New York Times vs.
Sullivan 50 Years L ater
Celebrating A Free Speech L andmark
Friday, October 3, 2014
Welcome
It is our great honor to welcome everyone to the University of Oregon
to celebrate the 50th Anniversary of the landmark case, New York Times v.
Sullivan. The Sullivan decision is well known for dramatically altering the
law of defamation and for sparking widespread debate about constitutional
protections for individuals and the press in a variety of situations. Crucial to
these inquiries was the question of the meaning of the First Amendment’s
Press Clause.
For the past 50 years, scholars, journalists, practitioners and the
justices themselves have struggled with how to define the role of the Press
Clause and how to determine its relationship to the Speech Clause. The policy
questions associated with this relationship endure.
To mark the 50th anniversary of New York Times v. Sullivan, we are
proud to bring together this esteemed group of attorneys, judges, scholars,
journalists, and practitioners to continue this discussion of Sullivan and its
impact over the next 50 years. We are especially honored to welcome Professor
Ronald K. L. Collins, who will deliver the keynote address.
Special thanks go to Kyu Ho Youm Jonathan Marshall First
Amendment Chair, Professor Ofer Raban, and Mike Fancher for organizing
this conference. We are grateful to all of you for your participation, and we are
eager to join you in expanding our understanding of the Press Clause and of
what the First Amendment represents in today’s digital world.
Sincerely,
Julianne Newton
Interim Edwin L. Artzt Dean and
Professor, School of Journalism and
Communication
October 3, 2014 - Page 2
Michael Moffitt
Dean and Phillip H. Knight Chair,
School of Law
Schedule
8:00-8:30 a.m.
Registration
All sessions will be held in Room 175 at the UO
School of Law
8:45-9:00 a.m.
Opening Remarks
Michael Moffitt, Dean and Phillip H. Knight Chair UO
School of Law
9:00-9:50 a.m.
Keynote Address: The Anatomy of a Great Case: The
People Behind the Precedent
Prof. Ronald K.L. Collins, University of Washington School of Law
9:50-10:00 a.m.
Break
10:00-10:50 a.m.
NYT v. Sullivan: Has it Withstood the Test of Time?
Moderator: Prof. Ofer Raban, UO School of Law
Panel:
Prof. Stephen Wermiel, American University,
Washington College of Law
Attorney Bruce Johnson of Davis Wright Tremaine
Attorney Ashley Messenger, NPR and American
University School of Communication
11:00-11:50 a.m.
Oregon Law: Things Are Different Here
Moderator: Prof. Carrie Leonetti, UO School of Law
Panel:
Justice Jack I. Landau, Oregon Supreme Court
Judge David Schuman, Oregon Court of Appeals
Attorney Charles Hinkle of Stoel Rives, LLP
12:00-1:00 p.m.
Break for Lunch
1:00 – 1:45 p.m.
Afternoon Keynote: The Press in Unprecedented Times
Former Executive Editor Mike Fancher, Seattle Times
and Interim Director at SOJC George S. Turnbull Portland
Center
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2:00-2:50 p.m.
International & Comparative Law: Still Resonating
Abroad?
Moderator: Prof. Ibrahim Gassama, UO School of
Law
Panel:
Attorney Paul Schabas, Blake, Cassels & Graydon
LLP
Attorney Charles J. Glasser Jr., Bloomberg News
Prof. Kyu Ho Youm, Jonathan Marshall First
Amendment Chair, SOJC
2:50-3:00 p.m.
Break
3:00-3:50 p.m.
Journalism Practice and Teaching: Breathing Space
for an “Uninhabited, Robust, and Wide-Open” Press?
Moderator: Prof. Tim Gleason, UO School of
Journalism and Communication
Panel:
Les Zaitz, The Oregonian
Brent Walth, Willamette Week
Tom Bivins, John L. Hulteng Chair in Media Ethic,
SOJC
4:00-4:15 p.m.
Closing Remarks
Julianne Newton, Interim Edwin L. Artzt Dean
UO School of Journalism and Communication
4:15-4:45 p.m.
Reception
Location: Wayne Morse Commons
October 3, 2014 - Page 4
Master of Ceremonies
Peter Laufer
Peter Laufer is the James Wallace Chair in
Journalism at the University of Oregon School of
Journalism and Communication.
An international news correspondent,
editor, broadcast journalist and award-winning
author, he has written over 18 books and frequently
combines his scholarly and professional work, and
he served as editor of the anthology text Interviewing:
The Oregon Method. He is a former NBC News
Correspondent, has served as news and program director of WRC Radio in
Washington D.C., was founding program director of Newstalk 93.6 in Berlin
and acted as management consultant to several international news broadcasting
projects, including National Geographic, Washington Monthly and Mother
Jones radio programs. He has managed a variety of book publishing and
documentary film projects along with journalism education initiatives in the
Middle East for UNESCO and USAID.
