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The whole truth
How an advertisement in the New York Times changed legal history
Although some foundational Supreme Court decisions—Brown v. Board of Education, for instance—have been the result of meticulous planning by activists who aggressively sought to change America through the judicial system, other equally important cases have ended up before the Court almost by accident, their parties focused more on winning the dispute at hand than on any broader ramifications a victory might bring. This is an account of one of the most influential Supreme Court cases in history, New York Times Co. v. Sullivan. It was a case indisputably a product of its times, with largely unforeseen consequences.
New York Times Co. v. Sullivan is likely the most important First Amendment case the Supreme Court has ever decided. Its story begins in the early 1960s in Montgomery, Alabama, as the Times was publishing daily coverage of the nascent civil rights movement. The case did not concern a newspaper article, however. Instead, it involved an advertisement written and paid for by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. Lester Bruce Sullivan, the plaintiff, was one of three Montgomery public officials who brought libel charges against the Times based on minor errors in the advertisement text. Although these—and other—suits filed against national news outlets by southern officials were aimed at curbing press coverage of the civil rights movement, in the end they backfired.
In January 1960, Martin Luther King Jr. endured tax audits orchestrated by Alabama Governor John Patterson, a segregationist who made it his practice to harass civil right leaders. Rather than fight, King chose to pay “under very strong protest” the roughly $1,600 in back taxes that Alabama officials claimed he owed. Notwithstanding this payment, a Montgomery grand jury indicted King on charges that he perjured himself when he signed his tax returns. If convicted, King faced up to five years in prison.
Taking up a full page of the newspaper on March 29, 1960, the committee’s advertisement (headlined “Heed Their Rising Voices”) attempted to raise money for King’s legal defense. The advertisement began by noting that southern black students were “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 Bill of Rights.” The students were being met, the text continued, “by an unprecedented wave of terror by those who would deny and negate that document.” The advertisement went on:
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.
The advertisement then described other incidents of violence and repression:
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 him with “perjury”—a felony under which they could imprison him for ten years. . . .
Nowhere in the text did the advertisement name or refer to any specific individuals responsible for harassing Dr. King or terrorizing the students.
The advertisement also listed the names of 64 people who supported it. These names included several famous public figures, such as Marlon Brando, Nat King Cole, Sammy Davis Jr., Eleanor Roosevelt, and Jackie Robinson. In addition, some time after the Times accepted the advertisement and before it was published, Bayard Rustin, the executive director of the committee and a leader in the civil rights movement, added to it the names of 20 southern leaders—all but two of whom were ministers. Included among them were the Reverends Ralph David Abernathy, S.S. Seay, Fred Shuttlesworth, and Joseph Lowery, all Alabama residents. Rustin decided that it would be unnecessary to get these men’s consent, because they all clearly supported the cause.
The Times‘s advertising acceptability department did not check the accuracy of statements in the advertisement against New York Times stories on file or through any other means. No one at the newspaper ever asked the individuals listed in the advertisement whether they had consented to the use of their names.
As it turned out, the committee’s advertisement contained some inaccurate statements that were slightly inconsistent with the Times‘s own reporting. Among them: Alabama State College students did demonstrate on the State Capitol steps, but they sang the National Anthem, not “My Country ‘Tis of Thee.” Although nine student leaders of the civil rights demonstrations in Montgomery were expelled from school, they were not expelled for demonstrating at the State Capitol, but for their participation in a sit-in at a snack shop in a local courthouse some days before. The dining hall was never padlocked, although in response to enormous pressure from state officials the school did ban unregistered students from the cafeteria. And at no time did the police “ring” the campus. Rather, the police were called to campus three times in response to student demonstrations protesting the expulsion of the nine student leaders. In one instance, the police blocked students who, shepherded by school administrators, were trying to leave the campus. When the students stepped onto a side street, they encountered the police, who were armed with tear gas and submachine guns. The Montgomery police ultimately took more than 30 students and a faculty member into custody.
The advertisement’s description of the harassment of Dr. King was also slightly inaccurate. King was arrested four times, not seven, and it is not clear that he was ever assaulted by the police. King’s home was bombed in 1956, right after he began leading the Montgomery bus boycott, but his wife and infant son were unharmed. Another attempt to bomb King’s home was made in 1957, but the bomb failed to go off, and no member of the King family was in the house at the time. Although the inaccuracies in the advertisement were relatively minor, they opened the door to a defamation lawsuit.
