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‘Actual malice’

Howard Manly
‘Actual malice’
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. (Photo: AP)

Author: APChief 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.

Landmark “New York Times v. Sullivan” case redefined libel and enabled press to cover Civil Rights Movement without fear of economic reprisal

… 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 official …

Before Brennan’s opinion, delivered on March 9, 1964 and written for the unanimous court under Chief Justice Earl Warren, white Southerners hell-bent on preserving their “cultural traditions” were having a field day with the New York Times.   

One of those Southerners, L.B. Sullivan, the Montgomery, Ala. commissioner in charge of police, had already won a $500,000 libel verdict in an Alabama lower court. That decision was affirmed in 1961 by the Alabama Supreme Court which assessed another $500,000 in penalties. Standing in line were several other claims of disgruntled Southern officials, including a $500,000 suit by Montgomery Mayor Earl James and $1 million suit filed by Alabama Gov.  John Patterson.

The case would then go to the U.S. Supreme Court on Jan. 6, 1964 and become one of the seminal cases on freedom of the press in the nation’s history and establishing new standards for proving defamation. A public official, Brennan wrote, cannot recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

But at the time, none of that mattered to four black preachers, many of whom were lost in the shadow of Rev. Dr. Martin Luther King Jr.: Ralph Abernathy, Fred Shuttlesworth, Joseph Lowery and S.S. Seay  Jr. All four were also named in the suit against the New York Times. For these members of the Southern Christian Leadership Conference,  freedom of the press was not a theoretical issue but rather a tangible — and mounting  —  debt that Alabama courts were forcing them to pay.

As it was, Taylor Branch reported in the Pulitzer Prize-winning “Parting the Waters: America in the King Years 1954-63,” the automobiles of Shuttlesworth, Abernathy and Lowery had been sold at a state-ordered auction. Some of the Seay’s real estate was attached for quick sale. A lien had been fixed on the land Abernathy had inherited from his father, and lawyers were moving to discover other property that could be seized. Abernathy later disclosed that he stood to lose as much as $200,000.

And that was the point of all the legal challenges — to make their commitment to the Civil Rights Movement and fight against segregation so unbearable that they would pack up, shut up and stop bringing in those “outside agitators.”

From its beginning, Branch wrote, the Sullivan case “confronted the American court system with a delicate political dilemma … Eventually, the justices of the U.S. Supreme Court avoided the racial content of the facts by inventing a new standard.”

That in itself was especially difficult, largely because the specifics of the case revolved around a paid advertisement that mentioned no names and was not reviewed by a single reporter nor vetted by a single editor.

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.

The appeal was equally devastating. The case before the Alabama Supreme Court ended on Feb. 1, 1961. It was not without its moments of absurdity. Five members of the jury wore beards in preparation for centennial celebrations of the Civil War. Quite naturally, the defense attorneys objected to the Confederate symbols and argued that their presence created an atmosphere biased against the defendants.

Of course, that objection was overruled. Judge Walter B. Jones, who was presiding over the appeal, had been chosen to administer the oath of office to a Jefferson Davis stand-in at a ceremony marking the confederate’s 100th birthday. “After rejecting various mistrial motions,” Branch wrote, “Judge Jones moved the case swiftly to the jury, which assessed another $500,000 libel penalty against the defendants.”

Not until the case landed in the U.S. Supreme Court did reason come into play. In his opinion, Brennan took direct aim at the ad’s mistakes.

“That erroneous statements are inevitable in free debate,” Brennan wrote, “and that it must be protected if the freedoms of expression are to have ‘breathing space’ that they ‘need to survive.’ ”

On that point, Brennan later quoted a 1942 D.C. Court of Appeals decision in a Congressman’s libel suit based upon charges in a newspaper that he opposed a judicial appointment because the candidate was Jewish.

“Cases which impose liability for erroneous reports of political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors,” the unanimous decision read. “The protection of the public requires not merely discussion, but information. … Errors of fact, particularly in regard to a man’s mental states and processes, are inevitable. Whatever is added to the field of libel is taken from the field of free debate.”

There was no free debate with L.B. Sullivan.

Words mattered to him, as did the Southern way of life. At least that is what he told the officers of the local White Citizens Council and their honored guests  —  the top officials of the city, county and state police forces  —  during a celebration of “Law and Order” at the Montgomery City Hall.

Dan Wakefield, a writer for the Nation, attended the meeting and wrote a piece published in May 1960 that detailed what he described as “respectable racism.”

“Since the infamous Supreme Court decision rendered in 1954,” Sullivan said, referring to the landmark end of legalized segregation, “We in Montgomery and the South have been put to a severe test by those who seek to destroy our time-honored customs … I think I speak for all law enforcement agencies when I say we will use all the peaceful means at our disposal to maintain our cherished traditions.”

Sullivan didn’t stop there. “Not since Reconstruction have our customs been in such jeopardy,” he explained. “We can and must resist outside forces hell-bent on our destruction … we want these outside meddlers to leave us alone. If they do otherwise, we’ll do our best to ‘accommodate’ them here in Montgomery.”

But not everything was bad, Sullivan said before pointing out that white vigilante mobs were “cooperating” with law enforcement officials in protecting “cherished traditions.”

 “Spring is here, and birds are singing,” Sullivan said. “But with the help of our law enforcement people, the blackbirds aren’t gonna sing on the capital steps.”

This was the same Sullivan who allowed the mobs to beat and harass freedom riders without police intervention.

In one particular case, Abernathy and other members of the Montgomery Improvement Association, the group that led the Bus Boycott, had to rescue a group of freedom riders shortly after they arrived at the Montgomery bus station. But not before a mob had let loose with chains and clubs. Among those beaten was the justice department representative, John Seigenthaler, who was knocked unconscious.

As Branch described, an official of the Anti-Defamation League concluded several days later, after making careful inquiries, that “Police Commissioner L. B. Sullivan had conspired with mob leader Claude Henley to allow the mob 10 minutes to do with the freedom riders as they saw fit.”

It was not just about the Freedom Riders. Ordinary black citizens fell victim to racial attacks. One such attack was captured by the local Alabama newspaper: a woman shopper was blind-sided with a baseball bat. The newspaper published a photograph of the woman with the name of the attacker.

“The white photographer and reporter at the scene both said the police had stood by passively, and that the crack of the baseball bat on the woman’s head could be heard from a block away,” Branch wrote.

Of course, Sullivan blamed the newspaper for publishing the photograph. Grove Hall, the editor of the newspaper, was no fan of Sullivan, and while he divided the larger blame between “rash, misled young negroes” and “white thugs,” he dismissed Sullivan’s claim as ridiculous. “Sullivan’s problem is not a photographer with a camera,” Hall wrote. “Sullivan’s problem is a white man with a baseball bat.”

It’s hard to imagine these days that Sullivan’s case, given his history of rabid segregation and attempt to silence all those advocating for integration, made it to the nation’s highest court. That point was not lost on U.S. Supreme Court Justice Hugo Black who wrote a concurring opinion.

“The half-million-dollar verdict does give dramatic proof,” Black wrote, “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. The factual background of this case emphasizes the imminence and enormity of that threat.”

But the case rested with Brennan. He went back to James Madison and the founding father’s intent of the First Amendment.   

“In every state, probably in the union,” Brennan wrote, “the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this foundation it yet stands.”