Bob Wilson: 1964’s other step for liberty

July 4, 2014 

Fifty years ago, President Lyndon B. Johnson signed the Civil Rights Act of 1964, a law that struck directly at the complex infrastructure of discrimination against black Americans – what people then called Jim Crow.

The 1964 law is justly celebrated as a major step toward freedom for African-Americans, its impact magnified the next year with passage of the Voting Rights Act that empowered Southern blacks in the political realm.

But there was another advance for freedom in 1964, one almost unknown today outside the First Amendment community: New York Times v. L.B. Sullivan.

If you’ve never heard of this pivotal Supreme Court decision, you’ve certainly benefited from it every time you read this newspaper or watched the news on television.

Times v. Sullivan grew out of the civil rights movement, which in 1960 placed an advertisement, “Heed Their Rising Voices,” in the Times. The ad is what we call today an “advertorial,” and it was harshly critical of segregation-forever officials in Montgomery, Ala.

The ad was also an appeal for support for the Rev. Martin Luther King Jr.’s Southern Christian Leadership Conference, then the front-line organization fighting Jim Crow.

Before Times v. Sullivan, criticism of public officials was much riskier than it is now. It’s estimated that $300 million in libel judgments were outstanding when the Supreme Court upended the rules of defamation.

After Times v. Sullivan, a public official alleging injury to his or her reputation has to prove that defamation is an intentional and reckless act by a journalist – the actual malice standard that is the mighty engine of the Supreme Court’s 9-0 decision.

That’s why public officials rarely file defamation lawsuits, seeking instead a correction or retraction of an error of fact.

For this, journalists thank the principal actor in Times v. Sullivan, one L.B. Sullivan, who in 1960s was one of three public safety commissioners in Montgomery. Although he was not named in the advertorial, which charged that terror against blacks was endemic among Montgomery officials, Sullivan cried defamation and asked the Times for a retraction.

The Times refused. Sullivan sued and won a $500,000 judgment against the newspaper, which then took the case to the Supreme Court.

In fact, the advertorial did contain inaccuracies. It said Dr. King had been arrested seven times in Montgomery; the real number was three. Among other errors, the ad also falsely said the dining hall at Alabama State College had been padlocked by authorities in “an attempt to starve them (students agitating for civil rights) into submission.”

Sullivan argued that the Times failed to check the advertorial for inaccuracies and, furthermore, recklessly published it with intent to harm his reputation.

In other words, the Times published with malice aforethought.

Not so fast, said the Supremes. Although the advertorial was not pristine prose, neither the Times nor any other newspaper had the resources to fact-check every statement in an opinion article.

The issue, the court said, was whether the Times was guilty of actual malice. The newspaper argued that it did not publish the advertorial with intent to harm Sullivan or any other Montgomery official.

Fortunately for free speech, the court agreed. Had it not, we would have at best an anemic climate of public criticism. Can you imagine Durham without robust, wide-open (Justice William Brennan’s words) criticism of its public officials?

As far back as 1733, when a jury found New York newspaper publisher John Peter Zenger not guilty of defaming the corrupt royal governor William Cosby, truth was recognized as a defense against libel.

It’s hard to believe today, but libel in Zenger’s time was defined as public criticism of government, and the consequences could be unpleasant.

The First Amendment came along a half-century after Zenger’s rattle-the-rafters victory over the crown. It remains the touchstone of American liberty, but one can argue that the press was not truly free until L.B. Sullivan lost in the Supreme Court.

Sullivan died in 1977. I wonder if he ever truly understood the magnitude of what he had wrought.

Bob Wilson is a retired journalist who lives in southwest Durham.

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