The advertisement initially escaped the notice of most Alabamans. Then, a week after it was published, Ray Jenkins, the city editor for the Alabama Journal, spotted it while reading back issues of the Times during his lunch hour. Jenkins immediately typed up an article summarizing the advertisement and noted that it contained at least one factual misstatement. Grover Hall, the editor-in-chief of the Montgomery Advertiser, saw Jenkins’s article, reviewed a copy of the advertisement, and wrote an editorial in his own paper attacking it. “There are voluntary liars, there are involuntary liars,” Hall declared. “Both kinds of liars contributed to the crude slanders against Montgomery broadcast in a full-page advertisement in the New York Times March 29.” Hall showed the advertisement to Calvin Whitesell, an attorney in Montgomery who had previously represented the city and city officials, and told him to “take [the article] down and show it to City Hall” because it “libeled every one of them.”
At the time, L.B. Sullivan was the public health and public safety commissioner. He did not read the New York Times and did not learn about the advertisement until Whitesell showed it to him. Sullivan’s jurisdiction included the supervision of not only the police department but also the fire, scales, and cemeteries departments. That is to say, the various department heads reported to him. Sullivan’s prior campaign platforms had clearly embraced a commitment to continued segregation, and he was harshly critical of the demonstrators in Montgomery.
On April 8, Sullivan sent a retraction letter to the New York Times and the Reverends Abernathy, Shuttlesworth, Seay, and Lowery. By joining the four Alabama ministers as defendants in the case, he effectively prevented the Times from removing the case to federal court. None of the ministers responded to the demand letter; they took the position that they had nothing to retract because they had never authorized the advertisement in the first place.
The Times did not publish a retraction or an apology. It wrote a letter to Sullivan dated April 15, 1960, asking him to clarify his claim: “We have been investigating the matter, and are somewhat puzzled as to how you think the statements in any way reflect on you.” Sullivan did not respond directly. On April 19, 1960, his lawyers filed a lawsuit in the Circuit Court of Montgomery County against the New York Times and the four ministers. Sullivan did not claim that he suffered any actual pecuniary damages as a result of the advertisement. Instead, he sought presumed damages, which do not require proof of actual damages and are permitted in some libel actions because reputational damages are hard to prove. Given that they had no actual damages on which to base their damage claim, it is perhaps not surprising that Sullivan’s lawyers had disagreed about how much to seek in damages in the complaint. One lawyer wanted to ask for $1 million; another wanted to ask for $100,000. They compromised at $500,000. Five other Alabama officials instituted similar libel actions based on the same advertisement. In all, the New York Times and the four ministers faced $3 million in potential damages arising out of the publication of the advertisement.
The Times was also facing other libel lawsuits challenging its reporting. Times reporter Harrison E. Salisbury had written a series of articles about racial conditions in Birmingham, Alabama, reporting that Birmingham officials had held civil rights activists incommunicado for days, ignored bombing attacks on black churches, black homes, and Jewish synagogues, and engaged in wiretapping and mail interception. As in Montgomery, the local Birmingham paper attacked the Times, publishing a front-page story with the headline, “New York Times Slanders Our City—Can This Be Birmingham?” and an editorial complaining that the Times‘s reporting was “maliciously bigoted, noxiously false, viciously distorted.” Seven Birmingham officials brought libel suits against the Times and Salisbury seeking a total of $3.15 million in damages. In addition, Salisbury was indicted on 42 counts of criminal libel. The Times was more concerned about the Salisbury cases than the Sullivan case; after all, the Sullivan case concerned an advertisement by third parties.
There is no doubt that southern officials were hoping to use libel law to curb press coverage of the civil rights movement. By 1964, media outlets ranging from the Associated Press and CBS to the Saturday Evening Post and Ladies Home Journal were facing almost $300 million in potential libel damages in southern states. In September 1960, the Montgomery Advertiser published the headline “State Finds Formidable Legal Club to Swing at Out-of-State Press.”
The Sullivan case went to trial on November 1, 1960. The judge, Walter B. Jones, was an ardent segregationist and white supremacist. In one of his weekly columns for the Montgomery Advertiser published two years afterward, he attacked the “hundreds of newspapers and magazines published in the North” that were “libeling the white race and doing their best to reduce it to the level of inferior races.” He said that “columnists and photographers have been sent to the South to take back to the people of the North untrue and slanted tales.”
For a long time, the lawyers for the Times thought the best way to defeat Sullivan’s lawsuit was on personal jurisdiction grounds. The Times argued that its tiny circulation in Alabama—394 copies out of a national daily circulation of 650,000—was insufficient to subject it to personal jurisdiction in that state. As one commentator put it, in the Alabama market, the Times was “a small, dissident publisher of unpopular viewpoints.” So invested was the Times in its jurisdictional argument that for two-and-a-half years after Sullivan filed suit, no Times reporter or stringer was permitted to set foot in Alabama. Ironically, this approach ended up crippling the paper’s ability to cover the civil rights movement and thereby gave the Alabama officials, for a time, at least, exactly what they wanted. In any event, Judge Jones ultimately rejected the paper’s argument, holding that the Times had sufficient minimum contacts in the state.
