Vol. 34 No. 01 (January 2024) pp. 9-11

ACTUAL MALICE: CIVIL RIGHTS AND FREEDOM OF THE PRESS IN NEW YORK TIMES V. SULLIVAN, Samantha Barbas. Berkeley: University of California Press, 2023. 290 pp. Cloth $ 29.95. ISBN: 9780520385825.

Reviewed by Cary Federman., Department of Justice Studies. Montclair State University. Email:

In 1960, the New York Times published an advertisement, “Heed Their Rising Voices,” written by an ad hoc committee called the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. Through the advertisement, the Committee sought to expose police misconduct that occurred during a sit-in at a lunch counter in Montgomery, Alabama. The advertisement, however, contained a number of falsehoods, and, by inference but not by name, it implied that the Commissioner of Public Safety in Montgomery, Lester Bruce (L.B.) Sullivan, was responsible. Sullivan sued for libel in state court and won a $500,000 award, “the largest libel verdict in the state’s history,” according to Samantha Barbas (p. 2). Both the press and civil rights organizations regarded Sullivan’s victory as a threat to the First Amendment. Civil rights organizations feared reprisals for any criticisms they may make against governmental officials. The press was concerned that other large-sum awards might follow, which would have a “chilling effect” on the freedom of the press. The scope of such awards would prevent journalists from investigating racial conflict in the South or public officials anywhere. Should the Alabama court’s ruling stand, Justice William Brennan wrote for a unanimous Court in New York Times v. Sullivan, the nation’s commitment to “uninhibited, robust, and wide-open” debate would collapse.

Samantha Barbas, a law professor at the University of Buffalo, and a well-regarded scholar of press and speech freedoms, has written a general history of New York Times v. Sullivan. The case lends itself to an interdisciplinary approach. The legal issues are complex, but the case began over an attempt to desegregate lunch counters; Sullivan’s trial was racially segregated; and to say that the trial judge had Confederate sympathies is to put it mildly. As Barbas demonstrates, it is impossible to separate the legal issues from the civil rights movement’s focus on desegregation, integration, and political equality.

Libel is the written defamation of character. There are four kinds: blasphemous, pertaining to religious institutions or persons; obscenity, relating to moral concerns; private, involving individuals; and seditious, concerning libel against the state or state officials. Sullivan is a private libel case involving the defamation of Sullivan’s character. But the Court treated the case as part seditious libel and part private libel. In other words, the decision holds that the First Amendment prohibits the punishment of criticism of state officials absent a showing of “actual malice.” The decision was not based on precedent or historical experience in the states, but on what Justice Brennan called the “court of history.” What was “once left to the states was now nationalized” (p. 220), Barbas writes. Sullivan represents a new development in law, part of the Warren Court’s revolution in federalism. “Before 1964,” Barbas writes, “a person who sued for libel didn’t have to prove the statement in question to be false” (p. 15). Injurious words were, by themselves, evidence of defamation of character. Thus, there was no expectation, either by Sullivan or his lawyer, M. Roland Nachman, that Sullivan would lose on appeal. But the fact that the advertisement did not mention Sullivan by name and that Sullivan could show no harm to his reputation – coupled with racial segregation in the South, the Southern states’ defiance of federal law, and the impending passage of the Civil Rights Act of 1964 – provided the Court with a Marbury v. Madison moment: they could emphatically say what the law of libel is, eliminate or reduce Southern pressure on Northern newspapers, and the states would have to follow.

Barbas handles these issues well. She provides instances of courtroom drama, describes biographical details of important figures from law, journalism, and the civil rights movement, highlights the role of Southern anger at the Northern and liberal New York Times, explains the civil rights movement’s role in the case through archival material, and provides a good summary of the Supreme Court’s deliberations that led to the New York Times’ victory.

