FULL-PAGE ADVERTISEMENTS in newspapers are common, and involve far more than selling merchandise. Some are political in nature, endorsing candidates for public office or urging support for particular positions, and may often include a request for funds to further the cause. Such an ad appeared in the New York Times at the end of March 1960, and asked readers to send in money to help civil rights activists in their struggle to end racial segregation in the South. The ad detailed some of the dangers facing Martin Luther King Jr. and others, and also alleged several acts of violence against King and student activists.
The advertisement led the Montgomery, Alabama, commissioner of public safety, L. B. Sullivan, to file a libel suit against the Times, and the decision is a landmark in the development of freedom of the press as guaranteed in the First Amendment. But one has to look at the Sullivan case not just in terms of the press clause, but in the larger context of the civil rights revolution then taking place in America.
Not too many people read the New York Times in Montgomery, Alabama, but in early April 1960, a few who did became greatly upset. One of them was Merton Roland Nachman, the preeminent libel lawyer in Montgomery, and certainly one of the best in the state. Although he considered himself a political moderate, Nachman, like many others in the South, felt increasingly frustrated by the attention northern newspapers like the Times gave to the actions of what he considered a radical minority causing all the trouble. He immediately spotted some factual errors in the ad that might be enough to make it libelous per se under Alabama law. He cut out the page and took it over to the three city commissioners, and told the police commissioner, L. B. Sullivan, that there was no doubt that even though he had not been directly named in the ad, he could bring an action against the Times. The ad cast aspersions on Sullivan because it attributed to the police force the lead complicity in bombing the home of Martin Luther King Jr., and more generally in fomenting a police-state terrorism that left blacks fearful for their lives not only from roving mobs but also from police who either directly aided the rioters or who stood by passively and did nothing to protect African American citizens.
Sullivan and the other city commissioners needed no convincing. On the one hand they were frustrated by their inability to put an end to the civil rights uprising, and on the other they objected to how the northern media, supposedly without real knowledge of life in the South, portrayed them as bullies and terrorists. Nachman began proceedings on behalf of the commissioners in state court, but before he was finished he would be arguing before the U.S. Supreme Court, and its decision would mark a new day in the interpretation of the First Amendment’s press clause.
Although known primarily for its ruling on the meaning of freedom of the press, New York Times v. Sullivan (1964) is as much a civil rights case as a First Amendment opinion. The Court’s landmark decision in Brown v. Board of Education (1954) did not cause the civil rights movement, but it fanned the spark that had been there into a roaring flame. Moderate voices on both sides were soon drowned out, and diehard southern whites clashed frequently with African Americans no longer willing to live in a segregated society. Although relatively peaceful compared to the battles that had to be fought to end apartheid in South Africa, the civil rights movement in the United States saw its share of violence and bloodshed.
Immediately following the decision in Brown, three states—South Carolina, Georgia, and Mississippi—adopted constitutional amendments authorizing the legislature to end public education rather than desegregate the schools. The governors and attorneys general of Alabama, Mississippi, and other Deep South states refused the Court’s invitation to file briefs in the implementation hearings, a clear signal they did not intend to be bound by those decisions. In Virginia, Sen. Harry F. Byrd called for “massive resistance,” while Gov. James Byrnes of South Carolina, a former member of the high court, declared bluntly that “South Carolina will not now nor for some years come to mix white and colored children in our schools.” In Georgia, Herman Talmadge pledged that as long as he occupied the governor’s mansion there would be no “Negroes and whites associating with each other socially or in our school systems.” In addition to the rhetoric, one southern state after another enacted measures to frustrate the courts and prevent desegregation of the schools.
