New York Times v. Sullivan at 50: Despite Criticism, the Actual Malice Standard Still Provides Breathing Space for Communications in the Public Interest

This year marks the fiftieth anniversary of the landmark Supreme Court decision in New York Times v. Sullivan. With the benefit of a 50-year perspective, this article focuses on three related aspects of the Sullivan decision. First, it arose from and provided protection for the emerging civil rights movement in the south. Second, the defamation-based attack on the civil rights movement caused the Court to depart from the common law and adopt the “actual malice” standard for recovery in defamation actions brought by public officials. In this article, we also explore the legal origins of that standard. Finally, the article considers both the criticism and the overall benefit of the actual malice standard as it has been applied through the years. We explore the application of the standard in a variety of contexts, including to blog articles, to overcome state law conditional privileges, in labor disputes, and in federal legislation to protect reports of suspicious air-transportation activity. We conclude that the actual malice standard has succeeded in providing “breathing space” for communications made in the public interest