Most recently, Laufer helped establish and co-directs the UOUNESCO Institute for Conflict Sensitive Reporting and Intercultural
Dialogue.
Laufer was honored with the SOJC’s Jonathan Marshall Award for
Innovative Teaching in 2012.
“ We are in the midst of one of the most exciting periods in journalism
history. Today’s journalism students and journalists enjoy the opportunity and
responsibility to redefine our profession regarding news delivery and financial
revenue. What a grand creative challenge and adventure!” says Laufer.
Page 5 - Sullivan Conference 2014
Biographies
Tom Bivins
Tom Bivins is the John L. Hulteng Chair in Media
Ethics, the Area Director in Media Studies and
the head of the Graduate Certificate Program in
Communication Ethics.
He spent six years as a broadcast specialist
in Armed Forces Radio and Television and has
worked in advertising, corporate public relations,
and as a graphic designer and editorial cartoonist.
He received his BA in English and his MFA in Creative Writing from
the University of Alaska, Anchorage, and a Ph.D. in Telecommunication from
the University of Oregon. He is the author of numerous research articles and
college texts.
Ronald K.L. Collins
Ronald Collins is the Harold S. Shefelman scholar
at the University of Washington Law School.
He was a Supreme Court Fellow under Chief Justice
Warren Burger and a law clerk to Oregon Supreme
Court Justice Hans Linde.
He is the book editor at SCOTUSblog
and a permanent contributor to the Concurring
Opinions blog where he writes a weekly First
Amendment News column.
Collins is the author, co-author, or editor of nine books including:
•
Artificial Speech: Robotics & The Future of Free Speech Law (forthcoming
2015)
•
When Money Speaks: The McCutcheon Case, Campaign Financing Laws, and
The First Amendment (2014)
•
On Dissent: Its Meaning in America (Cambridge U. Press, 2013)
•
Nuance Absolutism: Floyd Abrams & the First Amendment (Carolina
Academic Press, 2013)
•
We Must not be Afraid to be Free (Oxford U. Press, 2011)
October 3, 2014 - Page 6
•
The Fundamental Holmes (Cambridge University Press, 2010)
He has authored over 60 scholarly articles including publications in:
•
Harvard Law Review
•
Stanford Law Review
•
Supreme Court Review
•
Michigan Law Review
•
Texas Law Review, among other publications
He has also authored over 250 articles in the popular press including
publications in the New York Times, Washington Post, Los Angeles Times,
and in the Washington Times.
In 2003, Collins and others successfully petitioned the governor
of New York to posthumously pardon Lenny Bruce. The following year he
received the Hugh M. Hefner First Amendment Award. In 2010, Collins was
a fellow in residence at the Norman Mailer Writers Colony in Provincetown,
Massachusetts.
In 2011 he received the Supreme Court Fellows’ Administration of
Justice Award “in recognition of his scholarly and professional achievements in
advancing the rule of law.”
And in 2012, the American Society of Legal Writers awarded him a
Scribes Book Award (bronze) for We Must not be Afraid to be Free.
Mike Fancher
Appointed in 2014 as Interim Director for the
George S. Turnbull Portland Center, Mike Fancher
brings a unique combination of professional skill,
innovation leadership and understanding of higher
education. Mike is a School of Journalism and
Communications alumnus and former member of
the Journalism Advancement Council (JAC).
Fancher retired from The Seattle Times in
2008, after 30 years. He served as the newspaper’s
executive editor for 20 years during which it won four Pulitzer Prizes and was
a Pulitzer finalist 13 other times. Fancher’s focus is on re-imagining journalism
for an interactive world. The core components of this are ethics, innovation
and civic engagement.
Primarily based in Portland, Mike has quickly become fully engaged
at both the George S. Turnbull Center and in Eugene at Allen Hall.
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Ibrahim Gassama
Professor Gassama has been heavily involved in
issues surrounding human rights, foreign policy, and
international economic development. These issues
led him to recruit and train observers of elections
in Haiti and South Africa, including South Africa’s
first all-race democratic election. In some cases,
he served as an observer himself. Afterward, he
supervised reports from the governmental agencies
involved in the elections. Gassama has also worked
as a staff attorney for the Legal Action Center in New York, representing
clients on employment discrimination issues.
From 1985 to 1990, Gassama worked on human rights, foreign policy,
and international economic development issues for TransAfrica, the African
American lobby for Africa and the Caribbean. In 1994 Gassama coordinated
the recruitment, training, and deployment of U.S. based nongovernmental
observers participating in South Africa’s first all-race democratic election.
Gassama supervised the preparation of reports on the work of the South
African Independent Electoral Commission and participated in two electionobserver delegations composed of American and African lawyers.
Gassama’s academic interest focuses on problems of international
order; the changing role of international institutions in the post Cold War era;
and the interrelationships among human rights, environmental degradation,
and economic development.