Most ominously, the level of violence escalated. Eight black men were lynched in 1955, and several others killed for daring to assert their rights. In Belzoni, Mississippi, whites shot the Rev. George Lee at point-blank range for insisting on his right to vote. When Authorine Lucy tried to enroll at the University of Alabama in February 1956, white students rioted and almost lynched her; she had to flee and then was formally expelled. In Birmingham a mob attacked the great black singer Nat “King” Cole when he sang at a whites-only concert in the city auditorium. The Ku Klux Klan, the white-sheeted nightriders who had been quiescent in the South since the 1920s, sprang back to life and burned crosses throughout the South. In Alabama a group of whites savagely beat and castrated a black man and then told him, “This is what will happen if Negroes try to integrate the schools.” When eight black students tried to enter Central High School in Little Rock, Arkansas, under a court order, Gov. Orville Faubus used the national guard to prevent them from doing so, leading President Dwight Eisenhower to send in the 101st Airborne Division to restore order and to protect minority students—the first time federal troops had been deployed on southern soil since Reconstruction. All over the South, as the noted southern-born historian C. Vann Woodward lamented, “the lights of reason and tolerance began to go out under the insistent demand for conformity and a malaise of fear spread over the region.”
Montgomery, Alabama, became a major battleground in the struggle, epitomized by the famous bus boycott that began on December 1, 1955, when a black seamstress, Rosa Parks, boarded the Cleveland Avenue bus at City Square and took a seat in the white section. A few stops later the bus driver ordered her to surrender her place in favor of a white rider, and she refused. Within a few days the city’s African American population organized itself to boycott the city’s bus lines and either to walk or find alternative ways to get to work and then home again. The Montgomery Improvement Association (MIA), a group of black civic leaders working to improve the lot of the black community, named a newcomer to town, the twenty-six-year-old Rev. Martin Luther King Jr., as its head. At first the MIA hoped the economic pressure would lead the city’s white power structure to seek a compromise, but that failed to happen, and then in late January 1956, King’s home was bombed by unknown persons. Recognizing that the boycott by itself would not be enough, and worried that the bombing was just the first omen of an escalating violence, the MIA then filed suit in federal court seeking an end to bus segregation.
In turn the white leaders of the community filed suit in state court under the Alabama Anti-Boycott Act of 1921, and on February 21, 1956, a grand jury returned indictments against eighty-nine African Americans, twenty-four of whom were ministers, for the misdemeanor of conspiring to boycott a lawful business. So far the fight had stayed relatively peaceful, with the exception of the bombing of King’s home, with each side trying to win its case in the courts. Northern media, however, flocked to cover the boycott, and instead of reporting on what southern whites saw as the prevailing civility between the two groups, focused on Klan violence and the hostility of lower-class segregationists. When the Supreme Court mandated the end of segregation on the bus lines in Gayle v. Browder in December 1956, die-hard segregationists turned to other methods to counter civil rights activity.
By early 1958 the largest organization in Montgomery was the White Citizens’ Council, which demanded absolute subservience by whites to the segregationist line. When, for example, a group of white women organized a series of weekly interracial prayer meetings at a black Roman Catholic hospital, the council singled them out for public ridicule. After they all received threats that their husbands’ businesses would be destroyed, most of the white women publicly recanted their racially moderate beliefs, though one of them, librarian Juliette Morgan, committed suicide rather than do so.
In local and state elections die-hard segregationists played the race card for all it was worth, and easily defeated moderates who wanted to find an accommodation with the court orders. In 1958 former attorney general John Patterson won election as Alabama governor by conducting a campaign of unalloyed racism that handed George C. Wallace, the favorite, a surprising loss. In the wake of Patterson’s victory, Wallace declared that he would “never be out-niggered again.” Patterson got a local state judge, Walter Burwyn Jones, to issue a court order outlawing in Alabama the National Association for the Advancement of Colored People (NAACP), the nation’s oldest civil rights group, which sponsored nearly all of the lawsuits attacking segregation. Finally, in January 1959 Montgomery city officials made clear that they were not going to retreat from their hard line, and ordered that all thirteen city parks and the city zoo be sold as a way of evading a federal court order mandating their integration.
In March 1959, segregationist power surfaced again in the Montgomery municipal elections, and white racists took special satisfaction from the election of Lester Bruce (L. B.) Sullivan over incumbent police commissioner Clyde Sellers.
L. B. Sullivan was born in Records, Kentucky, on March 5, 1921, the son of a farmer and a schoolteacher. In 1941 he entered the Army Air Force and, following his father’s example, joined the military police, where he rose to the rank of sergeant while stationed at Maxwell Field in Montgomery. Following World War II, Sullivan remained in Montgomery, where he raised a family of three children and held several different jobs. Sullivan gradually made helpful political connections, attaching himself to the rising political fortunes of Gordon Persons, who would later be elected governor of Alabama. In 1947 Sullivan was chosen by the Alabama Public Service Commission to be first inspector and then chief inspector of field activities. In 1951 Governor Persons appointed Sullivan director of public safety for Alabama, a position he held until 1955.
