4 SACK 273-292 (DO NOT DELETE) 11/17/2014 9:43 AM NEW YORK TIMES CO. V. SULLIVAN—50-YEAR AFTERWORDS Robert D. Sack* This is not a law review article.1 It is an address that was delivered largely in these words at the University of Alabama Law School on February 28, 2014, at a symposium marking the fiftieth anniversary of the Supreme Court’s decision in New York Times Co. v. Sullivan2 (“Sullivan” or “New York Times v. Sullivan”). It was meant to present a broad overview of the case and its consequences and to serve as a backdrop for an examination by others of various specific aspects of the decision and its impact. I. New York Times v. Sullivan is an important and difficult case. It is also remarkable in at least this highly relevant respect: as Justice Goldberg noted in his concurrence, the Supreme Court was “writing upon a clean slate.”3 It had been widely assumed and expressed that civil judgments based on the ancient English defamation torts—libel and slander—were entirely matters of state law, unconstrained by First Amendment protections.4 From there, in a single bound, the Sullivan Court jumped to a * Senior Judge, United States Court of Appeals for the Second Circuit. The author is indebted to, and in awe of, the late Anthony Lewis, whose 1991 book Make No Law: The Sullivan Case and the First Amendment, is the author’s source of first and last resort when attempting to understand the history and significance of New York Times Co. v. Sullivan. This Article is humbly dedicated to his memory. The author also gratefully acknowledges the assistance of David Schulz and Stuart Karle, who read and helpfully commented on early versions of these remarks. Special thanks go to Richard Tofel for background information on the legal struggles of Dow Jones publications in Singapore in the 1980s and 1990s and the author’s wife Anne and his law clerks, particularly Eugene A. Sokoloff, for their patient support. Thanks too to the Editors of the Alabama Law Review for their fine work on both arranging the symposium and editing and publishing this Article. 1. Cf. RENÉ MAGRITTE, THE TREACHERY OF IMAGES (1928–29) (painting of a pipe with the caption “Ceci n’est pas une pipe.” (“This is not a pipe.”)), available at http://en.wikipedia.org/wiki/The_Treachery_of_Images. Footnotes have been added by the author in order, inter alia, to make this look like a law review article. 2. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The author gave versions of this address at symposia marking the fiftieth anniversary of New York Times Co. v. Sullivan at the Roger Williams University School of Law on February 21, 2014; New York University School of Law on April 2, 2014; and the Silha Center for The Study of Media Ethics and The Law at the University of Minnesota School of Journalism and Mass Communication on April 23, 2014. 3. Id. at 299 (Goldberg, J., concurring). 4. See id. at 299–300. 273 4 SACK 273-292 (DO NOT DELETE) 11/17/2014 9:43 AM 274 Alabama Law Review [Vol. 66:2:273 new and complex set of constitutionally based limitations on defamation suits by public officials, applicable, as the First Amendment is through the Fourteenth, nationwide.5 The new rules required plaintiffs to support their claims with proof of “actual malice.”6 They provided that “actual malice” must be established by clear and convincing evidence and that a defendant was entitled to independent appellate review of any trial court finding to that effect.7 And they established that criticism of government action could not in any event constitutionally support a libel action by an unidentified responsible government official.8 There is no simple explanation of how, in one fell swoop, the Court got there. To put this all in perspective, I thought I would start by looking at Sullivan in the context of a legal system about as far away as you can get from New York City, Montgomery, and Tuscaloosa without leaving the planet—the dystopian legal world of Singapore press law. Lee Kwan Yew,9 Singapore’s larger-than-life first prime minister, was “[t]he longest-serving prime minister in world history.”10 He became the first prime minister of Singapore on June 5, 1959.11 He held that post for some thirty years, was then senior minister, and thereafter mentor minister to his son, the third prime minister.12 He put it this way early on: “[F]reedom of the news media[] must be subordinated to the overriding needs of the integrity of Singapore, and to the primacy of purpose of an elected government.”13 Or as a Singaporean official said in connection with a dispute with a foreign newspaper some years later: “Singapore is not America, and we have no ‘free and unrestricted press in American usage.’”14 By way of background, for many years I enjoyed the challenge and privilege of acting as outside American legal counsel for the Wall Street Journal and, among others, its Asian publications. In May 1988, I was with 5. The First Amendment was first applied to the states through the Fourteenth Amendment in Gitlow v. New York, 268 U.S. 652 (1925). 