The Page 99 Test: Samantha Barbas's "Actual Malice"

Tuesday, February 21, 2023

Samantha Barbas's "Actual Malice"

Samantha Barbas is the author of several books on media history and law, with a focus on journalism, privacy, libel, and the First Amendment. She is a Professor of Law at the

University at Buffalo and has a Ph.D. in history from the University of California, Berkeley, and a J.D. from Stanford Law School. She is the recipient of a National Endowment for the Humanities Public Scholar Award.

Barbas applied the "Page 99 Test" to her new book, Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, and reported the following:

From page 99:
The town of Bessemer launched a new tactic in the attack on the press—prosecuting reporters for criminal libel. A grand jury indicted Harrison Salisbury on criminal charges for his “Fear and Hatred” article. This illustrated vividly the state-sponsored nature of the “libel attack.” Reporters were now facing loss of their liberty for writing critically about segregationist brutality in the South.
The Page 99 Test works well. My book is on the landmark First Amendment decision from 1964, New York Times v. Sullivan. The Supreme Court declared that public officials must show “actual malice” or reckless disregard of the truth in order to win a libel suit. This freed the press to report on public officials without fear of devastating libel judgments.

Sullivan grew out of battles over news coverage of civil rights activity in the South. Segregationists waged a fierce battle against the press, hoping to thwart its coverage of the civil rights movement-- coverage that would prove critical in building support for civil rights that led to the passage of the Civil Rights Act of 1964.

Segregationists assaulted journalists, boycotted newspapers, and brought massive libel suits against the press. Before Sullivan, libel laws, which impose liability for false and defamatory statements, were strict, and there were no First Amendment protections for speakers.

In 1960, four Alabama officials sued the Times and four leaders of Martin Luther King Jr.’s Southern Christian Leadership Conference for millions of dollars over minor errors in an advertisement that accused the officials --correctly -- of being complicit in brutal attacks on civil rights protesters. These lawsuits would be meritless today, but they weren’t under the laws that existed in 1960.

Seven Birmingham officials proceeded to sue the Times for $6 million over articles that portrayed local authorities, including police commissioner “Bull” Connor, as violent and racist-- accusations that were, in fact, true.

This is where page 99 comes in. Officials in the town of Bessemer, outside of Birmingham, whose officials had been criticized in the Times, went as far as to use criminal law to silence journalists. Times reporter Harrison Salisbury was brought up on charges of criminal libel, which could have subjected him to six months’ imprisonment.

As a result of this state-sponsored “libel attack,” the Times took its reporters out of Alabama. The nation’s newspaper of record didn’t have a single journalist in one of the most important sites of civil rights activity during the movement’s critical years. Other newspapers followed the Times’ lead and took reporters from the South.

Sullivan turned back the segregationists’ “libel attack,” saved the Times and the SCLC from bankruptcy, and allowed the press to report fully and freely on the civil rights movement, enabling major advances in civil rights. Sullivan helped foster public discourse on public issues that is “uninhibited, robust, and wide-open.”