Charles J. Glasser
Charles Glasser spent twelve years as the Global
Media Counsel for Bloomberg News, where he
was responsible for pre-publication review, ethics
issues, and training more than 2,200 reporters in
more than 120 bureaus around the world on legal
issues and journalistic fundamentals, particularly
focusing on investigative and business news. He
also managed media litigation globally, and is
acknowledged as an expert in international media
October 3, 2014 - Page 8
law. He is the author and editor of “The International Libel and Privacy Handbook ”
(Third Edition, 2013, John Wiley and Sons) and is a regular panelist and
contributor for several media law and journalism organizations including The
Media Law Resource Center, The Committee to Protect Journalists, and the
Media Law Defence Institute (UK).
Mr. Glasser also served as the news organization’s ombudsman,
and was responsible for managing complaints, corrections and interacting
with public relations and investor relations professionals who sought input
into Bloomberg content, both before and after publication. Prior to joining
Bloomberg, Mr. Glasser represented a wide variety of general circulation
publications including Reader’s Digest, the New York Post, Star Magazine, and
others.
Before studying law, Mr. Glasser was a journalist from 1979 to 1992,
covering spot news, combat correspondence and enterprise reporting for daily
newspapers and wire services, filing stories from El Salvador, Cuba, Haiti,
Miami, Nicaragua, Great Britain and India. He later studied law at the New
York University School of Law, and started his legal career at NBC News,
working on Dateline and NBC Nightly News.
His personal interests include restoration of vintage Jaguar
automobiles and he is an accomplished blues and jazz guitarist. He is also
involved in The Prem Rawat Foundation’s “Food for People” program, a
501(c)3 charity that builds fresh water wells and has established food centers
across India and sub-Saharan Africa. He is currently managing his own
consultancy, providing legal and media ethics advice to publishers, managing
Freedom of Information litigation and providing content and privacy
guidelines to web-based startups.
Tim Gleason
Tim Gleason is a Professor in the University of
Oregon School of Journalism and Communication,
where he served as dean from 1997 to 2013, and
he is the incoming University of Oregon Faculty
Athletics Representative. During his tenure as the
first Edwin L. Artzt Dean, Gleason helped the
SOJC advance in a number of areas including:
substantially increased both student enrollment and
faculty size, increased the School’s endowment from
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$6.7 million to about $43.4 million, opened the George S. Turnbull Portland
Center including two new journalism master’s programs there, and an 18
month-long, $15-million renovation and expansion of Allen Hall.
He led the overhaul of the undergraduate curriculum to be
increasingly digitized and established a program in which UO seniors
participate in a professional journalism experience in Portland.
He won several awards during his time as a University of Oregon
administrator, including the 2012 Charles E. Scripps Award as journalism
and mass communication administrator of the year. As a faculty member,
he has won the SOJC’s Marshall Award for Innovative Teaching in 1990.
He has published two books and articles in law and history journals. He has
professional experience as a photographer and reporter in the print media.
Gleason’s research background is in theory, history and practice of
freedom of the press. He is currently engaged in research focusing on state
public records and meetings laws and on the legal and ethical issues related to
the concepts of journalism and journalists.
Charles Hinkle
Charles Hinkle is a graduate of Stanford University
and Yale Law School. A retired partner at Stoel
Rives LLP, he taught constitutional law at Lewis
& Clark Law School for many years, and is past
chairman of the Oregon State Bar Constitutional
Law Section. He has represented The Oregonian,
The New York Times, the Associated Press,
and other media entities in many cases involving
public records, access to court proceedings, and
defamation. In 2011, the ACLU of Oregon created the “Charles F. Hinkle
Distinguished Service Award” to honor individuals for their civil liberties
work, and in 2012, the American Constitution Society gave Hinkle its “Justice
Hans Linde Award” for his civil liberties work.
October 3, 2014 - Page 10
Bruce E. H. Johnson
Bruce Johnson, a veteran litigator, represents
information industry clients on issues involving
media and communications law as well as
technology and intellectual property matters. His
expertise includes advising on First Amendment law
issues, particularly involving commercial speech,
commercial transactions and consumer rights. The
author of Washington’s Reporter’s Shield Law,
enacted in 2007, Bruce also works extensively on
journalist privilege issues, regularly defending reporters, editors and other
members of the media. He also represents national clients in privacy and
security matters, advertising liability risks, defamation and online liability
cases. He is also the author of the Washington Act Limiting Strategic Lawsuits
Against Public Participation (“Washington Anti-SLAPP Law”), which was
enacted in 2010, and Washington’s Uniform Correction or Clarification of
Defamation Act, enacted in 2013. Finally, he is the co-author of the major
national treatise on commercial speech and the First Amendment: Steven
G. Brody and Bruce E. H. Johnson, Advertising and Commercial Speech: A First
Amendment Guide (2d ed. 2014).
