Defamation, Libel Tourism and the SPEECH Act of 2010: The First Amendment Colliding with the Common Law
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Defamation, Libel Tourism and the SPEECH Act of 2010: The First ...

Chapter 1:  Defamation Laws on a Collision Course: The Evolution and Convergence of American and English Law
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court decisions in civil disputes are final and are not open for review by the Supreme Court of the United States. However, in the case of the New York Times, the petitioners raised arguments that the Alabama decision contravened freedom of speech as guaranteed by the First Amendment, thereby permitting discretionary review by the US Supreme Court. Significantly, the laws of the American states were not subject to First Amendment scrutiny until the Fourteenth Amendment (enacted in the aftermath of the Civil War) was interpreted as making the First Amendment and certain other aspects of the Bill of Rights applicable to the states as well as the federal government.10

The underlying facts in the case of the New York Times were events involving the civil rights movement in the 1960s.11 The newspaper published a paid political advertisement, styled as a paid editorial, in which various grievances on behalf of the civil rights movement were listed. Although not mentioned by name in the editorial, an elected official in Alabama brought an action for libel against the New York Times in Alabama where fewer than 400 copies of the paper were distributed out of a total daily circulation of about 650,000.12 The Alabama Court found that some of the statements contained in the advertisement were not factually accurate. The decision of the Supreme Court of Alabama was not out of step with the traditional common law of libel:

Where the words published tend to injure a person libelled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tends to bring the individual into public contempt are libellous per se.13

The New York Times raised constitutional arguments, but these were rejected out of hand by the Alabama Court. The Alabama Court’s rejection of First Amendment issues was correct based on existing state law and the Supreme Court decision in Chaplinsky v. New Hampshire.14 However, upon review of the Alabama proceedings, the US Supreme Court found that in the context of political speech involving a public official, the First Amendment applied and mandated a higher standard for a claimant to prevail. In the case of the New York Times, the Supreme