliers and few true investigative journalists left. Those few are seldom supported by the corporate infotainers who merely pose as “journalists.”

  16. willystina, I suppose Obama is more right than left, too. Everyone knows, second and third hand by now, this nation has been in decline ever since LBJ’s proclamation. Labeling all stockholders as right wing, is like labeling all women as whores. Are you a stockholder?

  17. Giovanna, remember when the pot get stirred the sludge at the bottom gets stirred to the top. Years worth of these abuses from different Administrations might also be seeing the light of day. Maybe no one will get away with destroying videos of torture this time.

  18. Some are either brainwashed or otherwise impaired. They can only see this in partisan terms. They are a big part of the problem.

  19. Unfortunately, the 4th Estate of Burke (via Thomas Carlyle) has become hopelessly corrupted by corporate and ideological influence, if not quite yet antiquated. which leaves us with the issue of formulating protections for and promoting the efficacy of what Stephen D. Cooper has coined: The Fifth Estate.

    Which we’re all participating in right here on this blog.

  20. J Smith, And, the political powers, led by Diane Feinstein, and supported by political sycophants and MSM, want to take away the First Amendment rights of blogs like this.

  21. Samantha,

    Not ALL whores, but , “90% Right wing wrong uns” in the BIG corporate media and in Congress.

    White Anglo Saxon Protestant/Christian Democracy should mean ‘caring’ not ‘callous’ Capitalism, free-markets not Fascist fraud markets.

    Meanwhile, 90% follow the money to the BIG Whore – Mammon.

  22. When Blogs stifle comments for reasons other than foul language then the blogging world suffers. Right now the internet is becoming our central locus of freedom. The word “press” is becoming antiquated. Printed newspapers have become good at running mug shots of folks recently arrested in town. The battles against the NSA are being waged by newspapers like the Guardian which is overseas. The Washington Post has a new owner. I don’t see him engaged over NSA and the Snowden developments. In the Pentagon Papers era the Graham family stuck up for the whistleblowers. Same with the Sullivans who owned the NYTimes. Same with the Pulitzer family that owned the St. Louis Post Dispatch. Things have gone to hell in a hand basket. If they don’t quit censoring people on this blog the I am going South. They kicked the dogs off.

  23. Nick contributes:

    “…even the sycophant butt boys and girls here and elsewhere will admit this man is worse than Nixon.”

    “The truth according to a far left weenie Hollywood type. He did a good job on Moneyball, I’ll give him that. This show SUCKS….”

    Way to raise the intellectual bar, there Nick. You insist on serving as a continual embarrassment to Prof. Turley, who has probably come to see you as his burden to carry like a crazy uncle stashed in the corner of the living room, incontinent and babbling nonsense and obscenities.

  24. Maybe Obama will get the title of worst ever. If he does, it won’t be for long. The next president or the one thereafter will sink lower. Nixon will always wear the crown for being first of an era, the way we still refer to Babe Ruth as the gold standard for sluggers.

    My vote for worst goes to Ford, who gave every future president a get-out-of-jail-free card.

  25. Jeff John Roberts: I think you’re overlooking the point the Prof. is making about journalism in the age of the “internets”. There was a time not too long ago when the blogosphere promised to make everyone a citizen journalist. Feinstein seeks to strip sites like Reddit of protection.

  26. Jeff John Roberts wrote: “…you’re overlooking the growing influence of new media entities like BuzzFeed and Gawker that are not only thriving, but are doing so to a degree that they are launching new investigative reporting teams…”

    I don’t think he is overlooking these entities. From my perspective, you put too much importance upon them. Also, perhaps you overlook the clout that wealth affords a company to defend its investigative reporters.

    By the way, according to gallup, most people still get their news from television rather than internet sources:
    http://www.gallup.com/poll/163412/americans-main-source-news.aspx

  27. How’s that whole “free speech exists outside of a relational context to all other rights” argument working out for you, JT? I see it is still inviting some sterling commentary.
    :roll:

  28. David:

    You bring up a good point on how most people get their news from television, I think that we can agree that is is shifting in the form of demographics and the likes. I suppose it will in general bounce back and forth at times. I hope that all forms can coexist since each has a particular niche and has advantages over the others.