The case proceeded to a jury trial, and the atmosphere in the courtroom reflected the prejudice within the state. The courtroom was racially segregated. When one of Sullivan’s lawyers, Calvin Whitesell, read the text of the advertisement to the jury, he repeatedly substituted the word “nigger” for “Negro.” When the lawyer for the ministers protested, Whitesell explained that he was simply using the pronunciation of the word “Negro” that he had grown up with. In the transcript, the stenographer referred to the white lawyers as “Mr. Nachman” and “Mr. Embry,” but referred to black lawyers as “Lawyer Gray” and “Lawyer Crawford.” From the bench, Judge Jones also refused to use the honorific “Mr.” to refer to the black lawyers. The trial took place during a Centennial Celebration commemorating the 100th anniversary of the Confederacy. Incredibly, Judge Jones allowed some jurors to sit in the jury box wearing Confederate uniforms, which included pistols and holsters; a Confederate flag was placed behind the bench.
Because Judge Jones had already determined that the advertisement was libelous, he told the jury that it needed to decide only whether the statements were “of and concerning” Sullivan and, if so, what his damages should be. The jury was also instructed that it could award punitive damages if it found that the publication was made with malice. Judge Jones rejected the defendants’ request for special verdicts. This meant that the jury was not required to indicate which of the challenged statements was “of and concerning” the plaintiff; rather, the jury was asked simply whether the statements in general referred to him.
On November 3, 1960, the jury deliberated for a little more than two hours before returning a $500,000 verdict in favor of Sullivan. The Alabama Supreme Court affirmed the decision on August 30, 1962.
On March 9, 1964, the Supreme Court voted unanimously to reverse and remand the decision of the Alabama Supreme Court. Justice Brennan wrote the majority opinion, which was joined by five other justices. In it, Brennan famously declared, “[W]e 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.” Given this commitment, Brennan said, the key question was whether the statements at issue in Sullivan had lost First Amendment protection because they were false and allegedly defamatory.
Brennan rejected the argument that only truthful speech was entitled to constitutional protection. He expressed concern that holding speakers strictly liable for any factual errors would have a chilling effect on political dialogue, because “erroneous statement is inevitable in free debate.” He concluded that protecting false speech is essential to protecting vigorous public debate, because otherwise speakers’ fears of liability would cause them to “‘steer far wide of the unlawful zone.'”
Given his strong words, one might have expected Brennan to conclude that libelous statements concerning the public duties of government officials were entitled to absolute immunity. Instead, he created a conditional privilege for false defamatory statements. The privilege is lost if the statements were made with “actual malice”—if the speaker was engaged in a “calculated falsehood” knowing the statements were false, or if the speaker was recklessly indifferent to their truth or falsity. Brennan drew the actual malice standard from the common law of libel in a minority of states. He specifically cited with approval a case from the Supreme Court of Kansas—introduced in an amicus brief by the American Civil Liberties Union—that adopted an actual malice standard as a way of offering broad protection for political discussions.
It is hard to say whether public debate would be any less vigorous today if the Court had not decided Sullivan the way it did. To be sure, the case helped the press play an important role in the success of the civil rights movement. Andrew Young, a close personal assistant to Martin Luther King Jr., said that the Sullivan case was important to him because the press “was essential to the conduct of non-violent demonstrations. . . . It was no accident that our demonstrations were always in the morning; that we completed them by two o’clock in the afternoon so that we could make the evening news; and so that reporters could file their deadlines for the coming day.” Without the protection from libel suits that Sullivan afforded, the New York Times and other national publications would not have been able to provide the extensive coverage of the movement that was so integral to its success.
For almost 50 years, Sullivan‘s commitment to “uninhibited, robust, and wide-open” public debate has had a deep impact on the Court’s First Amendment canon. Subsequent decisions by the Court to protect hate speech, lewd and vulgar expression, incitement, sexually explicit expression, and other forms of offensive speech can all be traced back to this landmark case.
The New York Times did not expect to end up before the Supreme Court when it agreed to print an advertisement for the defense fund of Martin Luther King Jr. And when it appealed the verdict in the Sullivan libel suit to the Supreme Court, it was most concerned about protecting its ability to report on the civil rights movement. The Times prevailed, but Sullivan has not merely served to protect vigorous reporting during times of great social change. It has also served as the foundation for this country’s firm commitment to the freedom of speech, even when it is speech that we hate.
Mary-Rose Papandrea is an associate professor at Boston College Law School who has written on the First Amendment as it relates to national security, intellectual property, and the electronic media, among other themes. Her essay is drawn and adapted with permission from a chapter she contributed to First Amendment Stories (copyright © 2011 by Thomson Reuters/Foundation Press), edited by Richard W. Garnett and Andrew Koppelman.
Read more by Mary-Rose Papandrea