Jack L. Landau
Hon. Jack L. Landau is an Associate Justice of
the Oregon Supreme Court. Before his election
to that court, he served as a judge on the Oregon
Court of Appeals for 18 years. Justice Landau
has been a member of the adjunct faculty at
Willamette University College of Law for 21 years,
where he teaches legislation. He is a member of
the Oregon Council on Court Procedures, the
Oregon State Bar Professionalism Commission,
and the Constitutional Law Section Executive Committee and was an editor
of the state bar’s publications, Interpreting Oregon Law and Oregon Constitutional
Law. He is also the author of a number of law review articles on statutory
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interpretation and state constitutional law. He received his B.A. from Lewis
and Clark College, his J.D. from Northwestern School of Law of Lewis and
Clark College and an LL.M. from the University of Virginia School of Law.
Carrie Leonetti
Professor Leonetti is an Associate Professor of
Constitutional Law, Criminal Procedure, and
Evidence and the Faculty Leader of the Criminal
Justice Initiative at the University of Oregon School
of Law in Portland. Prior to joining the academy,
she was an Assistant Federal Defender in the
Eastern District of California, an Assistant Public
Defender in the Appellate Division of the Office of
the Maryland Public Defender and a member of the
ABA Criminal-Justice Standards DNA Task Force.
She teaches classes in federal jurisdiction, constitutional criminal
procedure, mental health and forensic science. She is also the faculty supervisor
for Criminal Practice Externships. Her scholarship focuses primarily on
privacy and search and seizure, prosecutorial charging, the effectiveness of
defense counsel, and comparative criminal procedure and international ruleof-law reform.
Ashley Messenger
Ashley Messenger, a former radio talk show host, is
the in-house First Amendment and media lawyer at
NPR. She has also worked for U.S. News & World
Report and the Reporters Committee for Freedom
of the Press. She teaches media law at American
Univ., has taught First Amendment law at the Univ.
of Michigan Law School and authored A Practical
Guide to Media Law.
October 3, 2014 - Page 12
Michael Moffitt
Michael Moffitt, JD, has been Dean of the UO’s
School of Law since 2011 and a member of the
faculty since 2001. Before coming to Oregon, he
served as the clinical supervisor for the mediation
program at Harvard Law School and taught
negotiation at Harvard and Ohio State. Following
a federal judicial clerkship, he spent several years
with Conflict Management Group, consulting on
negotiation and dispute resolution projects in about
twenty countries around the world. Dean Moffitt has published more than two
dozen scholarly articles on mediation, negotiation and civil procedure, and coauthored the innovative, student-focused book, Dispute Resolution: Examples and
Explanations.
Julianne Newton
Julianne H. Newton is Interim Edwin L. Artzt
Dean and professor of visual communication at
the University of Oregon School of Journalism and
Communication.
Newton is an award-winning scholar who
has worked as a reporter, editor, photographer and
designer for newspapers, magazines and electronic
media. She is author of The Burden of Visual Truth:
The Role of Photojournalism in Mediating Reality and coauthor (with Rick Williams) of Visual Communication: Integrating Media, Art and
Science, which won the 2009 Marshall McLuhan Award for Outstanding Book
in Media Ecology. Her research applies ethics and cognitive theory to the study
of visual behavior.
Newton’s honors also include the National Communication
Association Visual Communication Research Excellence Award (2004
and 2008), Marshall Award for Teaching Innovation, National Press
Photographers Association Garland Educator of the Year Award, and the
AEJMC Distinguished Contributions to Visual Communication Award. She
was editor of Visual Communication Quarterly 2001-2006. She serves on the
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editorial boards of the Journal of Communication, Visual Studies, Journal of
Mass Media Ethics, EME (Explorations in Media Ecology), Visual Resources,
International Journal of McLuhan Studies and VCQ.
She joined the University of Oregon faculty in fall 2000 after teaching
15 years at The University of Texas at Austin and two years at St. Edward’s
University in Austin.
Ofer Raban
Professor Ofer Raban teaches Constitutional Law,
Criminal Investigation, Criminal Law and Legal
Theory.
Professor Raban received his J.D. from
Harvard Law School, and his D.Phil. in legal
philosophy from Oxford University. He then
worked as a prosecutor in New York before
returning to academia. Professor Raban taught law,
among other places, at the University of Oxford and
the University of Utah.
Paul Schabas
Paul Schabas is a partner at Blake, Cassels &
Graydon LLP in Toronto. He was the counsel on
leading free expression cases in the Supreme Court
of Canada, including Grant v. Torstar, Breeden v.
Black, R. v Mentuck, Toronto Star v. Canada and
Criminal Lawyers Association v. Ontario. Adjunct
Professor, University of Toronto Faculty of Law.