By 1954 Sullivan enjoyed considerable public notice for his role in cleaning up Phenix City, Alabama, a small town immediately across the Chattahoochee River from Columbus, Georgia, and the Fort Benning military reservation. Phenix City had earned the title of “the most corrupt city in America.” Its problems were mostly economic; it was the poor relation of prosperous Columbus, which benefited directly from the army’s massive presence. Phenix City, positioned as it was on the wrong side of the river, derived only the indirect consequences of the U. S. Army’s presence: gambling, prostitution, illegal liquor sales, and loan sharking. Sullivan, as head of the state police, helped conduct a highly successful cleanup campaign that led Phenix City to win an All-American City award in 1955, and gave Sullivan a reputation as an effective and honest law officer.
Sullivan left his post as director of public safety, returning temporarily to private life. From 1955 to 1957 he worked as a consultant for the International Association of Chiefs of Police, attended the Federal Bureau of Investigation Police Academy, and graduated from the Northwestern University Traffic Institute.
Through his personal life, Sullivan spun a web of politically useful contacts among the middle and lower-middle classes of the city’s eastside. He was an active club worker, holding memberships in the Alcazar Shrine, the American Legion, the Elks, the Eagles, and the Andrew Jackson Lodge of the Masonic Order. His religious fundamentalism complemented and reinforced his racism; he was at once a Baptist and a member of the Ku Klux Klan. In his 1959 campaign for Montgomery police commissioner, Sullivan promised voters “the continuation of Southern traditions and customs” at the same time that he also declared his intention to promote “industrial growth and development for our city, county, and state.” White moderates distrusted Sullivan and his political ambitions. He was, according to one local businessman, “smooth, polished, relatively sophisticated for Montgomery. He had read a few books.” He was also pragmatic and opportunistic, qualities that he demonstrated in his campaign.
Sullivan succeeded in painting his opponent, the ardent segregationist Clyde Sellers, as weak on the race issue and public order because of an incident involving Martin Luther King Jr. During the summer of 1958, King’s closest associate and friend, the Rev. Ralph D. Abernathy, had an affair with one of his female parishioners. On August 29 the woman’s husband, Edward Davis, attacked Abernathy in the basement of the minister’s office, first with a hatchet and then a gun. The minister fled from his church onto the street, where fortuitously two Montgomery police officers took Davis into custody. When King arrived at the courthouse to aid Abernathy, Montgomery police, already ruffled by the bizarre behavior of both Davis and Abernathy, arrested King for loitering. He was convicted and fined ten dollars. Police Commissioner Sellers, however, decided to pay King’s fine rather than have him jailed as a martyr. In the 1959 commission race, Sullivan effectively exploited this incident, charging Sellers with using “kid gloves to handle social agitators.”
Once in office Sullivan implemented the reform of the police department designed to fulfill his campaign pledge to undertake “fair and impartial enforcement of laws.” The new commissioner reorganized internal police operations, created neighborhood patrols, developed outreach programs through the police department for the city’s youth, and established a police reserve “composed of people from all walks of life.” These reforms coincided with a growing level of civil rights disturbances in the Alabama capital that placed great pressure on the police force and on Sullivan’s leadership.
Sullivan’s first major crisis occurred in February 1960, when the sit-in movement reached Montgomery. The first black sit-in, protesting segregated restaurant facilities, began at the F. W. Woolworth lunch counter in Greensboro, North Carolina, on the first of the month. Within days the protest spread through the rest of the upper South, moving to Charlotte, Raleigh, then Rockhill, North Carolina, and on to Orangeburg, South Carolina, and Nashville, Tennessee. The movement was unique, and in its novelty lay a source of profound concern for the white South. Until the sit-in movement began, whites had largely inspired and led most of the major civil rights battles. There were, of course, the exceptions, of which the bus boycott in Montgomery was the most notable. But in the sit-ins young blacks began taking an aggressive role that captured the attention of the national media, including the New York Times, whose editors dispatched, as they had done during the bus boycott, additional correspondents to cover breaking civil rights developments.
