Professor Stephen Wermiel - Justice Brennan and the Sullivan Decision, Fifty Years On

Faculty Scholarship Highlight, February 2014

March 9, 2014, marks the 50th anniversary of the U.S. Supreme Court’s decision in New York Times v. Sullivan, perhaps the most significant First Amendment ruling in the Court’s history. In Sullivan, Justice Brennan, writing for a unanimous Court, articulated the “actual malice” standard—pursuant to which public officials may only sue for defamation or libel if they can demonstrate that the statements at issue were made by the defendant with actual knowledge of falsity or reckless disregard for the truth. In the process, although Sullivan purported to do nothing more than articulate a First Amendment defense against claims for libel and defamation, it had the effect of reconstituting the First Amendment as a shield against censorship, empowering everyone from the mass media to individual private citizens to criticize public figures without fear of undue legal retribution.

As First Amendment students well know, Sullivan remains good law today. But as Professor Stephen Wermiel documents in a new book, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan, its survival to—and through—the present was hardly a foregone conclusion. Instead, drawing upon private interviews with Justice Brennan along with a host of unpublished—and previously unexplored—memoranda Brennan penned in subsequent cases, Wermiel and co-author Lee Levine demonstrate just how hard Sullivan’s author had to work over the next quarter-century to protect the principles for which the decision came to stand. And although some of the chapters of this story can be inferred from the Court’s subsequent decisions in cases such as Time, Inc. v. Hill, Rosenbloom v. Metromedia, Inc., Gertz v. Robert Welch. Inc., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., and, finally, Hustler Magazine v. Falwell, The Progeny demonstrates how, with a little bit of help, Justice Brennan worked tirelessly behind the scenes to preserve not just the letter of the Sullivan decision, but the far deeper First Amendment principles it sought to embed into American constitutional discourse.