Brooke Gladstone: This week in the Supreme court, there was a CFR or a call for response that could challenge New York Times v. Sullivan. The landmark case that holds a public official suing a news outlet for defamation or libel must show that the organization knew that a statement was false or recklessly published information without investigating whether it was accurate. The plaintiff in the case in question is Coral Ridge Ministries.

They're suing the Southern Poverty Law Center for labeling them an anti-LGBT hate group and Amazon Inc. for denying them access to AmazonSmile where organizations can collect donations from sales because of that hate group designation. SPLC and Amazon asked the district court to dismiss the case on the grounds that Coral Ridge Ministries hadn't alleged enough facts to show that SPLC acted with actual malice as required by New York Times v. Sullivan. The district court agreed and dismissed the case.

The dismissal was affirmed by a unanimous panel of the 11th Circuit Court of Appeals and we'll get to that in a moment, but why is this coming up now? Well, having failed to prove its case in the lower courts, the ministry is now asking the Supreme Court to step in and the rules. Specifically, they're asking the court to overrule nearly 60 years worth of precedent built on New York Times v. Sullivan and to do away with the actual malice standard entirely.

Of course, people in organizations file petitions, asking the high court to review lower court decisions every day. Very few of them are granted, but what makes this case worth paying attention to is that this week we got a small sign that at least some of the justices may be interested in granting the case when the court requested that SPLC and Amazon submit briefs explaining why the court shouldn't take it. Court Watchers don't know for sure who issued the CFR. It only takes one justice to do it, but the names of Clarence Thomas and Neil Gorsuch have both been floated.

They've both dissented from the courts, declining to hear a similar petition this past July. Justice Thomas has long been vocal about his opposition to Sullivan. It remains unclear if these two can convince two more of their colleagues to hear the case as four justices are necessary to grant a review. Since it seems that this crucial piece of case law might be on the chopping block, we thought it'd be a perfect time to revisit an interview we aired first in 2014, about the history of Sullivan.

The case was heard just months before the passage of the Civil Rights Act of 1964. Though the first amendment had already been around for nearly 200 years, it was narrowly focused. News outlets could be shuttered if sued by public officials over minor inaccuracies. The stakes were thus very high in New York Times v. Sullivan.

Andrew Cohen: This was a story about the Civil Rights Movement. It was a story about the New York Times covering the Civil Rights Movement. It was the story of local officials, in this case, in Alabama, trying to use state libel laws to essentially chill the press.

Brooke Gladstone: Andrew Cohen is a fellow at the Brennan center for justice and senior editor at the Marshall Project.

Andrew Cohen: To force reporters, either not to cover stories in the state or to cover civil rights stories in a way that was not true and more favorable to local officials than it was to the civil rights movement.

Brooke Gladstone: It begins as you note in your piece in March of 1960, and it wasn't about coverage. It was about a political ad that appeared in the New York Times broadly criticizing Southern officials for their aggressive response to civil rights protests.

Andrew Cohen: It's a full-page ad, which essentially decries the actions of local officials in Alabama. It was signed by Martin Luther King. It was signed by Harry Belafonte and other notable civil rights leaders. The New York Times accepted the ad and it turned out that there were certain minor inaccuracies in the text of the full-page ad.

Brooke Gladstone: Like what?

Andrew Cohen: There was one sentence about the number of times that Martin Luther King had been arrested. The figure was off by two. That's the kind of stuff that was cited by the Public Safety Commissioner in Montgomery, Alabama, a man named Sullivan, who, although he was not identified in the ad, said that The Times had libeled him by publishing all material about him.

Brooke Gladstone: The only protection against libel at the time was it had to be true. In this case, because there were a couple of minor inaccuracies, The Times couldn't argue that.

Andrew Cohen: That exactly right. At the time, the first amendment and libel laws were essentially separate. No court had really firmly linked the two in the context of public officials so you had this first amendment that says, "Congress shall make no law" abridging free speech and of the press. Then you had these libel laws, which were essentially doing just that.

Brooke Gladstone: How did Sullivan argue for defamation if he wasn't even mentioned?

Andrew Cohen: What he was able to do is in Alabama in the state courts, which of course were very favorable to him is to say the mere mention of the police. The word police linked him in the minds of readers. That was one of the main contentions that the New York Times asserted as the case got to the US Supreme Court that creating a libel liability in the context, where you don't identify the person specifically, who is liable, would generally preclude any criticism of any government action anywhere by any person working within that government.

Brooke Gladstone: The Alabama State Court decided in favor of Sullivan and then the Alabama Supreme court upheld the decision. Let me play you some C-SPAN tape from 1991 of the late great Tony Lewis who had covered the case for The Times.

Tony Lewis: Mr. Sullivan asked for $500,000 in damages and a white jury, all-white jury awarded him every penny of the $500,000. Others sued over the ad including the Governor of Alabama totaled some demanded $3 million. It was quite clear that if it were up to the Alabama juries, we'd be $3 million in the hole. The paper wouldn't-- The New York Times could not afford that kind of money. Then it was a barely profitable newspaper.