6. Sullivan, 376 U.S. at 279–80. 7. Id. at 285 n.26. 8. Id. at 291–92. 9. Sometimes spelled “Lee Kuan Yew.” 10. Lee Kuan Yew, BIOGRAPHY.COM, http://www.biography.com/people/lee-kuan-yew-9377339 (last visited March 22, 2014). 11. See id. 12. See Lee Kuan Yew, WIKIPEDIA, http://en.wikipedia.org/wiki/Lee_Kuan_Yew (last visited March 22, 2014). 13. Lee Kwan Yew, Address to the General Assembly of the International Press Institute (June 9, 1971), quoted in CHERIAN GEORGE, FREEDOM FROM THE PRESS: JOURNALISM AND STATE POWER IN SINGAPORE, 74 (2012). 14. Dow Jones & Co., Inc., Lee Kuan Yew Vs. the News: A History 15 [hereinafter Dow Jones white paper] (unpublished and undated white paper) (on file with the Dow Jones & Co., Inc. corporate relations department in New York and the Alabama Law Review). 4 SACK 273-292 (DO NOT DELETE) 11/17/2014 9:43 AM 2014] 50-Year Afterwords 275 a London-based barrister in Singapore representing the Asian Wall Street Journal. We were at a hearing in the High Court; the country’s tribunal of first instance for most cases. It shares the name with the roughly corresponding institution in England. The old Singapore High Court building looked to me as though it had been moved block by block from London’s Strand. And it stood across the street from, of all things, huge cricket grounds in the Singapore City center.15 The judge and the barristers were in robes; the judge, at least, was bewigged. As I listened to an argument regarding the gazetting of the Journal—gazetting was the drastic government-imposed limitation-by-licensing of the Journal’s circulation in Singapore—I was struck, as you can tell, by just how very English everything seemed to be. 16 But John Berthelsen, a former Journal reporter who has long covered the area, observed several years ago: Being charged in the Singapore courts is tantamount to being convicted. As far as can be determined, neither the government nor the Lee family [has ever] lost a case against the press in their own courts . . . . The government or members of the Lee family have filed defamation or contempt charges against virtually every major publication in Asia, including the Financial Times, Time Magazine, the Economist, Bloomberg News Service, [and] the now-defunct AsiaWeek . . . [and won.]17 Recently, a Singapore-based scholar similarly noted: “[T]wo laws— defamation and contempt of court—have been the most regularly used instruments against foreign media, next to the government’s gazetting powers.”18 He cited, as what he called “[t]he classic example,” a 1994 lawsuit against the International Herald Tribune.19 The suit arose from an article that referred simply to “intolerant regimes in Asia” and a compliant judiciary.20 “Although Singapore was not mentioned by name,” the scholar reported, “the government [successfully] charged that the article defamed 15. See, e.g., Cricket Pitch, MEMORIES OF SINGAPORE, http://www.singas.co.uk/Lynne_Copping/cricket_pitch.jpg (last visited March 22, 2014). The High Court was in the domed building across the street from the field. 16. See, e.g., R.C., A Chill in The Blogosphere, ECONOMIST, (Jan. 19, 2011, 6:50 AM), http://www.economist.com/blogs/banyan/2011/01/singapores_media; Dow Jones white paper, supra note 14, at 8. 17. John Berthelsen, Singapore’s Lees Cow the International Herald Tribune Again, ASIA SENTINEL (Mar. 24, 2010), http://www.asiasentinel.com/politics/singapores-lees-cow-the-international- herald-tribune-again/. 18. See FREEDOM FROM THE PRESS, supra note 13, at 41. 