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50 years on: landmark supreme court case was rooted in civil rights struggle.

New York Times v. Sullivan was one of the greatest victories in history for free speech and a free press. But what is lost in the mists of time is that the Supreme Court viewed the case more as a civil rights case than as one about the First Amendment.

The case was argued Jan. 6, 1964, with the Rev. Dr. Martin Luther King Jr. in the courtroom. Five months earlier, King had led the March on Washington for Jobs and Freedom. The largest crowd in United States history marched on the National Mall for civil rights. Five months later, Congress passed the Civil Rights Act of 1964. On the day of the oral argument, Justice Arthur Goldberg sent King a copy of King's book of the Montgomery bus boycott--"Stride Toward Freedom"--asking for an autograph.

Half a century after the court's decision, Sullivan is more about press freedom than civil rights. The decision constitutionalized defamation and just about insulated the press from suits over stories about public officials or public figures--whether or not the stories were true. To win, a public official or public figure must prove not just falsity but also "actual malice," by which the court meant "reckless disregard of the truth" or knowledge of the falsity of the allegation. The decision was a monumental blow on behalf of what Justice William J. Brennan Jr. called the necessity of providing "breathing space" for democracy by allowing the media to make mistakes in their pursuit of a story.

"We consider this case," wrote Brennan, "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... Erroneous statement is inevitable in free debate, and (it) must be protected if the freedoms of expression are to have the 'breathing space' they 'need to survive.'"

Poisoning discourse?

To most First Amendment advocates, New York Times v. Sullivan is a touchstone of press freedom. Without it, timid editors would pull their punches and self-censor to avoid costly libel suits. Public officials would use libel as a way to punish media with the temerity to portray them in an unfavorable light--the way that public officials and public figures use defamation in Great Britain.

But not all First Amendment advocates are entirely pleased with the results half a century later.

"I wonder if there is libel anymore," said former New York Times lawyer Jim Goodale at a public ABA event commemorating the 50th anniversary of Sullivan. Sullivan--together with Section 230 of the Communications Decency Act governing online defamation--have resulted in "egregious examples of outrageous libel," he said, adding: "You have 2 million people libeling each other all day long."

Geoffrey Stone, the noted First Amendment expert and professor at the University of Chicago Law School, said at the same event that Brennan's blow for giving the democracy "breathing space" may have instead damaged political discourse. When Brennan wrote Sullivan, he was "thinking about mainstream, professional reporters," said Stone, who was a clerk for Brennan. Now, with the Internet, "people engaged in professional discourse ... are not professional at all.... Instead of dealing with professional reporters, it now includes every Tom, Dick and Harry on the Internet.... One can make the argument that the long-term consequence of Sullivan is to destroy credibility, and that has a damaging impact on democracy. ... Sullivan was situation-driven; it was about the civil rights movement, not the First Amendment.... But, as a First Amendment decision, it left a lot of the justices uncomfortable. ... Its consequences for public discourse became much more problematic.... False statements don't advance public discourse ... they poison discourse."

As a result of New York Times v. Sullivan, the law is more protective of free expression than are the ethical codes of major news organizations. The decision protects those who carelessly make false allegations about public figures and public officials. For that reason, it can protect poor, careless, unethical reporting that violates journalistic norms. Yet Brennan's call for protecting the "breathing space" of a democracy is a kind of utilitarian "greater good" argument that democracy will work better protecting the freedom to be wrong than it will be if the media are afraid to disclose the wrongdoing of the powerful.

"Heed Their Rising Voice'

Sullivan was about civil rights from the start. The controversy began with a mistake-riddled full-page advertisement in the New York Times with the stirring title "Heed Their Rising Voice." The ad had been placed by southern ministers--urging support for King and civil rights protesters--and by noted entertainers such as Harry Belafonte, Sidney Poitier and Marlon Brando, and celebrities such as Jackie Robinson and Eleanor Roosevelt.

The ad contained several mistakes. Most were minor, but at least one could have justified a libel judgment even under the actual malice standard. The minor mistakes were that King had been arrested four, not seven times as the ad had stated. Students were not singing "My Country 'Tis of Thee; they were singing the National Anthem. Students at Alabama State were expelled by the State Board of Education, but not for leading the demonstration at the Capitol; rather, they were expelled for demanding service at a lunch county in the Montgomery County Courthouse on a different day. Most of the student body, not the entire student body, protested the expulsion. They did it by boycotting class, not refusing to re-register. The biggest mistake was the claim that armed police had ringed student protesters at Alabama State and padlocked their dorm to "starve them into submission." The dorm had not been surrounded, nor were the officials trying to starve the students.

The New York Times advertising department made no effort to check the facts, instead relying on the good name of civil rights leader A. Philip Randolph, who vouched for the signatures on the ad. Had the Times checked its own morgue, it could have discovered the errors.

A 'Confederate' jury

Almost no one read the ad in Alabama. Only about 394 copies of the editorial circulated in the state, about 35 of which were distributed in Montgomery County where L.B. Sullivan was the police commissioner. Sullivan was not named in the ad, a fact that became important in the decision.