    For example, relying on the small msg space provided by Twitter tweets. It is not indepth but it is rather instantaneous and can provide links to larger articles. News aggregators are good to gloss headlines. Television news is better for watching successive news segments where watching cascading videos on youtube is rather disjointed. Television is more widely availble in areas where wi fi cannot be utilized.

    I think it is good to let the market and the news customers decide what type of format might win out. As you probably know in the software business, some ideas / systems come and go. Just like Usenet and Dalnet, or tech like UUEncode or .arj algorhythms

  29. “Ted Cruz said last week at the Conservative Political Action Conference that Richard Nixon had nothing on the current lawbreaker occupying the White House.

    “Barack Obama is the president Richard Nixon always wished to be,” Cruz told the conservative faithful.

    He was quoting George Washington University law professor Jonathan Turley, who’s been comparing Obama to Nixon relentlessly over the last year.

    Turley has company. Conservative patriarch George Will opened a column last May by quoting the articles of impeachment against Nixon, suggesting that the IRS scandal had “echoes of Watergate.” Talking Points Memo

  30. Gene,

    I’ve read your response a couple of times…. I’m interested in what it is you are conveying…. I’ve taken it a couple of ways…. Can you enlighten me a little….

    If people can’t compare what Obama Bush Cheney have done to the rule of law as it pertains to Nixon they are the problem with the current political climate…. To support Obama whole heartily is to also give validity to Bush and Cheney…. There is no transparency….

  31. I spent not a little time drafting a comment on this article but it has, after three days, still not been posted. My comment expressed disagreement with the good professor and took the Fourth Estate to task for distorsion and fabrication. Why has my comment not been posted? It was lucid, thoughtful, clear and convincing. Surely, you would not suppress a comment simply because it disagrees with Mr. Turley’s opinion, would you?

  32. Oldfox33
    It is most likely the case the WordPress Vortex of Doom™ ate it up. Sometimes we don’t know whay this happens but there is a spam filter system on wordpress that occasionally eats posts that should have been marked as legitimate.

    I know this might seem inconvenient but this is the case with wordpress (the system that hosts this and many other blogs) but if anyone writes a large comment it is a good idea to copy somewhere before hitting the Post button. Then, if it disappears, you still have it to try again. If the Vortex of Doom eats it, feel free to ask someone to retrieve it for you. The Weekend Commentators can retrieve it for you in most cases. Just post a comment saying your orginal comment disappeared and we can see what happened.

    I am sorry to say that the comment you wrote is probably gone for good. We empty the spam bucket several times a day and it often gets to be over 2000+ spams in size. We unfortunately don’t have the time to go through everything unless someone asks us as soon as possible.

    Hope this helps
    Darren

  33. Impossible for Times v Sullivan and Citizens United to live within the same judicial framework as legitimate, or effective!

  34. The same year as the Times v. Sullivan decision, Rookie Times city editor, Abe Rosenthal, defamed the entire community of Kew Gardens and its peaceful residents by publishing a false account of the heinous murder of Kitty Genovese under the view of “28 eye witnesses” who failed to call police or come to her aid. Abe got a Pulitzer prize and a huge career boost out of that distortion and the NY Times has never looked back. Sure, they fired Jason Blair but they have not stopped publishing false, irresponsible, and inaccurate stories (see Coulter “Mugged” for particulars).

    Abe’s great fable has been repeated and incorporated into the world of clinical psychology and urban sociology as if it were actually true! It was not. I have no sympathy for a “profession” that has squandered its integrity and value to society on advocacy research and axe-grinding against common sense.
    [end part 1]

  35. One of my all time favorite books is Make No Law, about the Times case. I lent it to my Con Law Professor, who hadn’t heard of the book. He never gave it back…

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