Donald J. Trump has improved his standing in Pennsylvania even as late-deciding voters appear to be breaking for Kamala Harris.
THE NEW YORK TIMES/SIENA COLLEGE POLL
Oct. 24 to Nov. 2
If the 2024 presidential election were held today, who would you vote for if the candidates were Kamala Harris and Donald Trump?
Among likely voters. Shaded areas represent margins of error.
New York Times Co. v. Sullivan
No. 39
Argued January 6, 1964
Decided March 9, 1964*
376 U.S. 254
Syllabus
Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate petitioner's newspaper, the text of which appeared over the names of the four individual petitioners and many others. The advertisement included statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police department. The trial judge instructed the jury that such statements were "libelous per se," legal injury being implied without proof of actual damages, and that, for the purpose of compensatory damages, malice was presumed, so that such damages could be awarded against petitioners if the statements were found to have been published by them and to have related to respondent. As to punitive damages, the judge instructed that mere negligence was not evidence of actual malice, and would not justify an award of punitive damages; he refused to instruct that actual intent to harm or recklessness had to be found before punitive damages could be awarded, or that a verdict for respondent should differentiate between compensatory and punitive damages. The jury found for respondent, and the State Supreme Court affirmed.
Held: A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves "actual malice" -- that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. Pp. 376 U. S. 265-292.
(a) Application by state courts of a rule of law, whether statutory or not, to award a judgment in a civil action, is "state action" under the Fourteenth Amendment. P. 376 U. S. 265.
(b) Expression does not lose constitutional protection to which it would otherwise be entitled because it appears in the form of a paid advertisement. Pp. 376 U. S. 265-266.
(c) Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless "actual malice" -- knowledge that statements are false or in reckless disregard of the truth -- is alleged and proved. Pp. 376 U. S. 279-283.
(d) State court judgment entered upon a general verdict which does not differentiate between punitive damages, as to which, under state law, actual malice must be proved, and general damages, as to which it is "presumed," precludes any determination as to the basis of the verdict, and requires reversal, where presumption of malice is inconsistent with federal constitutional requirements. P. 376 U. S. 284.
(e) The evidence was constitutionally insufficient to support the judgment for respondent, since it failed to support a finding that the statements were made with actual malice or that they related to respondent. Pp. 376 U. S. 285-292.
273 Ala. 656, 144 So. 2d 25, reversed and remanded.
“On Friday, we published an article about how former President Donald Trump’s campaign has made a habit of deceptively using quotations in television ads attacking Vice President Kamala Harris.
Then, just days later, the campaign released perhaps the most egregious example yet.
A new minute-long ad revives two of the quote distortions from previous Trump ads – and sprinkles in two more for good measure. Here is a fact check.
The new ad cuts out critical words from a news article about Harris’ tax proposals.
The ad, like a previous Trump ad, features the following on-screen text attributed to an August article in The New York Times: “Harris is seeking to significantly raise taxes.” But as the Times itself has noted, this is a misleading snip. What the Times article actually said was this: “Harris is seeking to significantly raise taxes on the wealthiest Americans and large corporations.”
That’s a big difference.
The Trump campaign did not respond to a request for comment for this article. For the Friday article on the campaign’s misleading use of quotations, the campaign declined to address any of the specific examples we raised; instead, spokesperson Karoline Leavitt said, “President Trump has the hardest-hitting, most well produced ads in the business.”
The new ad also deletes a crucial word from a news article about immigration policy.
The ad features the following on-screen text the ad attributes to a CBS News piece in September: “Harris vows to keep Biden’s border.” The text is accompanied by a narrator saying, falsely, that “Kamala was in charge of his open-border policies.”
But what the CBS News article’s headline actually said was this: “Harris vows to keep Biden’s border crackdown: ‘The United States is a sovereign nation.’” The article began: “During a visit to the U.S.-Mexico border on Friday, Vice President Kamala Harris vowed to keep President Biden’s asylum crackdown in place if elected, solidifying Democrats’ embrace of more stringent immigration rules.”