On February 25, thirty-five students from all-black Alabama State College sought service at the snack bar in the basement of the Montgomery County Courthouse. The students were rebuffed and arrested. The following day Gov. John Patterson, who was also the ex officio chairman of the State Board of Education, demanded expulsion of the students from the public college. On February 27, most of the eight hundred students at Alabama State marched to the state capitol to protest Patterson’s actions. Governor Patterson and Commissioner Sullivan decided to apply officially sanctioned force and intimidation against the students. While state and Montgomery police stood idly by, bat-wielding Klansmen waded into the group of black students. The attack went unpunished, even though the Montgomery Advertiser ran pictures of the incident, with several members of the mob clearly identified. The Advertiser’s editor, Grove Hall Jr., condemned the attack and rebuked Sullivan for failing to halt it and to seek arrests of those who had perpetrated it. At the same time, the extremist press praised the incident. The Montgomery Home News, for example, observed that “the crisp crack of a hickory bat on a Negro head snapped the people out of their apathy into the realization that the steady, cold siege against their way of life was now breaking out in . . . obviously Communist-inspired racial strife.” It served, the editor said, as “a signal for the white Christian race to stand up and be counted.”
The civic culture of Montgomery, therefore, was already under considerable stress when the New York Times published a full-page ad, titled “Heed Their Rising Voices,” on March 29, 1960.
Prominent northern civil rights leaders had no qualms about raising money to defend Martin Luther King Jr. and the other activists arrested in the South. A group including such civil rights veterans as Bayard Rustin, A. Phillip Randolph, and the Rev. Harry Emerson Fosdick determined to take out a full-page ad in the Times that would not only condemn the violence in Montgomery but also raise funds for the cause. There had to be at least enough money generated to cover the $4,552 the Times charged for a full-page ad. Rustin wanted the ad to be hard-hitting, and he prodded the author, John Murray, to liven it up, telling him to add the names of a number of prominent people as endorsers to make it more appealing. When Murray protested that they had not been contacted, Rustin assured him that there would be no problem, since they had all been involved in the movement and had lent their names previously. Although the Times had a department to check on the accuracy of ads submitted to it, the man staffing that office when the copy came in signed off without questioning the material, because it “was endorsed by a number of people who are well known and whose reputation I had no reason to question.”
The first four of the ten paragraphs in the ad dealt specifically with the sit-in movement. Appealing to the Constitution and the Bill of Rights, it told how “thousands of Southern Negro students . . . engaged in widespread non-violent demonstrations . . . had boldly stepped forth as the protagonists of democracy.” The third paragraph dealt specifically with events in Montgomery. It claimed that eight hundred students from Alabama State College had marched to the state capitol and on its steps had sung “My Country ‘Tis of Thee,” after which the student leaders had been expelled from the college. It also claimed that “truckloads of police armed with shotguns and tear-gas” then “ringed the Alabama State College campus.” When students protested these actions by refusing to reregister for classes, “their dining hall was padlocked in an attempt to starve them into submission.”
The fifth and sixth paragraphs focused on the plight of Martin Luther King Jr. So-called “Southern violators of the Constitution” were determined to destroy King and to answer his “peaceful protests with intimidation and violence.” The sixth paragraph in particular claimed that they had “bombed [King’s] home almost killing his wife and child,” that they had “assaulted his person,” and had him arrested “seven times—for ‘speeding,’ ‘loitering,’ and similar ‘offenses.’”
The remaining four paragraphs pleaded not just for moral support “but material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights.” Below these paragraphs were two blocks of endorsements. The first contained sixty-four names, including such prominent figures as Eleanor Roosevelt, Marlon Brando, Harry Belafonte, Shelley Winters, Nat King Cole, and Frank Sinatra. The second block listed ministers associated with the Southern Christian Leadership Conference, including four from Alabama. To the right was a coupon to be clipped and returned with a contribution.