Named one of Canada’s 25 “most influential”
lawyers by Canadian Lawyer (2011). Bencher, Law
Society of Upper Canada; Fellow, American College of Trial Lawyers; Past
President, Canadian Media Lawyers Association, Pro Bono Law Ontario;
Trustee, Law Foundation of Ontario; Director, Canadian Civil Liberties
Association, Osgoode Society for Canadian Legal History.
October 3, 2014 - Page 14
David Schuman
The Honorable David Schuman received a B.A.
from Stanford University, a Ph.D. in English
Literature from the University of Chicago, and a
J.D. from the University of Oregon Law School.
Subsequently he served as judicial clerk to the
Honorable Hans Linde of the Oregon Supreme
Court and then as an assistant attorney general in
the Appellate Division of the Oregon Department
of Justice.
In 1987, Schuman became a member of the University of Oregon
Law School faculty, where he taught for nine years. He was then appointed
by Attorney General Hardy Myers to serve as his Deputy Attorney General
in the Oregon Department of Justice, where he remained until 2001, when
Governor John Kitzhaber appointed him to the Oregon Court of Appeals. He
was elected to a full six-year term in 2002 and re-elected in 2008. He retired
in 2014 and will resume teaching at the University of Oregon Law School in
2015.
Brent Walth
Brent Walth, a 1984 graduate of the UO School
of Journalism and Communication, is managing
editor for news at Willamette Week, Portland’s
alternative newsweekly. He previously worked as
the State Capitol reporter for The Register-Guard,
and as Washington, D.C., correspondent and senior
investigative reporter for The Oregonian, where he
shared the 2001 Pulitzer Prize for Public Service
for its investigation into abuses by the Immigration
and Naturalization Service. Brent is a five-time winner of the Bruce Baer
Award, Oregon’s top reporting prize, and a recipient of the Gerald Loeb
Award. Brent is the author of Fire at Eden’s Gate: Tom McCall and the Oregon Story,
a biography of the state’s most influential governor, and he’s taught journalism
at UO, Portland State University and Harvard University, where he was a 2006
Nieman fellow. On November 7, Brent will be inducted into the UO School of
Journalism and Communication’s Hall of Achievement.
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Stephen Wermiel
Stephen Wermiel is a Professor of Practice
in Constitutional Law at American University
Washington College of Law. He is immediate past
chair of the American Bar Association (ABA)
Section of Individual Rights and Responsibilities
(IRR) and author of a biweekly column on
SCOTUSblog aimed at explaining the Supreme
Court to law students. He is co-author of Justice
Brennan: Liberal Champion, the definitive biography
of the late Supreme Court Justice William J. Brennan Jr.. He is also co-author
of the recently published The Progeny: Justice William J. Brennan’s Fight to Preserve
the Legacy of New York Times vs. Sullivan. Mr. Wermiel holds expertise in the US
Supreme Court, having covered the court for The Wall Street Journal from
1979 until 1991. He was a reporter for the Boston Globe from 1972 to 1979.
He earned his BA from Tufts University and his JD from the Washington
College of Law.
Kyu Ho Youm
Kyu Ho Youm is professor and the Jonathan
Marshall First Amendment Chair at the UO
School of Journalism and Communication. He has
extensively published about American and foreign
media law since the mid-1980s. His law review
articles have been cited by U.S. and foreign courts,
including the U.K. and Canadian supreme courts as
well as the Australian High Court.
October 3, 2014 - Page 16
Les Zaitz
Two-time Putlizer finalist Les Zaitz returned to
The Oregonian in 2000 as senior investigative
reporter and recently was named investigations
editor.
He specializes in complex investigations
(financial, political, terrorism) and serves as
professional coach and mentor.
He started his professional career right
out of high school, hired as a general assignment
reporter for the Salem Statesman-Journal. He continued writing as a staff
reporter and correspondent while attending the University of Oregon, working
for the Springfield News, the Oregon Journal, UPI, and The New York Times.
From 1976-1987, he was a reporter for The Oregonian, handling
various beats before taking an assignment in 1982 to the investigative team.
From 1987-2000, he was owner and publisher of the weekly
Keizertimes newspaper in Oregon.
Les has won state, regional and national journalism awards for more
than 30 years. In 2007, he was part of a team that won the prestigious George
Polk Award and was a finalist for the Pulitzer. He was a finalist for the Pulitzer
in 2014. He is a five-time solo winner of Oregon’s Bruce Baer Award, the top
state award for investigative reporting.
In his off hours, he operates the Boulder Creek Ranch, a horse/cow
ranch in Eastern Oregon with his wife, Scotta Callister.
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Abstracts
Tom Bivins
It is Legal, But is it Moral? Sullivan and the Baseline of Truth-telling
Fifty years after the fact, the finding in this case is well past the impetus of the
civil rights movement that spawned it.