The ad features on-screen text that says, “welfare for illegals,” attributing those words to an NBC News article from 2018.
But as we noted when a previous Trump ad featured similar on-screen text, that NBC News article did not even mention Biden or Harris, whose administration did not begin until 2021. And the article used the phrase “welfare for illegal immigrants” only in passing – in a totally different context than the Trump ad uses it.
The article criticized occupational licensing rules that were preventing immigrants enrolled in the Deferred Action for Childhood Arrivals (DACA) program from working in certain jobs. It said: “It’s a complete travesty that otherwise qualified individuals can’t get the government’s permission to cut hair. Regardless of one’s position on welfare for illegal immigrants, a license is clearly different from food stamps and other government safety nets.”
The new ad features giant on-screen text with the words “global war,” attributing them to a July article by the media outlet Axios, as the ad’s narrator says, “Their weakness invited wars.”
But the Axios article did not claim there is “global war” under the Biden administration. The article was headlined, “U.S. not ready for global war, commission warns”; it was about a bipartisan commission’s findings about the country’s preparedness for hypothetical future conflict, not about the present situation“
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Less than a week before Election Day, Donald Trump last night called for one of his prominent political adversaries to go before a firing squad. In an onstage interview with Tucker Carlson in Arizona, Trump called Liz Cheney, the Republican former representative from Wyoming, “a very dumb individual” and “a radical war hawk.”
“You know they’re all war hawks when they’re sitting in Washington in a nice building saying, Ooh gee, well, let’s send 10,000 troops right into the mouth of the enemy,” Trump said. “Let’s put her with a rifle standing there with nine barrels shooting at her, okay? Let’s see how she feels about it, you know, when the guns are trained on her face.”
Like Trump’s hate-filled rally at Madison Square Garden last weekend, these comments are a good summation of what he would bring to the White House if reelected. His campaign is premised on violence, disregard for the rule of law, and retribution for anyone who might disagree with him.
David A. Graham: This is Trump’s message
“This is how dictators destroy free nations,” Cheney responded on X. “They threaten those who speak against them with death. We cannot entrust our country and our freedom to a petty, vindictive, cruel, unstable man who wants to be a tyrant.”
Trump’s campaign said that Trump “was talking about how Liz Cheney wants to send America’s sons and daughters to fight in wars despite never being in a war herself.” Trump isn’t wrong that Cheney has often advocated foreign military interventions. She can and should be criticized for many of her views. But Trump isn’t calling for a debate. He vividly imagined Cheney with “guns trained on her face.” Normalizing discussion of political opponents getting shot is a step in a dangerous direction.
These remarks cannot be written off as joking around, the excuse that Trump has typically used when he’s crossed lines. (He seems less concerned about disapprobation these days.) Trump didn’t laugh when he said it. Neither did Carlson or the audience. Besides, Trump has repeatedly called for the armed forces to be used against his political critics. He’s proposed deploying the military against the “enemies from within,” a group that includes “radical left lunatics” generally, but also former Speaker Nancy Pelosi and Representative Adam Schiff, both California Democrats. He’s amplified calls on Truth Social for former President Barack Obama to face a military tribunal (for what crimes, one can only guess). He has said that retired General Mark Milley, whom he appointed chairman of the Joint Chiefs of Staff, should be executed.
Anne Applebaum: Trump wants you to accept all of this as normal
Yet some voters may go to the polls without a firm grasp of his rhetorical record. Trump makes so many outrageous remarks that keeping track of them all is difficult, and some parts of the press persist in toning down even his most dangerous comments. The headline in The New York Times on Trump’s Cheney remarks as of this writing was “Trump Attacks Liz Cheney Using Violent War Imagery,” which is not strictly false but misses the point.
In these comments, Trump flagrantly displayed his hypocrisy. Although the former president has remade himself as a putative dove, he once backed some of the same conflicts that Cheney did, including the war in Iraq. And although he claims he wants to avoid foreign adventurism, he spent his first term in office being talked out of attacking Venezuela, North Korea, and Syria’s Bashar al-Assad, among others. He and his allies are now proposing that the U.S. military launch attacks on cartels inside Mexico.