This is neither the first nor the only book on New York Times v. Sullivan, and Barbas’s book is not fundamentally different from them. In cases in which there are numerous books on the same topic, it is usual for scholars to provide readers with a bibliographic essay, either in a preface, introduction, or at the end of the book, to mark differences in emphasis or approach. However, Barbas does none of these things. She mentions the three most prominent books on New York Times v. Sullivan in footnote 12 of chapter 1. Anthony Lewis’s Make No Law (1991) is an homage to Justice Brennan but also a thorough account of the legal aspects of the case (Lewis covered the case as a reporter for the Times). For those interested in the legal aspects of libel, Lewis’s book provides more information on its history than Barbas’s book does. (Leonard Levy’s The Emergence Of A Free Press (1985) provides even better coverage of the origins of libel in the United States; Barbas, unfortunately, doesn’t mention it.) Kermit Hall and Melvin Urofsky’s New York Times v. Sullivan: Civil Rights, Libel Law, And The Free Press (2011), goes over the same ground as Lewis’s and Barbas’s books, but provides more insight into Southern politics and the civil rights movement than Lewis’s account, and offers a more nuanced account of the Southern position on Sullivan than Barbas does. Aimee Edmondson’s In Sullivan’s Shadow: The Use And Abuse Of Libel Law During The Long Civil Rights Struggle (2019) situates the case within the intersection of race, law, and journalism. Barbas also mentions a couple of books on the civil rights movement that are pertinent to understanding ISullivan, but fails to note Communications scholar W. Wat Hopkins’ Actual Malice: Twenty-Five Years After Times V. Sullivan (1989), which provides an interesting and revisionist account of the actual malice rule Brennan relied on to upend the states’ libel laws.

Barbas argues that her book, unlike the others, relies upon archival material relating to legal strategies and the civil rights movement, and that is what sets it apart. It is difficult to say what the added value of that research is. All four books arrive at the same conclusion, that the Court was right to nationalize libel law, and that Sullivan’s strategy was not to regain his reputation but to prevent Northern newspapers from investigating Southern civil rights violations. All four authors are unsympathetic to Sullivan’s defamation claim, even as they each note that, under existing law, Sullivan was defamed. All four authors also discuss the future of libel law, though Barbas doesn’t spend as much time on this as Lewis and Hall and Urofsky do; nor does Barbas address in depth the problem of reputations and sensationalism that Sullivan created, as Lewis and Hall and Urofsky do. And all four authors share Justice Brennan’s selective and Whiggish history of the Sedition Act of 1798, i.e., that it was unconstitutional under the Warren Court’s understanding of the First Amendment and that is all that matters for constitutional law. But none of the authors seem aware that Levy’s The Emergence Of A Free Press clearly demonstrates that Brennan’s “court of history” interpretation was wrong, that the Jeffersonian attack against the Sedition Act of 1798 was as partisan and sectional as it was philosophic, and that Thomas Jefferson, the great critic of the federal Sedition Act, used his state’s sedition laws to stifle criticism against him and his allies.

As readers can see, there are many good books on this important topic and a number of ways to approach it. What the books on New York Times v. Sullivan lack in intellectual diversity, they make up by focusing on important (and previously ignored) topics central to Sullivan’s meaning. I leave it to readers to choose the best among them. Barbas has written a good legal and historical overview of these issues. Most important, the book should be used in interdisciplinary law and history courses related to the civil rights movement and the freedom of the press.


Edmondson, Aimee. 2019. In Sullivan’s Shadow: The Use and Abuse of Libel Law During the Long Civil Rights Struggle. Amherst, MA: University of Massachusetts Press.

Hall, Kermit, and Melvin Urofsky. 2011. New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press. Lawrence, KS: University Press of Kansas.

Hopkins, W. Wat. 1989. Actual Malice: Twenty-five Years after Times v. Sullivan. New York: Praeger.

Levy, Leonard. 1985. The Emergence of a Free Press. New York: Oxford University Press.

Lewis, Anthony. 1991. Make No Law: The Sullivan Case and the First Amendment. New York: Random House.
© Copyright 2024 by author, Cary Federman .