All winning streaks must come to an end. The New York Times brought an over 50-year win streak of defending defamation suits into a federal courtroom in Alabama. The underdog plaintiff was former University of Alabama basketball player Kai Spears. The Times published an article in 2023 that incorrectly said Spears was in a car with a teammate at the scene of a fatal shooting. Spears sued for libel over these “untrue statements linking him to a criminal event,” and prevailed on Thursday. A jury awarded more than $9 million in damages.
As The Washington Post put it in its coverage of the verdict, “the New York Times is synonymous with the standard for proving defamation,” referring to the 1964 Supreme Court case New York Times v. Sullivan. The standard is the “actual malice” doctrine, which has become a de facto liability shield for media corporations.
In No Liberty to Libel: The Originalist Case Against New York Times v. Sullivan, University of Nebraska Omaha political science professor Carson Holloway shows how the Sullivan ruling created a series of two-tier systems of justice. One elevates the press by giving them an immunity no other profession has.
“Journalism [is] a privileged profession” thanks to Sullivan, Holloway writes. “[J]ournalists, unlike all other professionals, are sheltered from the legal consequences that ordinarily accompany negligence.”
But it’s actually worse than that. The “actual malice” standard incentivizes negligence. “Actual malice” requires plaintiffs to prove the media knew the defamatory statement was false or that the media published it with “reckless disregard” for its veracity. Law professor David Logan identifies “the safest legal route” for the media: “publishing without verification. … [D]o little or no fact-checking, confident that the more slipshod their investigation, the less likely they are to be guilty of ‘actual malice.’”
“[U]nder an ‘actual malice’ regime,” Logan concludes, “ignorance is bliss.”
Justice Neil Gorsuch put his stamp on this argument in his dissent in Berisha v. Lawson (2021), writing, “[P]ublishing without investigation, fact-checking, or editing has become the optimal legal strategy.”
The New York Times itself may have fallen into this trap. At trial, the Times “argued that [reporter Billy Witz] had taken reasonable steps to corroborate his source’s information, including approaching Mr. Spears in person.” A spokesman for the Times said Witz made an “honest mistake,” which the jury may have felt as a matter of common sense.
“[M]ere carelessness does not rise to the level of actual malice,” Holloway wrote. But Witz may have shown just enough scrupulosity in his attempt to fact-check to bring the “actual malice” doctrine home to roost.
Even if it was an honest mistake, however, that would not change the harm the Times did to Kai Spears. Spears’ suit states that he “experienced severe emotional distress as his life has been disrupted” by The New York Times’ libelous reporting. The article incited a mob that — as they often do — included threats against his life and “mental anguish and harm” that interfered with his academic and athletic efforts at the University of Alabama.
Holloway, in No Liberty to Libel, cites a particularly noteworthy libel case: The defendant was former President Theodore Roosevelt after he left office. The judge used the analogy that if you negligently run over a child while driving your car, “good intentions will not excuse you” for the harm you caused. Summing up the prevailing view, Holloway writes that libel “was no different from any other kind of wrongful injury to another person, and was not to be treated differently merely because it involved the exercise of a right to speak or publish.”
Indeed, “false statements that damage reputation do inflict a legally cognizable injury.” Among the many aberrations of the Sullivan decision is that it perverts the First Amendment into a get-out-of-civil-liability-free card for the media. “[N]o other constitutional protection involved a right to inflict any other kind of injury on another person.”
The cases that do not go to trial and appeals data also attest to the advantages that corporate media have over individual plaintiffs.
The Media Law Research Center’s 2025 Report on Trials and Damages shows that plaintiffs have won in 59 percent of defamation lawsuits against media from 1980–2024. That win rate sinks quickly on appeal, as does the effect of winning. Media defendants are successful on 66 percent of appeals after a defeat. Post-trial, over a quarter of awards are either reduced or eliminated. The final award, on average, is 15 percent of what was given at trial. The reduction can happen after a post-trial settlement, on appeal, or because some states cap awards in certain cases. Alabama is one such state, and Kai Spears’ award will drop by more than $2 million just on those grounds.
Importantly, the MLRC data is only from trials; it does not account for all the lawsuits that do not survive the media defendants’ motions to dismiss or other pretrial maneuvering. Nor can it account for defamed individuals who feel they have no chance against the financial and legal power of corporate media or the weight of Sullivan. That would represent the sort of “chilling effect” the Sullivan court feared would paralyze newspapers from reporting on public officials if they had to respect those citizens’ right to reputation.
Despite the verdict and the end of its win streak, The New York Times is unlikely to join the calls for an end to the standard synonymous with its name. But the Times’ loss in the Spears case could be another inflection point toward the end of Sullivan.
The Supreme Court’s denial of certiorari in Dershowitz v. CNN at the end of the last term was Justice Clarence Thomas’ third opportunity and Justice Gorsuch’s second to lay down their markers for reconsidering Sullivan.
Justice Thomas’ objection to Sullivan is fully originalist. He sketched his argument in McKee v. Cosby (2019): “We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified.” As such, “there appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.”
Justice Gorsuch agrees with Thomas’ originalist perspective, but in Berisha, he built his own argument on how poorly Sullivan has stood the test of time, particularly in the shift to digital media. The “categories and tests this Court invented and instructed lower courts to use in this area … seem increasingly malleable and even archaic.”
The New York Times v. Sullivan decision was a product of its time. The prestige and concentration of corporate media was near its peak, license was replacing liberty in many aspects of society, and the Supreme Court was routinely vying with Congress for the title of “legislative branch.”
As a matter of First Amendment or libel law — or, more broadly, speech rights and the right to reputation — Sullivan was wholly unprecedented and ahistorical.
The Spears case shows that The New York Times is not invincible when on trial for defamation. Holloway, Thomas, and Gorsuch make compelling cases that the legal reasoning behind New York Times v. Sullivan is as thin and weak as the paper it’s printed on. They give hope that the injustice of its 62-year reign in law and culture might end soon.