Andrew Cohen: It wasn't just intimidating to the New York Times. It was an offensive weapon if you will, by Southern politicians and Southern officials to try to financially freeze out the reporting that was occurring in the south at that time. There had been circumstances where reporters were basically not sent on assignments in the south because of the fear of these sorts of libel lawsuits. Had this ruling stood, coverage of the Civil Rights Movement going forward would've been far, far less aggressive and of course, that may have made a difference in the way that public perceptions were altered as a result of that coverage.

Brooke Gladstone: The Supreme court took the case, heard arguments that you call more intense and passionate than most. We have some tape of Herbert Wechsler who was the law on the side of The Times.

Herbert Wechsler: This action was judged in Alabama by an unconstitutional rule of law, a rule of law, offensive to the First Amendment. An offensive on its face to the First Amendment. What it amounts to is that a public official is entitled to recover presumed and punitive damages subject to no legal limit and amount for the publication of a statement critical of his official action or even of the official action of an agency under his general supervision.

Brooke Gladstone: Now, arguing Sullivan's side of the case was M. Roland Nachman, Jr. and he said that the precedent that would be set by letting The Times off would be far too dangerous.

1. Roland Nachman, Jr.: We think that the defendant in order to succeed must convince this court that a newspaper corporation has an absolute immunity from anything it publishes and we think that's something brand new and accurate proof. We think that it would have a devastating effect on this nation.

Andrew Cohen: What he was saying was don't create this new rule. What the court did was to say, "Look, we are going to recognize a First Amendment protection here." Public officials aren't going to have the same protection under libel laws that private people would have. That means we're going to allow the press to make mistakes. We're going to hold the press to certain standards, actual malice. We're going to try to make it clear to news organizations that they have certain responsibilities to try to be accurate but when there is a mistake, we are not necessarily going to jump to a huge punitive libel award.

Brooke Gladstone: Talk to me about the actual malice standard. How was it applied and how was it argued?

Andrew Cohen: That's a whole other conversation. The justices knew that they were extending First Amendment protections beyond where they had gone before. They wanted to do it in a way that they thought fairly balanced the interest of news organizations and First Amendment interest, but also to make sure that certain libel actions could succeed if there were particularly egregious factual mistakes, or if there was some intentional libeling of a public official.

Brooke Gladstone: The attorneys on both sides found themselves arguing the issue of intention. Here's Wechsler.

Herbert Wechsler: At the time when the publication was made, the New York Times had nothing by way of information to indicate that the statements were false.

Brooke Gladstone: On the other side, Nachman speaking for Sullivan--

Roland Nachman, Jr.: We say that on the facts of this case, that there was recklessness and abandon and an inability to look at facts before publication, which could be the equivalent of intent.

Andrew Cohen: This was a weak case on the facts for Alabama and you wonder if history would be different if the decision would be different, had the advertisement been incorrect in more material ways. You see in the argument made by the Alabama lawyer, talk about recklessness. This is an advertisement signed by leading figures. The Times was essentially saying we had no duty to give it the thorough fact-checking that we otherwise would. To require us to have a duty to do this and to get every single fact right in every single thing we print is simply something that the constitution doesn't require.

You see in this exchange, the recognition, I think by Alabama, that it wasn't going to win this case on the facts. It was going to win this case on the fact that the law had been a certain way for many decades and that it shouldn't change.

Brooke Gladstone: There was plenty of investigative reporting before Times v. Sullivan and lots of criticism of the government, so why was this so crucial?

Andrew Cohen: Talk about the criticism of the CIA and NSA. All of the major debates we have now, those debates would be very different. If the public officials involved in them felt that they could sue successfully under state law, to prohibit people from criticizing them for one or two or three minor mistakes. Sometimes when you look at the context of New York Times v. Sullivan, you don't wonder about the ruling. You wonder why it took so long. Six scores, seven scores, eight score years after the Bill of Rights is enacted.

You have this very strong ruling that says, listen, there is a place in America for public dissent against public officials. They're not going to be able to use these libel and slander laws as offensive weapons to chill speech.

Brooke Gladstone: Yet there are states that have passed food libel laws. If you say something bad about a piece of steal, you can get sued.

Andrew Cohen: Yes. Those laws do implicate the First Amendment in some respects. I think those laws are going to be challenged. I think the Supreme Court is very different today, obviously in terms of its ideology than it was back in 1964, but Sullivan is still good law.

Brooke Gladstone: Andrew, thank you very much.

Andrew Cohen: It's my pleasure.

Brooke Gladstone: Andrew Cohen is a fellow at the Brennan Center for Justice and senior editor at the Marshall Project. This interview first aired in 2014. Special thanks to Anna Doorman, who is the Allen Morrison Supreme court assistant project fellow at the public citizen litigation group. Thanks for listening and check out the big show that posts on Friday when we offer our take on the current debate over the little matter of incipient Civil War. I'm Brooke Gladstone.

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