Landmark free speech cases Sullivan & Tinker facing erosion after 50 years?

First Amendment

By: Lisa Hoover

Clarence Thomas
Clarence Thomas

Last month Supreme Court Justice Clarence Thomas, one of the more conservative members of the court and an originalist, called for the reconsideration of the landmark New York Times v. Sullivan case. The 1964 case, citing the 1st Amendment, made it harder for public officials to prevail in libel suits.

Thomas argued that the case was based on public policy decisions, rather than the constitution. The case “and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” he said in a concurring opinion in the McKee v. Cosby case.

New York Times v. Sullivan held that a “public official” cannot be awarded damages for defamation unless he proves “actual malice,” another way of saying he or she must show that the statement was made knowing that it was false or with reckless disregard for whether or not it was false. This made it harder for public officials to sue for defamation.

The newspaper ad at issue in the Sullivan case. From the National Archives & Records Administration.
The newspaper ad at issue in the Sullivan case. From the National Archives & Records Administration.

The Sullivan case arose after an official in Montgomery, Alabama sued over an advertisement in the New York Times. The ad included statements, some of which were false (although minor), about police actions against students who participated in a civil rights demonstration and against a leader of the civil rights movement.

Thomas argues that the 1st Amendment didn’t limit the authority of states to allow public officials to sue for libel. “We did not begin meddling in this area until 1964, nearly 175 years after the 1st Amendment was ratified,” he said. He goes on to argue that it should be left to the states how to regulate libel suits.

The New York Times points out that Thomas’s opinion follows a period of complaints by President Trump that libel laws make it too hard for public officials to sue. “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” Mr. Trump said on the campaign trail. “We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected,” The Times quotes him as saying.

It’s also worth noting that Trump’s appointees, Gorsuch and Kavanaugh, have expressed support for libel protections while on appellate courts. In fact, Gorsuch stated that minor inaccuracies in a news report won’t serve as the basis for a libel suit. Kavanaugh has said that posing “provocative questions” generally isn’t enough for a libel suit either.

Mary Beth Tinker speaking at a podium
Mary Beth Tinker, one of the students in the Tinker case, in 2014. Photo credit to Eli Hiller.

Meanwhile, the Tinker v. Des Moines celebrated its 50th birthday February 24, but has faced erosion over the years. Siblings Mary Beth and John Tinker were suspended from school for wearing black peace armbands to protest the Vietnam War. The US Supreme Court ruled 7-2 in favor of the students under the 1st Amendment, according to the ABA Journal. The case held that students do have free speech rights at school.

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech and expression at the schoolhouse gate,” Justice Abe Fortas wrote for the majority. “Undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

In the years since, more conservative courts have created exceptions to the Tinker ruling. In the Bethel case, the court created an exception for speech that was vulgar or lewd. Hazelwood allowed regulation of speech school officials had a “legitimate reason to regulate” and Morse allowed restrictions on speech that promoted the illegal use of drugs.

However, when these cases don’t apply, the Tinker rule stands. “It’s upsetting to see how the Tinker ruling has been chipped away, but the overall idea of Tinker remains: that young people do have free speech rights in school and that their input and humanity should be respected,” Mary Beth Tinker says.

The OIF Blog has previously discussed challenges to student free speech, such as here, here and here. We’ve also discussed the importance of a free press and the ability to criticize the government, such as here and here. These issues continue to be relevant today. President Trump continues to question the integrity and value of the news media, and campus speech continues to be an issue of national concern, as highlighted by Trump’s recent announcement that he would sign a free speech executive order regarding college campuses and federal aid.

Therefore, the erosion of any free speech case, particularly those involving the press or speech on educational campuses, raises concerns for the library profession. Free expression, free access, and resisting censorship are core principles of the library profession and the Library Bill of Rights.

A free press – including one free from the fear of unreasonably burdensome lawsuits – is an important bulwark to values libraries embrace, including transparency and social justice. Making lawsuits against the press too easy may have a chilling effect leading to self-censorship, something that should be a concern to anyone who values free speech and transparent government.

Likewise, student free speech is a central concern for any librarian working in a school or academic library. Encouraging students to think broadly is, in my view, a core goal of any educational institution, especially a library. The ability to think broadly has to come with the ability to discuss controversial ideas freely to be effective.

Certainly any case should be subject to review as needed, especially after 50 years. However, a central purpose to the common law legal tradition is stability and the ability to rely on past case law to inform our daily lives. Any change that lessens our ability to speak freely should be subject to significant scrutiny and skepticism, and anyone who values free speech should be watching for changes in this area of law.



Lisa HooverLisa Hoover is a Public Services Librarian at Clarkson University and an Adjunct Professor in criminal justice at SUNY Canton. In addition to her MLS, Lisa holds a JD and an MA in political science. She began her career as an editor and then manager for a local news organization, adjunct teaching in her “spare time.” She teaches courses in criminal procedure, criminal law and constitutional law. She is passionate about 1st Amendment issues. She recently began her career as a librarian, starting at Clarkson University in June 2017 teaching information literacy sessions and offering reference services. Lisa and her husband Lee live in Norwood, New York with their cats Hercules, Pandora and Nyx and pug-mix Alexstrasza (Alex). Find her on Twitter @LisaHoover01.

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