The person who noticed the ad and got the controversy started was himself a journalist, Grover C. Hall Jr., editorial editor of the Birmingham Advertiser. Hall wrote an editorial condemning the ad, titled, "Lies, lies, lies." Hall, who opposed segregation, was the son of a Birmingham Advertiser editor who won the Pulitzer Prize for opposing the Ku Klux Klan in the 1920s. But Hall Jr. thought that northern pressure caused pushback from the South. He also was irritated that the northerners turned a blind eye to racism in their own backyards.

The judicial handling of Sullivan's lawsuit against the Times was infected by segregationist bias. First, the Times had trouble finding a lawyer who would represent it in Alabama. Then the trial judge, Walter Berman Jones, denied the Times' efforts to remove the case to federal court, even though that ruling was contrary to legal treatise on the subject of jurisdiction that Jones himself had written. The 100th anniversary of the Confederacy fell during the trial, and Jones allowed the jurors to wear Confederate uniforms and pistols to court to commemorate the occasion. Sullivan could not prove damages, but several witnesses testified that they knew the ad referred to him because he was in charge of the Montgomery police. The jury returned a verdict of $500,000--a large sum at the time.

Nor was the verdict the only one that the Times faced in the South. Harrison Salisbury, the legendary Times reporter and editor, estimated that the Times faced about $3 million in libel and criminal libel verdicts in the South, all flowing from civil rights coverage. This situation came at a time when the nation's leading newspaper was financially vulnerable, having just started to recover from a financially damaging strike. George Freeman, a former New York Times lawyer, said that the advertising side of the Times argued in favor of the paper pulling out of the South editorially because of the financial threat of the libel suits.

Brennan addressed the issue of self-censorship in his opinion.

"Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot (survive)," he wrote, adding: "A rule compelling a critic of official conduct to guarantee the truth of all his factual assertions--and to do so on pain of libel judgments virtually unlimited in amount--leads to ... self-censorship."

More than once, Brennan alluded to the civil rights backdrop of the case. He wrote that the ad communicated "information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern." And later, he wrote that "the present advertisement as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection."

Brennan gave several reasons for providing more protection for speech critical of public officials than private individuals. One was that American history demonstrates that the First Amendment does not permit seditious libel. Seditious libel punishes criticism of the government. Brennan referred to the famous crisis of 1798 regarding the Sedition Act. That law made it a crime, punishable by prison and steep fines, to criticize public officials, including the president, then John Adams. The law was used to jail newspaper editors who supported Adams' political opponent, Thomas Jefferson. Brennan noted that the Sedition Act never had been tested in the Supreme Court. The controversy preceded the establishment of judicial review in the 1803 Marbury v. Madison decision. But Brennan said the "attack upon the Sedition Act's validity has carried the day in the court of history" and that "its invalidity has been assumed" by the justices of the Supreme Court.

Brennan's fight to save Sullivan

Although Sullivan appears today to be firmly rooted in the law, it faced severe challenges in the 1970s and 1980s on the court and in society. Lee Levine, the noted First Amendment lawyer, told the ABA forum on the 50th anniversary of Sullivan that the threat was real.

"Yes, there definitely was a time and place when Brennan was afraid Sullivan was at risk," he said.

"The Progeny," a book published on the 50th anniversary of the decision, describes Brennan's successful effort to nurture and save Sullivan. The book is written by Levine and Steve Wermiel, the former Supreme Court correspondent for the Wall Street Journal who conducted extensive interviews with Brennan before the justice's death. The book injects an ironic footnote to history: There was a striking difference between the public Brennan who believed passionately in the press and the private Brennan who had an uncomfortable relationship with the press.

Brennan confided that he didn't think the press did a good job of reporting on legal issues because reports on the Supreme Court lacked depth. He thought the press did not respect people's privacy, and he refused to hold press conferences because of the risk of being misquoted or misconstrued. The press coverage of Abe Fortas that led to his resignation from the court hurt Brennan. Brennan himself invested in a real estate trust recommended to him by another federal judge. When that became the subject of press reports, Brennan sold his interest, canceled all speaking engagements, quit the American Bar Association and the New Jersey bar as well.

But, on the court, Brennan continued his all-out effort to defend Sullivan against former allies and new conservative opponents.

Justice Byron R. White, who had joined Sullivan, soon served notice within the court that he did not entirely buy into the decision. He had been on board in Sullivan partly because of the civil rights backdrop. White had been President John F. Kennedy's assistant attorney general for civil rights before joining the court. But that same year he had grave reservations about the application of Sullivan in Garrison v. Louisiana. That case involved Jim Garrison, the controversial district attorney from New Orleans who later went on to claim he had found proof of a New Orleans conspiracy that led to the assassination of President Kennedy. The libel case did not involve the Kennedy assassination, however. Garrison had been in a fight with the judges in his parish, and held a press conference in which he attributed the big backlog of criminal cases to inefficiency, laziness, and excessive vacations of the judges. He also accused the judges of refusing to cover the expenses of undercover investigations of vice in New Orleans. He said: "The judges have now made it eloquently clear where their sympathies lie in regard to aggressive vice investigations by refusing to authorize use of the DA's funds to pay for the cost of closing down the Canal Street clip joints. ... This raises interesting questions about the racketeer influences on our eight vacation-minded judges."

