Libel decision shut down segregationists clinging to Jim Crow

To understand why New York Times v. Sullivan is one of the great First Amendment victories of the past century, take a journey back to the segregated America of the1960s.

America was a place where racial segregation and discrimination were the law of the land and a way of life in the South, Midwest and much of the North. Restaurants and hotels were segregated by law. Billboards called for Earl Warren’s impeachment. George Wallace stood in the schoolhouse door. Parents spit on Black children integrating Central High School in Little Rock. J.Edgar Hoover’s FBI snooped on the Rev. Martin Luther King Jr. and tried to get him to commit suicide. The FBI sent anti-King editorials to friendly newspapers, such as the St. Louis Globe-Democrat. One Globe editorial printed immediately before the King assassination said, “Memphis could be only the prelude to a massive bloodbath in the Nation’s Capitol [sic] ….”

All across the South, segregationist politicians tried to intimidate the national press by winning big libel judgments in biased southern courthouses. TV images of Bull Connor’s police using fire hoses and police dogs on teenage demonstrators were changing the minds of people in the Midwest and North. And the segregationists wanted to shut them up.

The $500,000 judgment that L.B. Sullivan won against the Times in the trial court – even though he hadn’t been mentioned by name – was a small indication of the financial threat to the media posed by libel suits.

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. Justice Hugo Black noted in his concurrence the opinion wrote that the Times had 11 libel suits against it in Alabama alone, seeking a total of $5.6 million. CBS faced another $1.7 million, he noted. 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.

In short, New York Times v. Sullivan wasn’t just about protecting the press. It was about making democracy work. News stories and commentaries about cutting back on its protections in the wake of Sarah Palin’s failed libel suit against the Times, sometimes skip over how important the decision was at a seminal moment in American history.

Breathing room for democracy

The case was argued in the Supreme Court on Jan. 6, 1964 with the Rev. Dr. Martin Luther King Jr. in the courtroom. Five months earlier, Dr. King had led the huge March on Washington for Jobs and Freedom. The Kennedys had pleaded with King to cancel the March for fear it would backfire. Instead the largest crowd in United States history marched on the National Mall for civil rights. Five months after the case was argued, Congress passed the Civil Rights Act of 1964. (On the day of the oral argument, Justice Arthur Goldberg sent down to King a copy of King’s book of the Montgomery bus boycott – “Stride Toward Freedom” – asking for an autograph.)

Justice William J. Brennan Jr. emphasized the importance 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.’”

The decision constitutionalized defamation law and just about insulated the press from suits over stories about public officials or public figures – whether or not the stories were 100 percent accurate. 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. 

‘Heed Their Rising Voices’

The controversy began with a mistake-riddled full-page advertisement in The New York Times with the stirring title “Heed Their Rising Voice.” That admonition was aimed straight at Congress quoting a New York Times editorial that had urged, “Let Congress heed their rising voices for they will be heard.” The ad had been placed by southern ministers leading the civil rights movement 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. Dr. King had not been been arrested seven times, just four. Students were not singing “My Country ‘Tis of Thee; they were singing the National Anthem. Students were expelled by the Alabama State Board of Education not for leading a demonstration at the Capitol, but rather for demanding service at a lunch counter 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.  

Confederate regalia at trial 

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 himself opposed segregation and 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 courts’s handling of Sullivan’s lawsuit against the Times was infected by segregationist bias. 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 100 year 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  $500,000 judgment, a large sum at the time.

Justice Brennan, the liberal spark plug of the Warren Court 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: “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 that 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.

Another reason for removing some libel protection from public officials was that the court had recognized that statements made by public officials acting within their public duties could not be actionable unless made with actual malice. Citizen critics should be on a level playing field with public officials, he wrote.

Finally, the court ruled that Sullivan could not collect because he was not named in the ad. The ad was not “of and concerning” Sullivan.

Chief Justice Earl Warren had chosen Brennan to write the opinion because he was the mostly likely justice to win over the entire court for a unanimous opinion. Brennan was known as a schmoozer on the court who was extremely successful in creating majorities and sometimes unanimous opinions. Brennan succeeded in the Sullivan case when Justice John Harlan withdrew his dissent at the last moment.

As a matter of First Amendment theory, the Sullivan decision was viewed as a victory for the theory advanced by Alexander Meiklejohn basing First Amendment theory on self-government. As Meiklejohn put it, “The principle of free speech springs from the necessities of the program of self-government. It is not the Law of Nature or of Reason in the abstract. It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage.” Meikleljohn went on to stress that his source of protection for free speech protected speech about public matters rather than private ones. Because the source of the freedom flows “from the necessities of self-government by universal suffrage” it assures only “speech which bears directly, or indirectly, upon issues with which the voters have to deal…considerations of matters of public interest.” It does not protect private speech about private matters in the same way, he argued.

Public figure, public concern

In 1967, soon after Sullivan, the court extended the actual malice standard to public figures. The court took the action in two cases involving famous figures, one of whom is more remembered for his notoriety than fame. He was retired major general Edwin Walker, who was accused in an Associated Press story of having urged students at the University of Mississippi to riot to bar the admission of the first black student, James Meredith. 