There is no question why the committee chose to purchase a page in the Times or to whom they were directing their appeal. Founded in 1851, the New York Times was the most prestigious newspaper in the country. It had an average daily circulation of 650,000, a number that doubled on Sunday. Most of these were sold in the New York City area and the northeast corridor stretching from Boston to Washington, D.C. Elsewhere far fewer copies circulated, with most of them sold to libraries, colleges, and to a few individuals. On an average weekday in Alabama, the Times sold about 390 papers and about 2,500 on Sunday; of this, only about 35 were sold in Montgomery County.
Rustin and his colleagues directed their ad not at the South, but at the sympathetic white, progressive, and intellectual leadership of the North. The invocation of “Southern violators” echoed prevailing northern stereotypes of Dixie as a racist, violent, and backward area. The ad named no individuals and made no reference to any officeholder, but painted a damaging picture of police forces in the South, who were in fact earning a reputation for their brutality in dealing with civil rights demonstrators. The group had no idea that the ad would have any effect in the South.
It would not, at least in the terms that its signers anticipated—a check sent in with the coupon. But thanks to Merton Nachman, the Times and several of the signers soon found themselves facing libel charges in Alabama court.
The law of defamation traces back at least to the thirteenth century, and has its roots deep in feudal society. If one lord of the realm impugned the reputation of another, the result would be a fight to the death as the insulted baron defended his honor by the sword. To remove questions of reputation from the tilting field to the courts prompted the enactment of De Scandalis Magnatum in 1275. Reenacted and enlarged several times, the law made it a crime to slander the peers of the realm. In 1606 Sir Edmund Coke prosecuted a printer who had published a poem making fun of two archbishops of Canterbury. The case, De Libellis Famosis, set out the standard that a person may libel another by harming their reputation, even by saying things that are true, whether the object of the libel is a public official or a private person, or whether he be dead or alive (one of the archbishops was in fact dead at the time the poem had been published). The punishment for libel could be fine, imprisonment, or cutting off the ears of the offender.
From these beginnings grew the laws of libel. Two forms of libel—blasphemy, or libel against religion, and obscenity, libel against the moral norms of society—need not detain us here. Seditious libel, the criticism of the government or its officials for either policy or actions, had been used against protesters during the First World War (see Chapter 14). Subsequent court decisions had made it harder to use seditious libel against critics of the government, and in any event it was a charge that could only be brought by a government against an individual. The Alabama case involved the fourth form, private libel, or the defamation of an individual, and that person’s recourse under law. Private libel is an area of tort law that is still very much alive today, although somewhat circumscribed following the decision in the Sullivan case. Much of the law of defamation is state law, both statutory and common, and is a descendant of centuries of haphazard and often baffling evolution.
Reputation has always been an important consideration in society, and in the Middle Ages punishment for slander could be terrible indeed. The Laws of Alfred the Great, compiled in the late ninth century in England, held that “if anyone is guilty of public slander, and it is proved against him, it is to be compensated with no lighter penalty than the cutting off of his tongue.” By the thirteenth century recourse had been moved to ecclesiastical courts, which treated slander as a spiritual offense, but after the English Reformation jurisdiction moved to the common law courts, where it has remained since.
The law of defamation crossed the Atlantic with the English colonists, and according to some scholars took up a good part of the business of colonial courts. Truth initially mattered not, only whether the defendant had said or printed something maligning the reputation of the plaintiff. Traditionally such suits had two parts. In one, dealing with the “law of the case,” the judge ruled whether the statement was libelous; in the second, known as “the facts of the case,” a jury ruled whether the defendant was indeed the culprit who had uttered the malicious remarks. There had to be evidence that a third party had heard or read the comments. If Tom charged Dick with cheating at cards, that did not constitute a libel. If, however, Tom publicly told Harry that Dick cheated, that was a libel—even if Dick actually had cheated.
A major change to libel law occurred in the American trial of John Peter Zenger in 1735, when Zenger’s lawyer, Andrew Hamilton, got a jury to agree that it, and not the judge, would determine if a statement were libelous, and that in its considerations, truth would be a complete defense. That is, if the defendant could show that what had been said was true, there was no libel. To use the example above, if Dick sued Tom, Tom would be held innocent if he could in fact prove that Dick had cheated. In the two centuries between Zenger and Sullivan, truth as a defense became embedded in American libel law, but with significant provisions to protect the reputations of individuals.