Garrison was convicted under Louisiana's criminal libel law.

White drafted a strongly worded dissent saying that he would not protect the malicious liar's calculated falsehood. Brennan simply co-opted White by adopting much of the language from White's dissent about calculated falsehoods, while reaffirming Sullivan.

But the overall ruling was that Louisiana's criminal libel law violated Sullivan and was unconstitutional.

"The New York Times rule is not rendered inapplicable merely because an official's private reputation, as well as his public reputation, is harmed," Brennan wrote. "The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official's fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character."

Chief Justice Warren E. Burger, who came on the court after Sullivan, took steps to deny Brennan the chance to write opinions in defamation cases. When most of the court was ready to rule for the press, Burger would join the majority so he could assign the opinion to someone other than Brennan. By most accounts, the justices resented the obvious gamesmanship and appreciated the more straightforward way that Burger's successor, Chief Justice William Rehnquist, assigned opinions.

The differences between White and Brennan were particularly sharp in Dun & Bradstreet Inc. v. Greenmoss Builders Inc. in 1985. In that case, the credit-reporting service reported to five clients that Greenmoss was about to file for bankruptcy, and that the company had fewer assets that it actually controlled. Greenmoss won actual and punitive damages from the Vermont Supreme Court. White initially wrote a strong draft dissent in which he said that Sullivan had been wrongly decided. A worried Brennan wrote an elaborate defense of his landmark opinion. But that defense never saw the light of day because Justice John Paul Stevens came to Brennan to say he did not feel comfortable with it and that it was unwise to publicize the split on the court over Sullivan. Brennan pulled back.

The press should kiss Rehnquist

Even though Rehnquist had appeared to be a threat to Sullivan, he ended up expanding it in an important decision involving parody: Hustler Magazine v. Falwell, 1988.

The Rev. Jerry Falwell was a nationally prominent and politically influential preacher who frequently provided important support to conservative candidates and causes.

Larry Flynt, the publisher of pornographic Hustler Magazine, printed an ad parody patterned after the Campari liquor advertising campaign, in which celebrities talked about their "first times." Although the ad suggested through double entendre that the celebrities were talking about the first time they had sex, the ads actually talked about the first time that had drunk Campari. The Hustler parody said that Falwell's first time having sex was with his mother in an outhouse when they were both drunk. It also said Falwell only preached when he was drunk. A label in small type at the bottom of the ad read: "Ad parody--not to be taken seriously."

Falwell sued for emotional distress and had home-court advantage in his home state of Virginia, where he won a big judgment against Hustler for infliction of emotional distress--$100,000 in compensatory damages along with additional punitive damages. What few people knew about Rehnquist was that he had once been an avid amateur cartoonist in his days at Stanford University. One of the influential amicus briefs in the case was filed by the nation's editorial cartoonists. They pointed out that exaggeration, parody, sarcasm and hyperbole were their bread and butter. One cartoon that the lawyer preparing the brief left out was drawn when Rehnquist was in the midst of a difficult confirmation fight. That one showed Rehnquist in Ku Klux Klan robes trying to deny blacks the right to vote in his native Arizona. The cartoon played off of Rehnquist's controversial role as a young Republican election judge challenging the voting credentials of African-Americans in Arizona.

The brief--minus the Rehnquist cartoon --was obviously influential, as Rehnquist cited it in his opinion providing First Amendment protection to the Hustler cartoon. The chief justice wrote about the long history of hyperbolic political cartoons dating back to the cartoons that ridiculed Boss Tweed during the Tammany Hall corruption of the 19th century.

He wrote: "The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting, and is always controversial in some quarters.... Several famous examples of this type of intentionally injurious speech were drawn by Thomas Nast, probably the greatest American cartoonist to date.... The success of the Nast cartoon was achieved 'because of the emotional impact of its presentation. It continuously goes beyond the bounds of good taste and conventional manners.' "

Rehnquist conceded that "there is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard."

Rehnquist extended the Sullivan actual malice standard to parody and other hyperbolic speech. It is a somewhat unusual application of a standard that requires proof of actual malice, reckless disregard of the truth and knowledge of falsity. The Hustler ad was published with the knowledge that the claim of having sex with his mother in an outhouse was false.

Wermiel, the "Progeny" author, said Brennan was ecstatic with Rehnquist's opinion.

"Rehnquist ... wrote an opinion that Brennan could have written," Wermiel said. "Brennan said the press should just kiss Rehnquist for his opinion in Hustler v. Falwell. He could leave the court in peace. If Rehnquist could write that opinion, New York Times v. Sullivan was safe."
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Author:Freivogel, William H.
Publication:Gateway Journalism Review
Date:Mar 22, 2014
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