19. Id. 20. Id. 4 SACK 273-292 (DO NOT DELETE) 11/17/2014 9:43 AM 276 Alabama Law Review [Vol. 66:2:273 Singapore’s Prime Minister and scandalised [Singapore’s] courts.”21 Starting to sound a little like New York Times v. Sullivan, is it not? English common law and procedure, then, can still serve as elegant, impressive, and effective means of suppressing freedom of expression. They have been used rather brilliantly to that end in some Commonwealth nations, making their proceedings look and sound as English as Downton Abbey. II. The American constitutional law of defamation generally—and New York Times v. Sullivan in particular—are each part of a long history of the Supreme Court’s grappling with how to apply the command “Congress shall make no law . . . abridging the freedom of speech, or of the press”22 and to do it so as to render speakers and the press safe from the panoply of restrictions arising under ancient principles of English law. The English law of direct licensing was abandoned in England in the late seventeenth century.23 Although apparently still used in the form of gazetting in Singapore—it never took hold, at least in its raw form, on this side of the Atlantic—or the Pacific for that matter. So it has not, in that form at least, been an issue for our courts. But the early American Republic did adopt the English statutory and common laws of sedition, criminalizing certain criticism of government.24 These gave way, by the time of Sullivan, to well-settled doctrine, expressly recognized in Sullivan, that sedition laws—in particular ours of 1798—were generally barred by the First Amendment.25 The Supreme Court also grappled with American analogues of English statutes criminalizing various other kinds of speech. Under U.S. laws, for example, unlawful “espionage” included the distribution of leaflets urging resistance to military induction,26 or cutting back on the production of war materiel.27 The Supreme Court’s curtailment of such prohibitions began in 1919, with Justice Holmes’ articulation of the “clear and present danger” 21. Id. 22. U.S. CONST. amend. I. 23. See MARC A. FRANKLIN, DAVID A. ANDERSON & LYRISSA C. BARNETT LIDSKY, MASS MEDIA LAW: CASES AND MATERIALS 27 (8th ed. 2011) (“The last [English] licensing legislation expired in 1694 and was not renewed.”). 24. See PHILLIP I. BLUMBERG, REPRESSIVE JURISPRUDENCE IN THE EARLY AMERICAN REPUBLIC 82–83 (2010). 25. See New York Times Co. v. Sullivan, 376 U.S. 254, 273–76 (1964). 26. See Schenck v. United States, 249 U.S. 47 (1919). 27. See Abrams v. United States, 250 U.S. 616 (1919). 4 SACK 273-292 (DO NOT DELETE) 11/17/2014 9:43 AM 2014] 50-Year Afterwords 277 test in Schenck.28 Later that year, in his so-called “great dissent”29 in Abrams, Holmes famously wrote: [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas . . . .[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .30 The “marketplace of ideas.” The English also enforced injunctions on speech and the press by citations for contempt of court orders. Contempt was available, too, to suppress criticism or commentary on the work of the courts31 and even to bar reporting on criminal or civil matters being considered by a court. The most notorious example of the latter was the injunction of The Sunday Times of London some years ago from publishing articles warning of the dreadful birth defects caused by the tranquilizer thalidomide. The injunction was entered on the grounds that there was a civil case then pending on the subject that might have been affected by such a publication.32 The latter species of contempt, upheld by the United States Supreme Court in Patterson v. Colorado,33 was sharply curtailed under the First Amendment by the Court’s 1940s decisions in Bridges v. California,34 Pennekamp v. Florida,35 and Craig v. Harney.36 Injunctions—together with 28. Schenck, 249 U.S. at 52 (“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”). It should be noted that Justice Holmes, speaking for the Court, upheld the constitutionality of the conviction for seditious speech that was being appealed. 29. Abrams, 250 U.S. at 639; see THOMAS HEALY, THE GREAT DISSENT: HOW OLIVER WENDELL HOLMES CHANGED HIS MIND—AND CHANGED THE HISTORY OF FREE SPEECH IN AMERICA (2013). 30. Abrams, 250 U.S. at 630 (Holmes, J., dissenting). 31. Referred to in England as “scandalising the court,” or far more colorfully in Scotland as “murmuring judges.” See “Scandalising Court” Under Review, BBC NEWS UK, (Aug. 9, 2012, 10:56 PM), http://www.bbc.com/news/uk-19204860. Unlike in Singapore, a prosecution on that theory in the U.K. had not been successful between 1931 and 2013. In the latter year, the offense was abolished by statute. See Crime and Courts Act, 2013, c. 22, § 33 (U.K.), available at http://www.legislation.gov.uk/ukpga/2013/22/section/33. It was strictly limited in those parts of the Commonwealth that are (unlike Singapore) subject to the jurisdiction of the Privy Council by the Council on April 16, 2014. See Dhooharika v. Dir. of Pub. Prosecutions, [2014] UKPC 11 (U.K.), available at http://www.jcpc.uk/decided-cases/docs/JCPC_2012_0058_Judgment.pdf. 32. See Sunday Times v. United Kingdom, 2 Eur. Ct. H.R. (ser. A) at 245 (1979), available at http://www.hrcr.org/safrica/limitations/sunday_times_uk.html (holding that the injunction violated Article 10(1) of the European Convention on Human Rights). 