David A. Graham: Trump isn’t bluffing
Trump is also proposing new uses of the military domestically, not only against his enemies but to conduct a mass deportation. He has encouraged brutal policing and vigilante attacks by citizens. Trump may hate war, but he loves violence.
Perhaps voters shouldn’t give this man command of so many people armed with rifles.“
Candace Fails screamed for someone in the Texas hospital to help her pregnant daughter. “Do something,” she pleaded, on the morning of Oct. 29, 2023.
Nevaeh Crain was crying in pain, too weak to walk, blood staining her thighs. Feverish and vomiting the day of her baby shower, the 18-year-old had gone to two different emergency rooms within 12 hours, returning home each time worse than before.
The first hospital diagnosed her with strep throat without investigating her sharp abdominal cramps. At the second, she screened positive for sepsis, a life-threatening and fast-moving reaction to an infection, medical records show. But doctors said her six-month fetus had a heartbeat and that Crain was fine to leave.
Now on Crain’s third hospital visit, an obstetrician insisted on two ultrasounds to “confirm fetal demise,” a nurse wrote, before moving her to intensive care.
By then, more than two hours after her arrival, Crain’s blood pressure had plummeted and a nurse had noted that her lips were “blue and dusky.” Her organs began failing.
Hours later, she was dead.
Fails, who would have seen her daughter turn 20 this Friday, still cannot understand why Crain’s emergency was not treated like an emergency.
But that is what many pregnant women are now facing in states with strict abortion bans, doctors and lawyers have told ProPublica.
“Pregnant women have become essentially untouchables,” said Sara Rosenbaum, a health law and policy professor emerita at George Washington University.
Texas’s abortion ban threatens prison time for interventions that end a fetal heartbeat, whether the pregnancy is wanted or not. It includes exceptions for life-threatening conditions, but still, doctors told ProPublica that confusion and fear about the potential legal repercussions are changing the way their colleagues treat pregnant patients with complications.
In states with abortion bans, such patients are sometimes bounced between hospitals like “hot potatoes,” with health care providers reluctant to participate in treatment that could attract a prosecutor, doctors told ProPublica. In some cases, medical teams are wasting precious time debating legalities and creating documentation, preparing for the possibility that they’ll need to explain their actions to a jury and judge.
Dr. Jodi Abbott, an associate professor of obstetrics and gynecology at Boston University School of Medicine, said patients are left wondering: “Am I being sent home because I really am OK? Or am I being sent home because they’re afraid that the solution to what’s going on with my pregnancy would be ending the pregnancy, and they’re not allowed to do that?”
There is a federal law to prevent emergency room doctors from withholding lifesaving care.
Passed nearly four decades ago, it requires emergency rooms to stabilize patients in medical crises. The Biden administration argues this mandate applies even in cases where an abortion might be necessary.
No state has done more to fight this interpretation than Texas, which has warned doctors that its abortion ban supersedes the administration’s guidance on federal law, and that they can face up to 99 years in prison for violating it.
ProPublica condensed more than 800 pages of Crain’s medical records into a four-page timeline in consultation with two maternal-fetal medicine specialists; reporters reviewed it with nine doctors, including researchers at prestigious universities, OB-GYNs who regularly handle miscarriages, and experts in emergency medicine and maternal health.
Some said the first ER missed warning signs of infection that deserved attention. All said that the doctor at the second hospital should never have sent Crain home when her signs of sepsis hadn’t improved. And when she returned for the third time, all said there was no medical reason to make her wait for two ultrasounds before taking aggressive action to save her.
“This is how these restrictions kill women,” said Dr. Dara Kass, a former regional director at the Department of Health and Human Services and an emergency room physician in New York. “It is never just one decision, it’s never just one doctor, it’s never just one nurse.”
While they were not certain from looking at the records provided that Crain’s death could have been prevented, they said it may have been possible to save both the teenager and her fetus if she had been admitted earlier for close monitoring and continuous treatment.