My premise is that Sullivan goes too far in protecting potential untruths and
misrepresentation of facts, whether intentional or not. In the NY Times v. Sullivan case,
untruth has been given legal authority and upheld as, de facto, morally sound. However,
I take the truth as the critical determining quality for freedom of speech of all types. Given
the special license granted the press by the First Amendment, the question should be: When
facts can reasonably be ascertained, doesn’t the responsible journalist have an obligation to
provide accuracy and truth? Further, doesn’t the public have the right to demand it? And
shouldn’t the government and laws designed for public protection, insist on it? As Barron
(2007) states, “What the Sullivan Court failed to recognize is that it is not just a fearless
press that is imperative; the public needs, and the First Amendment requires, a competent
press as well.” How does this exception to the obligation of truth play out as a “moral”
law?
Ronald K.L. Collins
The Anatomy of a Great Case: The People Behind The Precedent
New York Times Co. v. Sullivan is the mainstay of modern First Amendment
jurisprudence. Perhaps more than any other case, it defines much of the mindset behind our
contemporary views of free speech in America.
But what do we know about the people who (in differing ways) helped to make
Sullivan possible?
What do we know, for example, about the iniquitous past of the judge (Walter
Burgwyn Jones) who presided over the Sullivan case at the trial level? What do we know
about the constrained drift of the jurisprudential mind of the lawyer (Herbert Wechsler)
who argued on behalf of the Times in the Supreme Court? How much do we know about
Justice Brennan’s young law clerk (Stephen Barnett) and the remarkable role he played in
the case? And what of the scholars (Alexander Meiklejohn and Harry Kalven) who helped
give Sullivan its celebrated status? Finally, what do we know about the man (Anthony
Lewis) who, more than all the rest, first rescued and then perpetuated the Sullivan story for
October 3, 2014 - Page 18
generations to come?
Surprisingly, there is much we do not know about these individuals – everyone
from the segregationist judge who fought to defeat many First Amendment civil rights claims
to the journalist whose first Pulitzer prize signaled the very free speech commitment that led
him to write Make No Law: The Sullivan Case and the First Amendment.
Know this: Law is more, much more, than the lifeless black-letter doctrines
memorized by lawyers and law students. It is the product of the struggles of men and
women who, in varying ways, strove to translate their vision of life into a vision of law.
This Lecture is a sketch of those struggles (some noble, some not) and how they shaped a
landmark free-speech precedent.
Mike Fancher
The Press in Unprecedented Times
My generation of American editors and reporters might well be called the journalistic
children of New York Times v. Sullivan. I entered college in 1964, starting on a path to
a 40-year career in journalism. My education, training and work as a journalist were
grounded in the broad safeguards to free expression provided by the landmark case.
The notion that journalists have a singular obligation to serve the general welfare
is as old as the profession itself, dating from the Progressive Era at beginning of the 20th
Century. But, the freedom and constitutional rights enshrined in Sullivan, helped coalesce
a particular sense of responsibility that guided the ethics and practices of the profession
throughout most of my career. The social responsibility of “the press” as an institution was
guided by the moral integrity and behavior of its practitioners rather than any government
proscriptions. The values of individual journalists, as well as those of news organizations,
were a good fit for the technolog y and economics of the era.
Now we are engaged in a great upheaval. Social and technological forces are
transforming our notions of what is journalism and who is a journalist. I believe the
journalistic grandchildren of the Sullivan decision will need to fully support the idea that
freedom of the press belongs to the people, not selectively to the profession of journalists. And,
they will best defend that freedom by embracing the public as full partners in all aspects of
journalism, including a re-examination of its standards.
This must be journalism of and by the people, as well as for them.
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Charles J. Glasser
“Actual Malice In Practice: Tips For Young Journalists”
Theme: The Sullivan standard protects reporters making a mistake for the right reason.
Although used for the proposition that reporters have no obligation to get their facts right,
certain common journalistic errors do raise the stakes of liability and risk of trial.”
Questions: Has Sullivan encouraged low-quality journalism? Should the ethical
standard (“to seek and report it”) be the core principle for reporters instead of “you can’t
sue me?”
a. “Knowing falsity” or “reckless disregard”
• “[R]eckless conduct is not measured by whether a reasonably
prudent man would have published, or would have investigated before
publishing. There must be sufficient evidence to permit the conclusion
that the defendant in fact entertained serious doubts as to the truth of
his publication. Publishing with such doubts shows reckless disregard
for truth or falsity and demonstrates actual malice.” St. Amant v.
Thompson”
b. Circumstantial evidence is allowed by which a
reasonable jury could find that a reporter knew it was false,
or purposefully avoided the truth.”
• Plaintiff can present proof of malice in the form of cumulative
circumstantial evidence, which is often the only way to prove malice in
libel cases. Harte-Hanks v. Connaughton”
• No editorial privilege on editor’s notes and earlier versions. Herbert
v. Lando”
c. Examples of journalistic errors where facts allowed a
jury to weigh the question:”
• Fair and True Report Errors: Misreading or using selective
quotation from government documents and leaving out exculpatory
facts. Young v. Gannett”
• Ignoring witnesses who contradict facts being published. Harte
Hanks; Richard v. Thompson”
• Personal animus against subject and lack of credibility. Sprague v.
