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'Actual malice'

Howard Manly | 2/9/2011, 6:11 a.m.
Landmark “New York Times v. Sullivan” case redefined libel and enabled press to cover Civil Rights Movement without fear of...
Chief Justice Earl Warren and the eight Associate Justices of the Supreme Court are shown on Nov. 19, 1962 in Washington. From left, seated: Associate Justices Tom C. Clark and Hugo L. Black; Chief Justice Earl Warren; Associate Justices William O. Douglas and John M. Harlan. From left, standing: Associate Justices Byron R. White, William J. Brennan, Jr., Potter Stewart and Athur J. Goldberg. AP

The Committee to Defend Martin Luther King and the Struggle for Freedom in the South collected $4,800 for a full-page ad in the New York Times. Both groups sought donations to help pay for Dr. King’s growing legal bills.

Bayard Rustin, then Struggle for Freedom’s executive director, sat down with Harry Belafonte and drafted the fund-raising ad. Entitled “Heed their rising voices,” a phrase lifted from a New York Times editorial, the ad offered a brief history of the efforts to prosecute and intimidate King.

“As the whole world knows by now,” the ad read, “thousands of Southern Negro students are engaged in widespread 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.”

The ad went on to charge:  “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.”

King’s perjury indictment, the ad continued, was part of a southern strategy “to beat this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle.”

The appeal ran on March 29, 1960. A week later, the attorney general of Alabama announced that Gov. Patterson had instructed him to examine the possibility of suing the New York Times and the four preachers for libeling the official representatives of Alabama.

Though no one was named in the ad, Alabama officials argued that they were personally damaged by implication. They based their libel claim primarily on the general characterization of the southern law enforcement officials as “violators of the constitution” in their actions to suppress the sit-ins.

Of the 600,000 copies of the newspaper were printed, only a couple hundred went to Alabama. In fact, Sullivan only learned of the ad through an editorial in a local newspaper. He sued on April 19, 1960 in the Alabama Circuit Court of Montgomery County.

To a certain extent, the text of the ad did contain several factual errors: the Montgomery students had sung “the Star Spangled Banner,” not “My Country ‘Tis of Thee,” as the ad read. And the police never had “ringed” the Alabama state campus, as the ad stated, but instead they had massed along one border.

But at the time, factual mistakes were enough to win a libel case, largely because First Amendment protections stopped at state lines. And the legal merits of the case weren’t really the point anyway  —  as the New York Times and four preachers learned in court during the hearing of the initial Sullivan case. Fearing his presence would inflame white jurors, defense attorneys urged Dr. King not to appear in court, or for that matter, in Montgomery.

The trial started as expected: an all-white juror was selected. As Branch reports, there followed an “unceremonious argument over courtroom use of the word ‘nigger,’ which was won in the end by the plaintiff’s lawyer who told the judge that he was merely following the customary pronunciation of a lifetime.” It took three days before the jury came back with a guilty verdict and an award to Sullivan of $500,000 in damages.