There was a chance Crain could have remained pregnant, they said. If she had needed an early delivery, the hospital was well-equipped to care for a baby on the edge of viability. In another scenario, if the infection had gone too far, ending the pregnancy might have been necessary to save Crain.
Doctors involved in Crain’s care did not respond to several requests for comment. The two hospitals, Baptist Hospitals of Southeast Texas and Christus Southeast Texas St. Elizabeth, declined to answer detailed lists of questions about her treatment.
Fails and Crain believed abortion was morally wrong. The teen could only support it in the context of rape or life-threatening illness, she used to tell her mother. They didn’t care whether the government banned it, just how their Christian faith guided their own actions.
When they discovered Crain was pregnant with a girl, the two talked endlessly about the little dresses they could buy, what kind of mother she would be. Crain landed on the name Lillian. Fails could not wait to meet her.
But when her daughter got sick, Fails expected that doctors had an obligation to do everything in their power to stave off a potentially deadly emergency, even if that meant losing Lillian. In her view, they were more concerned with checking the fetal heartbeat than attending to Crain.
“I know it sounds selfish, and God knows I would rather have both of them, but if I had to choose,” Fails said, “I would have chosen my daughter.”
Crain had just graduated from high school in her hometown of Vidor, Texas, in May of 2023 when she learned that she was pregnant.
She and her boyfriend of two years, Randall Broussard, were always hip to hip, wrestling over vapes or snuggling on the couch watching vampire movies. Crain was drawn to how gentle he was. He admired how easily she built friendships and how quickly she could make people laugh. Though they were young, they’d already imagined starting a family. Broussard, who has eight siblings, wanted many kids; Crain wanted a daughter and the kind of relationship she had with her mom. Earlier that year, Broussard had given Crain a small diamond ring — “a promise,” he told her, “that I will always love you.”
On the morning of their baby shower, Oct. 28, 2023, Crain woke with a headache. Her mom decorated the house with pink balloons and Crain laid out Halloween-themed platters. Soon, nausea set in. Crain started vomiting and was running a fever. When guests arrived, Broussard opened gifts — onesies and diapers and bows — while Crain kept closing her eyes.
Around 3 p.m., her family told her she needed to go to the hospital.
Broussard drove Crain to Baptist Hospitals of Southeast Texas. They sat in the waiting room for four hours. When Crain started vomiting, staff brought her a plastic pan. When she wasn’t retching, she lay her head in her boyfriend’s lap.
A nurse practitioner ordered a test for strep throat, which came back positive, medical records show. But in a pregnant patient, abdominal pain and vomiting should not be quickly attributed to strep, physicians told ProPublica; a doctor should have also evaluated her pregnancy.
Instead, Baptist Hospitals discharged her with a prescription for antibiotics. She was home at 9 p.m. and quickly dozed off, but within hours, she woke her mother up. “Mom, my stomach is still hurting,” she said into the dark bedroom at 3 a.m. “I’m in a lot of pain.”
Fails drove Broussard and Crain to another hospital in town, Christus Southeast Texas St. Elizabeth. Around 4:20 a.m., OB-GYN William Hawkins saw that Crain had a temperature of 102.8 and an abnormally high pulse, according to records; a nurse noted that Crain rated her abdominal pain as a seven out of 10.
Her vital signs pointed to possible sepsis, records show. It’s standard medical practice to immediately treat patients who show signs of sepsis, which can overtake and kill a person quickly, medical experts told ProPublica. These patients should be watched until their vitals improve. Through tests and scans, the goal is to find the source of the infection. If the infection was in Crain’s uterus, the fetus would likely need to be removed with a surgery.
In a room at the obstetric emergency department, a nurse wrapped a sensor belt around Crain’s belly to check the fetal heart rate. “Baby’s fine,” Broussard told Fails, who was sitting in the hallway.
After two hours of IV fluids, one dose of antibiotics, and some Tylenol, Crain’s fever didn’t go down, her pulse remained high, and the fetal heart rate was abnormally fast, medical records show. Hawkins noted that Crain had strep and a urinary tract infection, wrote up a prescription and discharged her.