Walter”
• Introducing previously-corrected errors into a new story. Zerangue
v. TSP Newspapers”
• Ignoring information from a source that contradicts gist or article. Barhoum and
Zaimi v. NYP Holdings”
October 3, 2014 - Page 20
• Adopting wholesale allegations from less-than-credible sources and
amplifying the defamatory statements without any investigation. Tan v. LE”
• Throwing away notes two days after publication and after getting complaint.
Murphy v. Boston Herald”
d. Discussion: Has Sullivan damaged the quality of
journalism?”
• “No Duty to Investigate: “It may be said that such a test puts a premium on
ignorance, encourages the irresponsible publisher not to inquire, and permits the
issue to be determined by the defendant’s testimony that he published the statement
in good faith and unaware of its probable falsity.” Harte Hanks”
Charles Hinkle
The Supreme Court’s use of “actual malice” in NY Times v. Sullivan can be a trap for
the unwary. In 1977, the Oregon Supreme Court said that the term was “unfortunate
and will lead to confusion because it does not mean hate, ill will or intention to harm,
which is usually termed ‘express malice,’ or ‘common law malice’ and sometimes ‘actual
malice.’” (Harley-Davidson.) In 1989, the U.S. Supreme Court agreed (Harte-Hanks
Communications), but both courts have stuck to their guns. The U.S. Supreme Court used
the term in its Times v. Sullivan sense earlier this year (Air Wisconsin v. Hoeper), and
the Oregon court used the term in its common law sense as recently as 2002. (DeLong v.
Yu Enterprises.) Libel law practitioners must deal with several other complications that
the “constitutionalization” of libel law has brought about as well: Is plaintiff a public
figure? Must plaintiff prove its case with “convincing clarity”? Is defendant a member of
the media? Did defendant’s statements involve a matter of public interest? Must a private
plaintiff prove at least “negligence” to prevail against a non-media defendant? Who has
the burden of proving falsity? Were defendant’s statements fact or opinion?
Bruce E. H. Johnson
“New York Times v. Sullivan as Process: Reviving a National Free
Speech Dialogue.”
The effect of Erie RR v. Tompkins (1938) was the immediate separation of state law
jurisprudence from federal case law, thus halting a 140-year-old dialogue on general
constitutional (including free speech) principles stretching back to the 1790s. This process
had been a very fruitful federal-state dialogue, as state and federal courts worked together
to develop basic free speech rules without regard to whether a rule originated in federal or
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state case law. In 1964, it suddenly returned, with the federalization of libel law (and the
US Supreme Court in Sullivan in effect adopting a state-based Kansas defamation privilege
which it refashioned as a principle of First Amendment jurisprudence) leading to the
transformation of state defamation laws. Over the past 50 years, in various cases applying
First Amendment privileges including presumed damages, neutral reportage, opinion, fair
report, clear and convincing, “of and concerning” and actual malice to traditional state
common law tort claims, Sullivan has led to a series of decisions extending additional
First Amendment principles to our traditional state-based legal system, and it has also
encouraged the creation of national media bar coordinating and effectuating these reforms.
Ashley Messenger
The Legacy of Sullivan: The Struggle to Develop Consistent Doctrine
Based on Principles of Political Free Speech
The NYT v. Sullivan decision played an important role in the development of speechprotective doctrine. However, the rule adopted by the Court – that public officials must
prove actual malice to prevail in libel cases – may not be consistent with the ideals of the
First Amendment from a philosophical perspective. It has led to skewed results and fails
to protect legitimate, expressive speech in certain cases, particularly “neutral reportage”
scenarios, where the statement is repeated not to persuade anyone of the truth of an
allegation, but to show that the allegation was made. Efforts to extend the actual malice
rule to speech involving private persons or other tort claims have resulted in confusion and
dissatisfaction; it has proven difficult to develop principled rationale for granting protection
to speech about those who are not public officials. There are better ways to think about
which speech should be protected, namely, by borrowing from speech act theory. The
principles set forth in Sullivan have been far more useful in other kinds of political speech
cases than in libel cases. The opinion deftly outlines the rationale for protecting political
speech, but it fails in establishing a useful, principled rule for libel law.
Paul Schabas
Uniquely American
The Sullivan decision is revered in the United States, but has not been followed anywhere
else (except the Philippines). Why not? My presentation will discuss the view of Sullivan
taken by other common law courts, including why it is inapplicable to countries with
modern constitutions that require a balancing of competing rights. Sullivan, which was
driven by its facts and the uniqueness of the First Amendment, is seen as going too far in
October 3, 2014 - Page 22
protecting speech over the competing right to protect one’s reputation. Nevertheless, Sullivan
has influenced the recent development of the new public interest defenses in the UK, Canada
and elsewhere, and has a significant impact on defamation cases involving the internet due
to the extraordinary steps taken by courts, states and now Congress to insulate Americans
from defamation verdicts inconsistent with the Sullivan principles.