Among those provisions were what some scholars have called “galloping presumptions.” To begin with, defamatory statements were presumed false, so the burden was not on the plaintiff to prove that what had been said was false, but on the defendant to prove that it was true. Truth, however, is not always easy to discern. Facts can be determined, i.e., the attack on the World Trade Center took place on September 11, 2001, is a fact and is not under dispute. But how does one prove that the mayor of a town awarded municipal contracts based on cronyism? Just because John is a friend of the mayor does not mean that his company is not better qualified to do the work than others.
A second rule involved intent. In criminal law intent is an essential element of a crime; if someone knows or should know that a particular act violates the law, and does it anyway, that constitutes criminal intent. In libel law, historically, whether the statement resulted from malice, ignorance, negligence, or just plain misfortune did not matter. One published at one’s peril, and the law presumed malice—evil intent—from the simple fact of speech or publication.
Third, the aggrieved party did not have to show any actual injury to reputation, since this too was inferred from publication. Nor did the plaintiff have to prove any specific monetary damage, but could claim almost any amount. It would then be up to the jury to determine how much money, if any, would be awarded for damages.
All these rules, of course, gave the advantage to the plaintiffs. Most states recognized a difference between fact and opinion and protected the right to express an opinion, but only so far as the factual basis of the opinion was accurate. Here again the burden of proof of accuracy lay with the speaker or publisher, who would lose this privilege if any of his statements proved factually incorrect. A few states allowed the privilege if there were only minor errors in fact made either through inadvertence or in the good-faith belief that they were correct. Alabama, however, took a stricter view, and this is why Merton Nachman was so certain that under Alabama law his clients had a sure-fire libel suit against the New York Times.
Nachman’s confidence grew out of his knowledge that the ad did indeed contain factual errors. The students sang “The Star-Spangled Banner” and not “My Country ‘Tis of Thee” on the state capitol steps. Students had been expelled from Alabama State College not in connection with the protest at the capitol, but after seeking service at the Montgomery County Court House. Police were deployed in large numbers, but they did not “ring” the campus, and there had been absolutely no effort to padlock the dining hall. King had been arrested four times, not seven, and four of the ministers listed as sponsors testified that they had never seen the ad, and that their names had been used without their permission. Under Alabama law the expression of opinion was protected only so far as it rested on a completely accurate factual basis. Even one error could open the speaker to libel charges, and Nachman had more than one error to rely upon.
Although the Times quickly sent an apology to Sullivan and others, it did no good. The paper faced multiple suits from the three Montgomery city commissioners, the city commissioners of Birmingham and Bessemer, and Governor Patterson. Each plaintiff sought $500,000 in damages, except for the governor, who sought $1 million. Although the suits also named four of the ministers who signed the ad, the main target was clearly the northern press. If the Times could be forced to pay out several million dollars in damages, all of the northern media—and not just the Times—would become very wary of how they covered the civil rights disturbances in the South. L. B. Sullivan and others may have felt aggrieved at their depiction as “Southern violators,” but they also knew they would have a far easier time putting down civil rights activism without the press reporting their every move.
Nachman’s confidence proved well-founded. The Sullivan trial took less than three days, and the jury brought in a verdict for the plaintiff in just two hours and twenty minutes for the full amount that Sullivan had demanded—$500,000. The next day, to drive home the point, the (Montgomery) Alabama Journal noted that the verdict “could have the effect of causing reckless publishers of the North . . . to make a re-survey of their habit of permitting anything detrimental to the South and its people to appear in their columns.” On appeal, the Alabama Supreme Court upheld the judgment on August 30, 1962.
The Times, of course, had to appeal the verdict on up to the U.S. Supreme Court, and to do so had to find grounds that would somehow nullify Alabama’s harsh libel law. While the suit no doubt had the added objective of silencing the press, L. B. Sullivan had in fact been libeled as state law defined it at that time, and in a community where one’s good name meant a great deal. Although the civil rights movement had triggered many legal stratagems by southern states to block desegregation, in this case Alabama had not concocted a new law, but had simply applied a customary rule as to fair comment—a rule, by the way, similar to libel law in most other states, northern as well as southern, at the time.