Hawkins had missed infections before. Eight years earlier, the Texas Medical Board found that he had failed to diagnose appendicitis in one patient and syphilis in another. In the latter case, the board noted that his error “may have contributed to the fetal demise of one of her twins.” The board issued an order to have Hawkins’ medical practice monitored; the order was lifted two years later. (Hawkins did not respond to several attempts to reach him.)
All of the doctors who reviewed Crain’s vital signs for ProPublica said she should have been admitted. “She should have never left, never left,” said Elise Boos, an OB-GYN in Tennessee.
Kass, the New York emergency physician, put it in starker terms: When they discharged her, they were “pushing her down the path of no return.”
“It’s bullshit,” Fails said as Broussard rolled Crain out in a wheelchair; she was unable to walk on her own. Fails had expected the hospital to keep her overnight. Her daughter was breathing heavily, hunched over in pain, pale in the face. Normally talkative, the teen was quiet.
Back home, around 7 a.m., Fails tried to get her daughter comfortable as she cried and moaned. She told Fails she needed to pee, and her mother helped her into the bathroom. “Mom, come here,” she said from the toilet. Blood stained her underwear.
The blood confirmed Fails’ instinct: This was a miscarriage.
At 9 a.m, a full day after the nausea began, they were back at Christus St. Elizabeth. Crain’s lips were drained of color and she kept saying she was going to pass out. Staff started her on IV antibiotics and performed a bedside ultrasound.
Around 9:30 a.m., the OB on duty, Dr. Marcelo Totorica, couldn’t find a fetal heart rate, according to records; he told the family he was sorry for their loss.
Standard protocol when a critically ill patient experiences a miscarriage is to stabilize her and, in most cases, hurry to the operating room for delivery, medical experts said. This is especially urgent with a spreading infection. But at Christus St. Elizabeth, the OB-GYN just continued antibiotic care. A half-hour later, as nurses placed a catheter, Fails noticed her daughter’s thighs were covered in blood.
At 10 a.m., Melissa McIntosh, a labor and delivery nurse, spoke to Totorica about Crain’s condition. The teen was now having contractions. “Dr. Totorica states to not move patient,” she wrote after talking with him. “Dr. Totorica states there is a slight chance patient may need to go to ICU and he wants the bedside ultrasound to be done stat for sure before admitting to room.”
Though he had already performed an ultrasound, he was asking for a second.
The first hadn’t preserved an image of Crain’s womb in the medical record. “Bedside ultrasounds aren’t always set up to save images permanently,” said Abbott, the Boston OB-GYN.
The state’s laws banning abortion require that doctors record the absence of a fetal heartbeat before intervening with a procedure that could end a pregnancy. Exceptions for medical emergencies demand physicians document their reasoning. “Pretty consistently, people say, ‘Until we can be absolutely certain this isn’t a normal pregnancy, we can’t do anything, because it could be alleged that we were doing an abortion,’” said Dr. Tony Ogburn, an OB-GYN in San Antonio.
At 10:40 a.m, Crain’s blood pressure was dropping. Minutes later, Totorica was paging for an emergency team over the loudspeakers.
Around 11 a.m., two hours after Crain had arrived at the hospital, a second ultrasound was performed. A nurse noted: “Bedside ultrasound at this time to confirm fetal demise per Dr. Totorica’s orders.”
When doctors wheeled Crain into the ICU at 11:20 a.m., Fails stayed by her side, rubbing her head, as her daughter dipped in and out of consciousness. Crain couldn’t sign consent forms for her care because of “extreme pain,” according to the records, so Fails signed a release for “unplanned dilation and curettage” or “unplanned cesarean section.”
But the doctors quickly decided it was now too risky to operate, according to records. They suspected that she had developed a dangerous complication of sepsis known as disseminated intravascular coagulation; she was bleeding internally.
Frantic and crying, Fails locked eyes with her daughter. “You’re strong, Nevaeh,” she said. “God made us strong.”
