We the People: NY Times v. Sullivan saves freedom of the press

The Supreme Court’s decision in The New York Times v. Sullivan (1964) checks all the definitional boxes of a landmark ruling. It revolutionized the law of libel in the United States. It saved freedom of the press and the First Amendment. It empowered journalists to challenge representations of governmental officials. It lit the way for penetrating reporting necessary to properly inform the citizenry on the great issues of our time.

Without the Sullivan ruling, the media would not have been able to produce the searching coverage that illuminated the Civil Rights movement and exposed the secrets and deceit that surrounded the Viet Nam War and Watergate. Without the decision, Americans would live in darkness, a condition that would jeopardize the future of our democracy.

The vitality of the Sullivan decision is of enduring importance. As readers know, the standards set forth by the court are in play in Sarah Palin v. The New York Times, a libel action currently making headlines in newspapers across the country.

The Sullivan case emerged from the Civil Rights movement and the efforts of Dr. Martin Luther King in Montgomery, Ala., to draw attention to the cruelty of racism and segregation in southern states. On March 29, 1960, supporters of Dr. King created an advertisement that ran in The New York Times. Among other things, the advertisement declared that southern officials — “Southern violators of the Constitution” — had employed illegal measures and tactics against Dr. King and his colleagues in the movement, and had arrested King “seven” times on trumped up charges. The ad mentioned no names, but J.B. Sullivan, a commissioner in Montgomery in charge of the city police, sued the Times for libel. He claimed that his position and responsibilities for supervision of the police department would lead readers to identify him as one of the “violators.”

The Sullivan case began in an Alabama state court, where Sullivan prevailed at trial. The judge held that the advertisement was libelous and awarded Sullivan $500,000 in damages, the largest libel award in Alabama’s history.

At the time, Alabama libel law, like that in other states, included three elements. First, any publication that was challenged as libelous was presumed to be false. The publisher bore the burden of proving it to be true. Second, damage was assumed, if the publication somehow harmed the plaintiff’s (Sullivan’s) reputation. Third, the law declared that the publisher’s fault was presumed. That is, it didn’t matter if the publisher did his best to obtain the truth. He would pay.

The Times could not satisfy the requirement that the advertisement was true in all respects. It conceded that it contained errors. Dr. King had been arrested, for example, four, not “seven” times. These misstatements, the trial judge concluded, meant that the Times had libeled Sullivan and would have to pay the awarded damages.

The ruling threatened to crush the newspaper, which, at the time, was barely profitable. Sullivan’s lawsuit, like other libel actions brought by white southerners against Northern media, reflected a strategy of threatening newspapers with financial ruin, if they continued their coverage of the Civil Rights movement. When Sullivan came before the court, there were libel claims of $300 million against Northern media. The threat of bankruptcy for a few misstatements might well constitute a deterrent to coverage of the Civil Rights movement or, indeed, any other probing reports of the acts of government officials. Newspapers clearly needed protection. Freedom of the Press needed protection. The First Amendment needed protection. In Sullivan, the Supreme Court provided it.

At the time of Sullivan, no libel judgment had ever been held to violate freedom of the press. In fact, since the founding of the republic, libel had been considered beyond the protection of the First Amendment. The Times, through the arguments of its attorney, the eminent constitutional law scholar, Herbert Wechlser of the Columbia Law School, sought to reverse the tides of history.

Wechlser invoked the infamous Sedition Act of 1798, which punished Americans for “harshly” criticizing governmental officials. This law — the law of seditious libel — was never tested in the Supreme Court, but certainly condemned by the court of history and the court of public opinion as dangerous to freedom of the press and the enterprise of republicanism. Wechsler told the court in Sullivan that contemporary libel law punished criticism of public officials, just as the Sedition Act had done.

Wechsler argued to the court that there should be no test of truth for criticism of governmental officials. If libel actions could prevail against newspapers for any missteps, for the slightest errors and misstatements, the effect on individuals and newspapers would be so chilling as to discourage criticism of public officials for fear of facing damages for libel. A chilling effect on freedom of speech and press would represent a critical threat to democracy itself. Wechsler told the court: “There never is a time when it would serve the values enshrined in the Constitution to force the press to curtail its attention to the tensest issues that confront the country.”

Justice William Brennan, nominated to the Supreme Court by President Dwight Eisenhower, wrote the opinion for the court, one considered by scholars to be among his very best. We turn to his landmark opinion next week.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at NDWTPColumn@gmail .com and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.