33. Patterson v. Colorado, 205 U.S. 454 (1907). 34. Bridges v. California, 314 U.S. 252 (1941). 35. Pennekamp v. Florida, 328 U.S. 331 (1946). 36. Craig v. Harney, 331 U.S. 367 (1947). 4 SACK 273-292 (DO NOT DELETE) 11/17/2014 9:43 AM 278 Alabama Law Review [Vol. 66:2:273 contempt for disobeying them—were addressed more broadly in Near v. Minnesota37 and the Pentagon Papers case.38 And in their cousin, Nebraska Press Ass’n v. Stuart,39 the Court balanced free speech concerns against a criminal defendant’s right to an impartial jury, expressing a profound skepticism of injunctions—so-called “gag orders”—against the press even when used to protect the fairness of a defendant’s criminal trial. Together, these cases rendered most injunctions against speech and press presumptively unconstitutional and, as a result, virtually extinct. Prominently, lastly, and of course, there were actions under English common law of libel and slander. It was New York Times v. Sullivan that began to outline the limitations on the use of these actions to quash unpopular speech about public figures, public men and women, and—to some extent—public affairs. It is to Sullivan, then, that we now turn—recognizing it as, among other things, part of this arc of emerging Supreme Court jurisprudence that served to protect free speech and free press from ancient English common law and statutory tools of suppression. III. To be sure, Sullivan arose in a highly volatile context: race relations in the South in the late 50s and early 60s. It is not unusual for American turmoil to beget great cases; fears about the nation’s involvement in World War I and the early Red Scares gave rise to the revolution in fundamental First Amendment protections articulated by Justices Holmes and Brandeis. The Pentagon Papers case was spawned by the massive national upheaval over the war in Vietnam.40 Perhaps the great cases would not have been great—or even decided quite the way they were—had they arisen under more pedestrian circumstances. But central to all of them, I think, is the Court’s attempt to make good on First Amendment guarantees—not only a desire to resolve the controversial political, moral, or ethical circumstances in which the cases arose. Plainly, Sullivan cannot be considered apart from the struggle over civil rights or the identity of the Times. But that seems to me to be the subject for a different series of conversations. 37. Near v. Minnesota, 283 U.S. 697 (1931). 38. New York Times Co. v. United States, 403 U.S. 713 (1971). 39. Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976). 40. See New York Times Co. v. United States, 403 U.S. at 724 (Douglas, J., concurring). 4 SACK 273-292 (DO NOT DELETE) 11/17/2014 9:43 AM 2014] 50-Year Afterwords 279 As an op-ed contributor to Forbes magazine commented recently, “If judicial decisions were categorized like books, the . . . Supreme Court’s 1964 opinion in Times v. Sullivan would be a modern classic.”41 The facts are easily rehearsed. L. B. Sullivan was the elected Commissioner of Public Affairs in Montgomery, Alabama. His duties included supervision of the Montgomery police department.42 The Times published a paid advertisement entitled “Heed Their Rising Voices,” which sought to raise money in support of civil rights activists in the South.43 The litigation centered on two paragraphs in the ad. The first, at the heart of the litigation, read: In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re- register, their dining hall was padlocked in an attempt to starve them into submission.44 That was wrong in several particulars. Most seriously, the dining hall was never padlocked, either in an attempt to starve the students into submission, or for any other reason.45 Commissioner Sullivan brought a libel suit in Alabama state court against the Times and four black pastors from Alabama whose names appeared along with sixteen others at the bottom of the ad as signatories to it.46 If nothing else, that served to destroy diversity of citizenship and thereby thwart removal of the case to federal court by the Times. The trial judge, Walter Burgwyn Jones, took particular pride in his Southern heritage.47 But with the pride, Anthony Lewis tells us, came his disdain for what the judge referred to as the “recognized rabble-rousers and 41. Joseph H. Cooper, In a Political Campaign, Is There a Constitutionally-Protected Right to Lie?, FORBES (Jan. 31, 2014), http://www.forbes.com/sites/realspin/2014/01/31/in-a-political- campaign-is-there-a-constitutionally-protected-right-to-lie/. 