The Times brought in a noted constitutional scholar, Herbert Wechsler of the Columbia Law School—a man, as one reporter described him, “of formidable intellect and formidable presence.” Wechsler’s job would be to convince the U.S. Supreme Court that the First Amendment’s press clause protected newspapers against the type of libel suit brought by L. B. Sullivan. It would be a challenging task, as he had very little precedent to rely upon.
The First Amendment applied literally to the federal government—Congress shall make no law—but the Court had incorporated it and applied the press clause to the states as well in Near v. Minnesota (1931). But while the states could no longer deny the press rights granted to it under the Constitution, the Supreme Court had pretty much left libel laws intact and under the jurisdiction of the states. The only prior high court case dealing with libel had been Beauharnais v. Illinois in 1952, when a 5–4 Court had upheld the conviction of white supremacist Joseph Beauharnais under an Illinois statute prohibiting group libel, i.e., defamation of a group or class of people. Speaking for the majority, Justice Felix Frankfurter declared “libelous utterances are not within the area of constitutionally protected speech.” In a dissent that seems prescient in the context of the Sullivan case, Justice William O. Douglas noted that “today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a Negro will be hauled before a court for denouncing lynch law in heated terms.” And, in fact, the next libel case the Court would hear involved African Americans protesting the violence they faced in Alabama, and the New York Times carrying an advertisement about that violence.
Had it been a simple libel case, the Court might not have even taken it. But the case involved the nation’s preeminent newspaper and centered on the civil rights movement that had been triggered in large part by the Court’s own rulings. The Court had little choice, and observers believed that in taking the case the justices would overrule the lower court verdict. The trick would be in how to do that, given the lack of precedent in this area.
On March 9, 1964, Justice William Brennan delivered the opinion of the Court. In his first sentence he noted how rarely the high court decides to take a fresh look at a whole body of law. “We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.” After reviewing the facts of the case, the errors in the advertisement, and the lower court judgments, Brennan announced: “We reverse the judgment. We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.”
Brennan quickly disposed of Sullivan’s reliance on earlier decisions of the Court that had left libel law to state jurisdiction, saying that in none of them had criticism of public officials and their policies been at issue. In addition, the Court had often looked past labels such as contempt or breach of the peace to see how the conduct fit into the larger scheme of constitutional safeguards, and today it did so with the label of libel. He then went into a history of the expansion of First Amendment protections in the previous four decades, and quoted at length from Justice Brandeis’s opinion in Whitney v. California (1927). In that case the majority had upheld Anita Whitney’s conviction for allegedly calling for the violent overthrow of the government. Brennan termed Brandeis’s dissent the “classic formulation” defining the meaning of free speech. Several subsequent cases had then expanded the parameters of First Amendment protection, and from them he drew this conclusion:
We consider this case 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. . . . 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.
The notion that public debate should be “uninhibited, robust, and wide-open” proved to be the most-quoted phrase of the decision, because it summed up what Holmes and Brandeis and other champions of free speech had intended—that in a democracy all opinions, even unpleasant ones or ones delivered unpleasantly, had to be allowed so that full debate could take place on important issues. In 1964 no issue affected American society more than civil rights, and outdated technicalities of state tort law could not be used to silence that debate.
Brennan also used the case to review prior efforts to limit speech, such as the Sedition Act of 1798, which although “never tested in this Court, the attack upon its validity has carried the day in the court of history.” Although it would be another five years before the Court once and for all buried the crime of seditious libel in Brandenburg v. Ohio, for all practical purposes that ancient offense could no longer be prosecuted in the United States after Sullivan.
Recognizing that Sullivan and others might try again in a new libel suit, Brennan then added another layer of protection to critics of governmental actions by noting that appellate courts had the power, because of the constitutional issues involved, to review the facts in libel cases to ensure that local juries had not decided improperly. Normally appellate courts only review questions of law, but here the Court was essentially warning states that it would not allow attacks on the press because of technicalities such as the matter of minor errors. Such errors, if made in good faith and were indeed minor, could not be used as a launching pad for libel suits. Only deliberate distortions of the facts, made with evil intent, could be the basis for a suit. The majority did not give the press total immunity from libel, but absent actual malice in deliberately falsifying information, honest criticism and reporting, even with some factual errors, would be protected.