The other public figure case involved Georgia football coach Wally Butts, who was accused in an article in the Saturday Evening Post of fixing a 1962 football game with legendary Alabama football coach Bear Bryant. The court decided that both Butts and Walker were public figures. Butts won and Walker lost. The court differentiated the two stories because the AP story on Walker was on deadline and did not show any violation of journalistic standards. The Butts story, on the other hand, was an investigative report that the magazine had plenty of time to research. The non-sports reporter who wrote the story based it on a source who claimed to have overheard a telephone conversation between Butts and Bryant. The source was unreliable, having written bad checks. In addition, the reporter did not check out the story thoroughly. For example, he did not interview another person who was said to have overheard the conversation.

Chief Justice Warren explained the extension of Sullivan to public figures by noting that the political process does not provide a check on the activities of political figures as it does on public officials. For that reason, he concluded, “public opinion may be the only instrument by which society can attempt to influence their conduct.” In a society where the distinctions between the public and private sphere are blurred, public figures “often play an influential role in ordering society,” and they have access to the media to “influence policy and to counter criticism of their views and activities.”

Prior challenges 

Today’s campaign to overturn NYT v. Sullivan is not the first. During the 1980s two big national libel suits by two generals left media lawyers wondering how much protection Sullivan provided. Gen. William Westmoreland sued CBS for its stories criticizing the general’s conduct of the Vietnam War. Israeli Gen. Ariel Sharon sued Time magazine for its stories about his involvement in the Israeli killling of Palestinian refugees in camps in Lebanon during the Israeli invasion of Lebanon. Both lawsuits were wars of attrition that involved huge defense costs and that damaged the credibility of the media involved.

But the challenge within the court was more serious. Brennan himself didn’t like the way the press had covered the Abe Fortas scandal, which forced Fortas off the court. Justice Byron R. White, had been on board in Sullivan partly because of the civil rights backdrop. But White soon became known for decisions limiting press prerogatives – refusing to recognize the reporter-source confidential relations, allowing principals to censor student newspapers in the St. Louis case of Hazelwood v. Kuhlmeier and allowing police to use warrants to search newsrooms, a decision Congress overturned.

William H. Rehnquist also was a critic of NYT v. Sullivan when he came on the court, but ended up as its savior, expanding Sullivan 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 won a big judgment against Hustler for infliction of emotional stress – $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. 

The brief 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, who was associated for many years during the post-Civil War era with Harper’s Weekly. In the pages of that publication Nast conducted a graphic vendetta against William M. ‘Boss’ Tweed and his corrupt associates in New York City’s ‘Tweed Ring.’ It has been described by one historian of the subject as ‘a sustained attack which in its passion and effectiveness stands alone in the history of American graphic art.’ Another writer explains that 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.’

“Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast’s castigation of the Tweed Ring, Walt McDougall’s characterization of Presidential candidate James G. Blaine’s banquet with the millionaires at Delmonico’s as ‘The Royal Feast of Belshazzar,’ and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln’s tall, gangling posture, Teddy Roosevelt’s glasses and teeth, and Franklin D. Roosevelt’s jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them.”

Rehnquist conceded “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, and we are quite sure that the pejorative description “outrageous” does not supply one.”

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 actually false

Steve Wermiel, a Brennan biographer, recalls Brennan was ecstatic with Rehnquist’s opinion. “Rehnquist…wrote an opinion that Brennan could have written. 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.”

Heed their rising voices – errors in boldface

The New York Times

NEW YORK, TUESDAY, MARCH 29, 1960

“The growing movement of peaceful mass

demonstrations by Negroes is something

new in the South, something understandable….

Let Congress heed their rising voices,

for they will be heard.”

– New York Times editorial

Saturday, March 29, 1960

Heed their rising voices

As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.  In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom….

In Orangeburg, South Carolina, when 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold.

In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus.  When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.

In Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte, and a host of other cities in the South, young American teen-agers, in face of the entire weight of official state apparatus and police power, have boldly stepped forth as protagonists of democracy.  Their courage and amazing restraint have inspired millions and given a new dignity to the cause of freedom.

Small wonder that the Southern violators of the Constitution fear this new, non-violent brand of freedom fighter…even as they fear the upswelling right-to-vote movement.  Small wonder that they are determined to destroy the one man who, more than any other, symbolizes the new spirit now sweeping the South-the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest.  For it is his doctrine of non-violence which has inspired and guided the students in their widening wave of sit-ins; and it this same Dr. King who founded and is president of the Southern Christian Leadership Conference-the organization which is spearheading the surging right-to-vote movement.  Under Dr. King’s direction the Leadership Conference conducts Student Workshops and Seminars in the philosophy and technique of non-violent resistance.

Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence.  They have bombed his home almost killing his wife and child.  They have assaulted his person.  They have arrested him seven times-for “speeding.” “loitering” and similar “offenses.”  And now they have charged with “perjury” under which they could imprison him for ten years.   Obviously, their real purpose is to remove him physically as the leader to whom the students and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South.  Their strategy is to behead this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle.  The defense of Martin Luther King, spiritual leader of the student sit-in movement, clearly, therefore, is an integral part of the total struggle for freedom in the South.

Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King.  But this is one of those moments in the stormy history of Freedom when men and women of good will must do more than applaud the rising-to-glory of others.  The America whose good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs…

We must heed their rising voices-yes-but we must add our own.

We must extend ourselves above and beyond moral support and render the 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.

We urge you to join hands with our fellow Americans in the South by supporting, with your dollars, this Combined Appeal for all three needs-the defense of Martin Luther King-the support of the embattled students-and the struggle for the right-to-vote.

Your Help is Urgently Needed…NOW!!

William H. Freivogel is publisher of GJR, a professor of media law at Southern Illinois University Carbondale and a member of the Missouri Bar.