42. See New York Times Co. v. Sullivan, 376 U.S. 254, 256 (1964). 43. Id. at 256–57. 44. Id. at 257. The second paragraph at issue read: Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for ‘speeding,’ ‘loitering’ and similar ‘offenses.’ And now they have charged him with ‘perjury’—a felony under which they could imprison him for ten years. Id. at 257–58. 45. Id. at 259. 46. Id. at 257. 47. ANTHONY LEWIS, MAKE NO LAW 25 (1991). 4 SACK 273-292 (DO NOT DELETE) 11/17/2014 9:43 AM 280 Alabama Law Review [Vol. 66:2:273 racial agitators” who insisted on integrating the gallery at trial.48 He ordered the bailiffs to segregate it. And “[h]e praised ‘white man’s justice, a justice born long centuries ago in England, brought over to this country by the Anglo-Saxon race.’”49 In the case before him, Judge Jones decided as a matter of law that the statements in the ad were libelous per se—that is, actionable without proof of actual harm.50 He also decided as a matter of law—indeed, it was conceded—that portions of the ad were false.51 The only questions for the jury were: had the defendants published the ad; was it “of and concerning” Sullivan; and, if so, how much was Sullivan entitled to in damages?52 Two hours and twenty minutes after retiring, the jury returned a verdict for $500,000 against the Times and the ministers—every penny Sullivan had sought.53 The judgment was entered, and the Alabama Supreme Court affirmed.54 It concluded, among other things, that, as was widely thought to be the law, defamatory statements were flatly unprotected under the federal Constitution.55 The same advertisement gave rise to three other libel suits against the Times by men who had served as Montgomery City Commissioners and one by Alabama’s Governor. In one of those lawsuits that had gone to trial by the time the Supreme Court heard Sullivan, the plaintiff had also been awarded $500,000.56 The damages sought in the remaining cases totaled $2,000,000.57 At about the same time, a pair of Times articles about race relations in Birmingham, written by the renowned Pulitzer Prize-winning, New York Times reporter Harrison Salisbury, attracted libel suits by public officials seeking in the aggregate more than $3,000,000 in damages from the Times and $1,500,000 from Salisbury.58 Justice Hugo Black—a graduate of the University of Alabama School of Law—concurring in Sullivan, reported that there were pending at the time a total of “eleven libel suits by local and state officials against the Times seeking $5,600,000, and five such suits against [CBS] seeking $1,700,000.”59 James C. Goodale, the former general counsel of the Times, has wondered aloud 48. Id. at 26. 49. Id. at 25–26. 50. Sullivan, 376 U.S. at 262. 51. Id. 52. Id. 53. LEWIS, supra note 47, at 33. 54. Sullivan, 376 U.S. at 290. 55. Id. at 295 (Black, J., concurring). 56. Id. at 278 n.18. 57. Id. 58. LEWIS, supra note 47, at 22. 59. Sullivan, 376 U.S. at 295 (Black, J., concurring). 4 SACK 273-292 (DO NOT DELETE) 11/17/2014 9:43 AM 2014] 50-Year Afterwords 281 whether, particularly in light of the labor troubles then facing the New York press, the Times Company could have survived that onslaught.60 There was little doubt about the principal purpose of the Sullivan suit: One local Alabama daily newspaper, The Montgomery Advertiser—now a Gannett newspaper—summed up the trial court’s judgment with the headline: “State Finds Formidable Legal Club to Swing at Out-of-State Press.”61 The Supreme Court granted certiorari and unanimously reversed.62 The key holding of Justice Brennan’s opinion for six members of the Court was contained in a single, if rather long, sentence: The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.63 But there was much more to Justice Brennan’s opinion. Jack Weiss, a good friend and former colleague of mine—now the Chancellor of the L.S.U. (Paul M. Hebert) Law Center—used to co-teach a seminar on First Amendment law with me at Columbia Law School. When it came to our class about Sullivan, Jack would hand out a sheet of paper listing ten different holdings and a dictum from the opinion.64 Before I 60. LEWIS, supra note 47, at 35 (“The Times was financially vulnerable in those days. James Goodale, later its general counsel, said of the 1960 libel cases: ‘Without a reversal of those verdicts there was a reasonable question of whether the Times, then wracked by strikes and small profits, could survive.’”). 