Brennan reversed the judgment of the Supreme Court of Alabama, and remanded the case to that court for further proceedings “not inconsistent with this opinion.” Given the tenor of the ruling, there was little the Alabama court could do except overturn the judgment and dismiss the case.
Although all nine justices supported Brennan’s conclusions, only five others signed onto it. Three members of the Court—Hugo Black, William O. Douglas, and Arthur Goldberg—believed the First Amendment went even further to create an absolute privilege for critics of official conduct, even if that criticism was maliciously false.
Black, joined by Douglas, charged that the facts of the case showed that “state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials.” He believed that the suits against the newspaper had but one purpose—to harass those who criticized Montgomery officials’ actions against civil rights activists. While this case involved race, it could be used in any situation in which newspapers or television shone a spotlight on questionable governmental policies. The Constitution dealt with this threat, he claimed, by granting an absolute immunity to the press for any criticism of government officeholders.
Justice Goldberg also entered a concurrence, in which Douglas joined, in which he argued that even if the press did not have the total immunity suggested by Black, it had a greater level of constitutional protection than the Court majority allowed. “In a democratic society,” he wrote, “one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel.”
The decision is important in two areas. First, the underlying rationale of unfettered speech as an essential part of political dialogue greatly expanded the meaning of the First Amendment, both in terms of speech and press. By bringing criticism of government policy and officials within the ambit of protection, it enormously broadened the parameters of free speech and press. Second, Brennan’s opinion took what had previously been regarded as purely private law, a matter left to each state’s common law, and constitutionalized the tort law of defamation. In subsequent cases the Court would refine just how far protection of the press went and what still remained in state law to protect the reputation of truly private citizens.
As the excesses of white racists mounted, many southern moderates decided that the time had come to abandon the old ways, and they turned against the symbols of hard-line resistance like L. B. Sullivan. He lost his bid for reelection to a third term in 1967, but when George Wallace won election as Alabama’s governor in 1971 on a platform of “segregation now, segregation forever,” he named Sullivan as commissioner of state prisons. These were not happy years for Sullivan, as he was buffeted on one side by demands from reformers for massive changes in the antiquated prison system and on the other by legislators unwilling to provide funds for the much-needed overhauls. He resigned on July 24, 1975, just five days before federal court hearings began that culminated in orders directing the state to end overcrowding and physical violence in the prisons.
Sullivan served for a while as deputy commissioner of prisons and then became executive assistant to Alabama attorney general Bill Baxley. Sullivan died of a heart attack at home on June 12, 1977, but in death as in life he proved controversial. When he was inducted into the Alabama Peace Officers Hall of Fame in 1989, some black city officials in Montgomery protested, labeling Sullivan as “a famous racist and hater of black people and anything they stood for.” In 1998 the Alabama Senate passed a resolution to name a new prison after Sullivan, but this gesture also evoked a strong response from the black community. The Rev. Joseph Lowery, one of the ministers Sullivan had sued over the Times advertisement, declared that Sullivan had represented “the Old South, with all the venom and vitriol and oppression” that it contained.
Beauharnais v. Illinois, 343 U.S. 250 (1952)
Brandenburg v. Ohio, 359 U.S. 444 (1969)
Brown v. Board of Education, 347 U.S. 483 (1954)
De Libellis Famosis, 3 James 1 (Star Chamber, 1606)
Gayle v. Browder, 352 U.S. 903 (1956)
Near v. Minnesota, 283 U.S. 697 (1931)
New York Times v. Sullivan, 376 U.S. 254 (1964)
For a broad overview of the First Amendment and its development, see Harry Kalven Jr., A Worthy Tradition: Freedom of Speech in America (1988). Libel is explored in Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel (1986). Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (1991), provides a fine case study, but one should also see Kermit L. Hall, “Cultural History and the First Amendment: New York Times v. Sullivan and Its Times,” in Sandra F. VanBurkleo et al., eds., Constitutionalism and American Culture: Writing the New Constitutional History (2002), 267–306, for a better understanding of the southern notion of “honor” and how it influenced the case in Alabama.