Crain sat up in the cot. Old, black blood gushed from her nostrils and mouth.
Crain is one of at least two pregnant Texas women who died after doctors delayed treating miscarriages, ProPublica found.
Texas Attorney General Ken Paxton has successfully made his state the only one in the country that isn’t required to follow the Biden administration’s efforts to ensure that emergency departments don’t turn away patients like Crain.
After the U.S. Supreme Court overturned the constitutional right to abortion, the administration issued guidance on how states with bans should follow the Emergency Medical Treatment and Labor Act. The federal law requires hospitals that receive funding through Medicare — which is virtually all of them — to stabilize or transfer anyone who arrives in their emergency rooms. That goes for pregnant patients, the guidance argues, even if that means violating state law and providing an abortion.
Paxton responded by filing a lawsuit in 2022, saying the federal guidance “forces hospitals and doctors to commit crimes,” and was an “attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic.”
Part of the battle has centered on who is eligible for abortion. The federal EMTALA guidelines apply when the health of the pregnant patient is in “serious jeopardy.” That’s a wider range of circumstances than the Texas abortion restriction, which only makes exceptions for a “risk of death” or “a serious risk of substantial impairment of a major bodily function.”
The lawsuit worked its way through three layers of federal courts, and each time it was met by judges nominated by former President Donald Trump, whose court appointments were pivotal to overturning Roe v. Wade.
After U.S. District Judge James Wesley Hendrix, a Trump appointee, quickly sided with Texas, Paxton celebrated the triumph over “left-wing bureaucrats in Washington.”
“The decision last night proves what we knew all along,” Paxton added. “The law is on our side.”
This year, the U.S. Court of Appeals for the 5th Circuit upheld the order in a ruling authored by Kurt D. Engelhardt, another judge nominated by Trump.
The Biden administration appealed to the U.S. Supreme Court, urging the justices to make it clear that some emergency abortions are allowed.
Even amid news of preventable deaths related to abortion bans, the Supreme Court declined to do so last month.
Paxton called this “a major victory” for the state’s abortion ban.
He has also made clear that he will bring charges against physicians for performing abortions if he decides that the cases don’t fall within Texas’ narrow medical exceptions.
Last year, he sent a letter threatening to prosecute a doctor who had received court approval to provide an emergency abortion for a Dallas woman. He insisted that the doctor and her patient had not proven how, precisely, the patient’s condition threatened her life.
Many doctors say this kind of message has encouraged doctors to “punt” patients instead of treating them.
Since the abortion bans went into effect, an OB-GYN at a major hospital in San Antonio has seen an uptick in pregnant patients being sent to them from across Southern Texas, as they suffer from complications that could easily be treated close to home.
The well-resourced hospital is perceived to have more institutional support to provide abortions and miscarriage management, the doctor said. Other providers “are transferring those patients to our centers because, frankly, they don’t want to deal with them.”
After Crain died, Fails couldn’t stop thinking about how Christus Southeast Hospital had ignored her daughter’s condition. “She was bleeding,” she said. “Why didn’t they do anything to help it along instead of wait for another ultrasound to confirm the baby is dead?”
It was the medical examiner, not the doctors at the hospital, who removed Lillian from Crain’s womb. His autopsy didn’t resolve Fails’ lingering questions about what the hospitals missed and why. He called the death “natural” and attributed it to “complications of pregnancy.” He did note, however, that Crain was “repeatedly seeking medical care for a progressive illness” just before she died.
Last November, Fails reached out to medical malpractice lawyers to see about getting justice through the courts. A different legal barrier now stood in her way.
If Crain had experienced these same delays as an inpatient, Fails would have needed to establish that the hospital violated medical standards. That, she believed, she could do. But because the delays and discharges occurred in an area of the hospital classified as an emergency room, lawyers said that Texas law set a much higher burden of proof: “willful and wanton negligence.”
No lawyer has agreed to take the case.
Mariam Elba contributed research. Cassandra Jaramillo contributed reporting. Andrea Suozzo contributed data reporting.“
