Legal Issues In the News

Free Speech at Elections


In the United States, we believe in a robust debate on matters of public interest.  Sharp discussions can help frame critical issues.   And we have seen sharp language during recent election campaigns.  “She’s a liar!”  “He’s unfit!”  Insults abound, with new comments coming daily. The First Amendment of the United States Constitution guarantees the right of free speech.  Of course, there are limitations.  For example, false advertising is not protected by the First Amendment, and false advertisers can be sued for their misrepresentations.  But in the context of the political arena, are there any restrictions?  Can a candidate go too far?

The old rule is that if someone publishes a falsehood that injures your reputation, you can sued them for defamation.  But that rule is modified for public figures so that useful political debate is not suppressed.  The key case, now over fifty years old, is New York Times versus Sullivan.  It arose from a newspaper advertisement that solicited funds to defend Dr. Martin Luther King against an Alabama perjury indictment.  The ad exaggerated the actions that the police had taken against Dr. King and other civil rights protesters.  Sullivan was the Montgomery Public Safety commissioner, and he felt that this exaggeration defamed him, as it was his duty to supervise the police department.  He sued the New York Times, saying that he had been libeled, and the jury awarded him $500,000. 

The Supreme Court took the case, sensing the larger implications of the lawsuit.   Its ruling created a new standard in defamation lawsuits brought by public officials:  the actual malice standard.   The word “malice” here does not refer to evil intent.  Instead, it refers to a level of carelessness in publishing supposed facts.  Under the actual malice standard, to win a case of defamation, public officials must prove that the publisher of the information either knew it was false, or published it with a reckless disregard for the truth. But what if you are a public figure, and you are misquoted in a serious way?  Does it matter that it’s supposedly a direct quote?  The Supreme Court said it does in a 1991 case, Masson versus the New Yorker Magazine. 

Jeffrey Masson was a psychologist working at the Sigmund Freud Archives.  He was fired after he challenged Freud’s “seduction theory,” that maintains adult emotional disorders are caused by childhood sexual abuse.  After his termination, Janet Malcolm interviewed Masson for a New Yorker Magazine article.  The piece included many quotes from Masson.  According to Malcolm, Masson said that if he had stayed at the archives, it would have been a center for “scholarship – and for sex, women and fun!”   

After the article was published, Masson sue the New Yorker Magazine for defamation, claiming that Malcolm had made up the quotes. The trial court dismissed the case, saying that he could not prove “actual malice” under the New York Times standard.  But Masson persisted, and on review, the Supreme Court reversed the trial court.  The Court found that the First Amendment did not protect the distortions in Malcolm’s article, because they were styled as direct quotes.  So even if you are public figure, you can sue and win if you are defamed and can prove that what was published is a gross distortion of the truth of what was actually said. 

Litigation over misquotes made during a political campaign should not be encouraged.  As Justice Kennedy said, “The remedy for speech that is false is speech that is true.  The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” But to paraphrase Jonathan Swift: you cannot use reason to get someone out of a position that reason did not put them into.  The challenge is not just sorting out what is true and what is not; the challenge is remembering that important truths are essential, and should be valued accordingly.