LULU GARCIA-NAVARRO, HOST:
U.S. Supreme Court Justice Clarence Thomas sent shockwaves through the legal and media worlds this week, when he said the court should revisit one of its landmark decisions about freedom of the press. It's the 1964 case New York Times vs. Sullivan.
SONJA WEST: It's considered quite widely and universally to be at the core of our modern First Amendment rights.
GARCIA-NAVARRO: As Sonja West, a law professor at the University of Georgia, helps us explain, before that case was decided, a patchwork of state libel and defamation laws meant journalists were at risk of being sued.
WEST: Any kind of even minor or honest mistake could, potentially, set someone up for a debilitating financial judgment. And the First Amendment, at least, at the time, would not offer any kind of protection.
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WEST: It's important to remember that the Sullivan case was decided in the midst of the civil rights movement.
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UNIDENTIFIED REPORTER #1: Negro demonstrations in the North have made it clear that the revolution is national in scope.
WEST: We had newspapers who were covering these marches. And they were covering these speeches.
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MALCOLM X: We want justice by any means necessary. We want equality by any means necessary.
WEST: And they were also covering the police brutality that was coming in response to these protests. And because of them the entire nation was getting to see what was really going on.
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WEST: In response to this, some government officials, particularly those in the southern states, started to turn to the libel laws to use as a weapon to silence their critics.
GARCIA-NAVARRO: Which brings us to the Sullivan case. L.B. Sullivan, the public safety commissioner for the city of Montgomery, Ala., sued the New York Times over an ad they ran, which criticized the way protesters had been treated in Alabama.
WEST: It turned out that there were some errors in this advertisement. So an Alabama jury not only sided with Sullivan, but they awarded him a half-million-dollar verdict.
GARCIA-NAVARRO: The Times appealed. And eventually, the case went to the high court.
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UNIDENTIFIED REPORTER #2: New York Times Company decision reverses L.B. Sullivan.
GARCIA-NAVARRO: After hearing the arguments, the Supreme Court issued its decision in favor of the newspaper.
WEST: But it didn't just stop there.
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WEST: It went beyond saying that the newspaper was not defamatory and, actually, recognized for the first time that there was a significant First Amendment interest that was at play in these types of cases - this necessity of a robust, public debate about the people and the policies of our government.
GARCIA-NAVARRO: The court said the Constitution protects news organizations who are reporting on public officials, even if they make errors, as long as the media aren't being reckless or knowingly spreading falsehoods.
WEST: This is known in the legal world as actual malice. And it's a very difficult standard for plaintiffs to meet. So now they were free not only to write and cover on the civil rights movement, but they could cover the protests against the Vietnam War...
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UNIDENTIFIED REPORTER #3: Military police contain the crowd, but clashes soon break out.
WEST: ...Could cover even the president of the United States in the Watergate scenario.
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RICHARD NIXON: I shall resign the presidency effective at noon tomorrow.
WEST: We saw a press that was free and able to aggressively and closely scrutinize our government.
GARCIA-NAVARRO: That brings us to this past week and a libel suit that came before the court. The court declined to hear it, but Justice Thomas took the opportunity to voice his skepticism about the Sullivan decision.
WEST: It was very surprising.
GARCIA-NAVARRO: Thomas said the court should reconsider the landmark ruling.
WEST: Because he says that the Sullivan holding doesn't comport with the original understanding of the meaning of the First Amendment at the time it was ratified. Now, this is in line with Justice Thomas's general approach to constitutional interpretation called originalism that says that the Constitution should be interpreted today as it was understood by the founding generation.
GARCIA-NAVARRO: Thomas is the only justice to openly question the Sullivan case for now. But Sonja West says it's not out of the question that his argument could eventually gain traction in conservative legal and political circles. If that happens, she says, news outlets might be opened up again to the threat of debilitating lawsuits.
WEST: It might become nearly impossible for many, if not even most, news organizations to continue to report on the government with the same kind of close scrutiny that we've come to expect. There would be a very big risk of a chilling effect among, in particular, the press but, really, all government critics.
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GARCIA-NAVARRO: That was Sonja West, a professor at the University of Georgia law school.
(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.