61. Id. The Montgomery Advertiser is now a Gannett newspaper. See MONTGOMERY ADVERTISER, http://www.montgomeryadvertiser.com (last visited March 23, 2014). 62. Sullivan, 376 U.S. at 264. 63. Id. at 279–80. 64. The list provided by Chancellor Weiss read: SOME KEY HOLDINGS OF NEW YORK TIMES v. SULLIVAN 1. Application of a state rule of law in a civil action constitutes state action. (376 U.S. at 265.) [reversing Alabama S. Ct.] 2. State defamation law, at least insofar as it relates to criticism of the official conduct of public officials, “must be measured by standards that satisfy the First Amendment.” (376 U.S. at 269.) [also reversing Alabama S. Ct.] 3. The First Amendment applies to paid advertisements that express opinions about important public issues. (376 U.S. at 266.) 4. A public official cannot recover damages “for a defamatory falsehood relating to his official conduct” unless he proves that the statement was made with actual malice, that is “with knowledge that it was false or with reckless disregard of whether it was false or not.” (376 U.S. at 279.) 5. Appellate courts must “make an independent examination of the whole record” to assure that “the judgment does not constitute a forbidden intrusion on the field of free expression.” (376 U.S. at 285.) 4 SACK 273-292 (DO NOT DELETE) 11/17/2014 9:43 AM 282 Alabama Law Review [Vol. 66:2:273 discuss several of these, though, I should point to one that is conspicuous by its absence. IV. The advertisement that gave rise to the Sullivan case was published from New York largely for an audience in and about New York and, presumably, the corridors of power in Washington, D.C. Fewer than 400 copies made their way into Alabama—about thirty-five into Montgomery County.65 (Likely, a similarly small number were circulated in other states far from New York and New Yorkers.) Was that limited Alabama circulation enough to support its courts’ exercise of personal jurisdiction over the publisher of the Times? Yes, said the Alabama courts.66 And the United States Supreme Court decided, by way of a footnote, that the issue had been waived by the Times because it had entered a general appearance—rather than a special appearance—in the Alabama courts.67 Odd? According to Lewis, the Times had in fact attempted to file a special, not a general, appearance precisely for the purpose of preserving its ability to challenge personal jurisdiction.68 It had done so through its counsel’s use of a form set out in a treatise, Alabama Pleading and Practice at Law, written by none other than Walter Burgwyn Jones—the judge presiding at the Sullivan trial.69 But the judge ruled against the Times 6. The evidence must demonstrate actual malice with “convincing clarity.” (376 U.S. at 285- 86.) 7. “Actual malice” goes to the state of mind of the defendant—whether the defendant knew or suspected that the statement was false—and does not mean negligence. (376 U.S. at 287- 88.) 8. State law “of and concerning” determinations, at least with respect to criticism of the official conduct of public officials, are subject to federal constitutional scrutiny under the First Amendment. (376 U.S. at 288-92.) 9. The First Amendment forbids liability for libel of government (i.e., seditious libel). Likewise, general criticism of government action may not constitutionally be held to be defamatory of (i.e., “of and concerning”) individual public officials merely by virtue of their offices. (Id.) 10. Rules of law—whether common law or statutory—that deter protected speech because of “doubt whether [its truth] can be proved in court or fear of the expense of having to do so” violate the First Amendment because they “dampen[] the vigor and limit[] the variety of public debate.” (376 U.S. at 279.) 11. (Dictum) State law application of the defense of substantial truth may be subject to constitutional limitations. (376 U.S. at 289.) 65. Sullivan, 376 U.S. at 260 n.3 (“Approximately 394 copies of the edition of the Times containing the advertisement were circulated in Alabama. Of these, about 35 copies were distributed in Montgomery County. The total circulation of the Times for that day was approximately 650,000 copies.”). 66. New York Times Co. v. Sullivan, 144 So. 2d 25, 33 (Ala. 1962). 67. Sullivan, 376 U.S. at 264 n.4. 68. LEWIS, supra note 47, at 25. 69. Id.