David Schuman and Jack Landau
In New York Times v. Sullivan, the United States Supreme Court set the standard for libel
claims by public figures against media defendants: State common law may not permit
damage awards in such libel actions unless the plaintiff can establish that the media
defendant acted with “actual malice,” that is, with knowledge that its statements were false
or were made with reckless disregard for whether they were true or false. Thus, Sullivan,
establishes a generous amount of media free speech protected by the First Amendment.
States, however, are free to offer their citizens -- including their media citizens -- more
constitutional protections than the minimum guaranteed by the First Amendment. Oregon’s
free speech guarantee, Article I, section 8, of the Oregon Constitution, in many situations-for example, in the regulation of commercial speech--is more rights-generous than the First
Amendment. That is not the case with respect to defamatory media speech. The text of
Article I, section 8, does not distinguish between press or other media speech and other kinds
of speech. In either case, Oregon free speech jurisprudence generally prohibits any speech
regulation that focuses on the content of the speech rather than the harm that such speech
causes and, conversely, generally permits speech regulation that focuses on harm caused
by speech. Thus, Article I, section 8, provides media defendants with no special speech
liberty. Further, Article I, section 8, must be harmonized with another provision of the
Oregon Constitution: Article I, section 10, which guarantees to every person a remedy in
due course of law for injury to person, property, or reputation.. To achieve this harmony,
Oregon courts focus on a clause in the speech guarantee that states that a person may be
held responsible for abuse of free speech rights; that clause, Oregon courts have held, does
not insulate defendants--even media defendants--from libel claims, but it does insulate
defendants from punitive damage awards.
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Stephen Wermiel
The Influences of New York Times v. Sullivan
Fifty years after it was decided, New York Times v. Sullivan may be analyzed both for
its free speech impact and for its effect on libel law. As to free speech, the ruling by Justice
William J. Brennan Jr., with its commitment to free discussion of ideas, is one of the
major building blocks that has cemented the contemporary approach to free expression
under the First Amendment in which even erroneous and offensive speech may be entitled to
protection. As to libel law, the application of Sullivan’s legal standard is somewhat battlescarred after more than thirty subsequent Supreme Court rulings, but the core principle
stands that those in public life may not recover damages for published information about
them without meeting a relatively high legal burden. These two contributions – to free
speech law and to libel law – are the legacies of New York Times v. Sullivan.
Kyu Ho Youm
Sullivan’s Impact on Foreign and International Law
The First Amendment, which Sullivan has epitomized since 1964, has exerted varying
degrees of influence on Asia, Europe, Latin America, and Africa. But some commentators
in the U.S. and abroad argue that its global influence has been declining in recent years
(see, e.g., Lord Anthony Lester, “Two Cheers for the First Amendment,” keynote speech
at the 2013 convention of the Association for Education in Journalism and Mass
Communication in Washington, D.C.). Regardless, there is no question that American free
speech law still remains relevant to the rest of the world. Sullivan is a good illustration.
Over the years, a growing number of countries and international human rights courts have
considered the ethos of Sullivan in liberalizing the balance of free speech with its conflicting
social and individual interests. My presentation focuses on how Sullivan and its “actual
malice” rule have informed foreign and international law on freedom of speech and the press
as a human right.
October 3, 2014 - Page 24
Les Zaitz
Journalism Practice and Teaching: Breathing Space for an “Uninhabited, Robust, and Wide-Open” Press?
The Obama administration is setting a record as one of the most aggressive ever to pursue
leaks of government information. While reporters have yet to face criminal prosecution, the
government seems too willing to secretly examine reporters’ confidential communications to
find out who’s talking to whom.
What has this to do with the vital covenants of Times v Sullivan? The country needs
an uninhibited press to hold powerful government officials accountable without fear of
prosecution criminally or civilly. This national level drama serves up lessons for journalists
at all levels – that the freedom enshrined by Times v Sullivan can’t be just enjoyed. It must
be deployed to aggressively hold public officials at every level accountable.
In my work in Oregon, I’ve investigated such public officials, many who tried a
variety of means to collar or impair my reporting. Did I have a copy of Times v. Sullivan in
my back pocket at those times? No. But I carried the spirit of the case – the duty to exercise
that trust on behalf of a citizenry that otherwise would be left in the dark – and in the
hands of unscrupulous officials.
Page 25 - Sullivan Conference 2014
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Thank You to Our Sponsors
UO School of Journalism and Communication Jonathan Marshall First
Amendment Chair
UO School of Journalism and Communication Center for Journalism
Innovation and Civic Engagement
October 3, 2014 - Page 28
Notes
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Notes
October 3, 2014 - Page 30
Notes
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