In an effort to shed more light on how we work, The Times is running a series of short posts explaining some of our journalistic practices. Read more of this series here.
This month The New York Times won a libel suit brought by an Ohio State professor over this investigative story. Here, David McCraw, deputy general counsel at The Times, talks about the paper’s history of handling libel claims.
The undertaker was drunk.
At least that is what The New York Times said. The year was 1886, and The Times was reporting on a simmering public dispute between the family of Ulysses S. Grant and an undertaker from Saratoga Springs, N.Y., who showed up, apparently sauced, to take charge of the former president’s body on July 23, 1885. Not surprisingly, the Grant family declined to pay his bill (an “exorbitant and unjust” $500), and the whole sorry episode became the subject of a Times article.
That was when the undertaker, one Ebenezer Holmes, sued The Times for libel, joining the long parade of unhappy people who have lodged libel complaints against The Times over the course of the paper’s 167-year history.
While the Holmes case long ago faded into oblivion, it still captures the essence of a libel claim: A person dissatisfied with his portrayal in the paper comes to court to make the case that the article was false, his reputation has been harmed and only an award of damages can set things right.
Much has changed about libel in the 130 years since undertaker Holmes undertook to sue The Times. For one thing, libel litigation has become relatively rare, at least for The Times. For example, between 2010 and 2017, The Times had 11 libel suits, all but one of them filed in the United States. The plaintiffs have ranged from college professors and a coal industry magnate to a junior high principal, a onetime candidate for vice president and an F.B.I. informant. The one case filed abroad was brought in Moscow by a close Putin chum. No surprise how that one turned out: We lost.
The Times has fared slightly better in the United States: The newspaper has not lost a libel case brought over one of its articles for at least 50 years. Much of the legal credit for that goes to a Times court decision that has not been forgotten: Times v. Sullivan, the 1964 Supreme Court opinion that revolutionized the law of libel.
Sullivan was a 9-0 smackdown of plaintiffs who saw libel suits as a legal extortion racket to be used to silence publishers. L.B. Sullivan, the plaintiff, was a police commissioner in Montgomery, Ala. He sued The Times over an ad from supporters of the Rev. Dr. Martin Luther King Jr., who had bought space in the paper to protest the violence being visited upon civil rights demonstrators in the South — in particular, the police misconduct during a protest in Montgomery.
Sullivan claimed that the ad had besmirched his good name (even though he wasn’t mentioned) and persuaded an Alabama jury to hit The New York Times with a $500,000 verdict. It was one of dozens of libel suits being used by Southern power brokers to try to silence the press.
By the time the case reached the Supreme Court, the justices had seen enough. “This technique for harassing and punishing a free press — now that it has been shown to be possible — is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers,” one of the justices wrote.
The court famously held that public officials, and later all public figures, would need to show not just that an article was inaccurate and hurt their reputation, but also that the publisher acted with “actual malice” — with reckless disregard for the truth. It is a demanding standard, effectively requiring plaintiffs to show that editors knew a story was false, or had serious doubts about its accuracy, and published it anyway.
Sullivan led to a series of other court decisions that curtailed the ability of libel plaintiffs to win their lawsuits. None of it was intended to be a balancing. It was an imbalancing, a conscious decision by the courts to free journalists to pursue the truth without fear of triggering a lawsuit that could bankrupt their publisher. The Sullivan decision, like the First Amendment itself, was anchored in the belief that competing voices rather than lawsuits were the best way to get at the truth. The Times has long believed that as well. Its policy of not paying money to plaintiffs to settle libel suits in the United States against the newspaper traces back to a 1922 letter written by the publisher.
As powerful as Sullivan has been in curbing libel suits, it doesn’t really change the way newspaper lawyers go about their jobs. We still want to know whether the undertaker was really drunk and how our reporters came to know that. No lawyer here has ever reviewed a story draft, concluded it was a factual wreck and then declared it was good to go because the reporter didn’t have a reckless disregard for the truth. Whatever the Supreme Court may have said in Sullivan, getting it right is still what matters.
At The Times, Legal is asked every day to review articles and videos in advance of publication. Over time, trends emerge. We will almost always be focused on a story’s minor players, who tend to be the people most likely to sue. They are often unhappy to be in an article about someone else’s misconduct, have grievances about context or feel they should have been given more of a say. We spend lots of time considering the line between opinion (which is legally protected) and fact (which can give rise to a libel suit). And nothing more bedevils lawyers and editors than claims for “libel by implication” — when the facts may be right but a plaintiff says that the story implied something defamatory.
Undertaker Holmes’s case involved no such legal subtleties. At trial, The Times tried to prove he was drunk. That didn’t work out so well. Holmes won a $3,500 verdict. The Times soldiered on and finally got the verdict set aside on appeal — after nine years of litigating. Then as now, the decision makers at The Times thought the journalism was worth defending.
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David McCraw is vice president and deputy general counsel of The New York Times.
