Chapter 15: Freedom of the Press in a Free Society

New York Times Co. v. Sullivan (1964)

The First Amendment of the U.S. Constitution protects the rights of individuals to freedom of speech and the press by restricting the powers of the federal government. In a single, pithy phrase, it says: “Congress shall make no law. . . abridging the freedom of speech, or of the press.” The U.S. Supreme Court has applied these First Amendment freedoms against state governments through the due process clause of the Fourteenth Amendment, which says, “No State shall. . . deprive any person of life, liberty, or property without due process of law . . . ” Since the 1920s, the Court has ruled consistently that First Amendment rights to freedom of speech and press are linked to the individual’s general right to liberty guaranteed by the Fourteenth Amendment, which no state government may abridge.

Throughout American history, however, libelous speech had been outside the protection of the First Amendment. Libel is the act of defaming or hurting a person’s reputation by saying negative and damaging things about her or him that are untrue or misleading. Libel laws, which exist in every state, provide that a person can be sued for damages by speaking or printing words that defame someone. A government official in the state of Alabama, for example, could sue a citizen of the state for speaking or printing libelous words about her or him. From the ratification of the First Amendment in 1791 until the 1960s, no one had successfully challenged in a court of law the traditional understanding that the state governments could make laws prohibiting and punishing libelous speech. Because cases involving state libel laws did not raise issues under the U.S. Constitution, they were strictly within the jurisdiction of the state courts.

On a fateful Tuesday morning — March 29, 1960 — the New York Times ran a full-page advertisement that sparked fresh controversy about whether all presumably libelous speech, under all conditions, was outside the protection of the First Amendment. Could a city government official in Montgomery, Alabama, for example, use the libel laws of the state to successfully sue and punish the publisher and managers of a newspaper for printing words he perceived as defamatory? Or could the publisher of a newspaper, such as the New York Times, claim its right under the First Amendment to decide what to print and distribute to the public, despite a state government’s libel laws? These constitutional issues were raised and settled by the U.S. Supreme Court in New York Times Co. v. Sullivan (1964).

The controversial advertisement was placed in the New York Times by a group of black civil rights leaders, the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. Then as now, the Times often published advertisements written by people who desired to promote not a product but a particular point of view about a current political or social issue. In this case, the civil rights leaders wanted to generate financial support and rally public opinion for their ongoing struggle to change laws in southern states that unjustly discriminated against black Americans, especially laws that unfairly denied black people their constitutional right to vote in public elections.

The headline of the advertisement blared, “Heed Their Rising Voices.” It was derived from a New York Times editorial of March 19, 1960, which included these words: “The growing movement of peaceful mass demonstrations by Negroes is something new in the South, something understandable . . . Let Congress heed their rising voices, for they will be heard.”

The opening paragraph of the paid advertisement said:

As the whole world knows by now, 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. 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.

In subsequent paragraphs, this advertisement provided examples of the violent tactics police and other public officials had used to stop black people from protesting peacefully against racially biased policies of state and local governments. The ad praised Dr. Martin Luther King Jr. for his heroic leadership of a peaceful civil rights movement. It also stated that the brutal behavior of local government officials had obstructed his efforts, and specifically noted that the policemen of Montgomery, Alabama, had unfairly punished King and his supporters. The concluding paragraphs of the advertisement asked for help from sympathetic citizens throughout the United States:

We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of the Constitution and its Bill of Rights. We urge you to join hands with our fellow Americans in the South by supporting with your dollars, this Combined Appeal for all three needs— the defense of Martin Luther King—the support of the embattled students—and the struggle for the right to vote.

The names listed in support of this advertisement were leaders and supporters of the black civil rights movement from all parts of the country, including twenty black ministers of various Christian denominations in the South. This passionate appeal for help was certainly designed to attract attention, rally respondents, and compel change for the common good; and so it did, far beyond the expectation or imagination of the writers and publishers of this full-page piece in the nation’s most prominent newspaper, the New York Times.

An unanticipated reaction came from an unlikely source, L. B. Sullivan, the police commissioner of Montgomery, Alabama, who was not known to be a reader of the New York Times. Actually, few Alabamans before or during the 1960s ever saw the Times. In 1960, the daily circulation of this nationally distributed newspaper was approximately 650,000, and, of this total, only 394 copies went to subscribers and newsstands in Alabama. L. B. Sullivan was not among the subscribers. But he read the ad about the black civil rights movement, and he decided to use the libel laws of Alabama to sue the publisher and four of the men whose names were listed in support of the document.

Ray Jenkins, the city editor of the Alabama Journal (a daily newspaper published in Montgomery) was, unlike most residents of his city, a regular reader of the Times, and he saw the prominently displayed ad. Jenkins surmised that many readers of his newspaper might like to know what the ad said about violence throughout the southern states against black civil rights protesters, especially the charges of brutality against policemen in Montgomery. So Jenkins wrote an article about the contents of the advertisement, which appeared in the April 5, 1960, issue of the Alabama Journal.

When Sullivan saw Jenkins’s story, he perceived general hostility to southern law enforcement officials and particular animus against the police force of Montgomery, Alabama, which he supervised. Feeling personally maligned by the charges against the police force he supervised, Sullivan could barely restrain his anger, and he resolved to strike back as hard as he could at the perpetrators of this insult to him, his police force, and his city. The third paragraph of the ad was especially troubling to Sullivan. It said:

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.

On April 8, only three days after seeing the ad, Sullivan wrote a letter to the New York Times. He claimed that the ad impugned his reputation by wrongly charging him with “grave misconduct” and “improper actions and omissions as an official of the City of Montgomery.” He demanded that the Times publish “a full and fair retraction of the entire false and defamatory matter.” Sullivan also sent identical letters to four black Christian ministers in Alabama whose names had appeared in the advertisement among a long list of supporters. The governor of Alabama, John Patterson, sent similar letters to the New York Times Company and to the four black ministers.

These letters were clear-cut signals of intent to sue for damages under Alabama law in the state’s courts. The targeting of the four black ministers was a tactic to keep the suit out of the federal judicial system, which would occur only in cases in which residents of one state sued those of another state. The petitioners understood that their chances for a legal victory were greatest if their case was tried completely within the Alabama legal system. The only other way this case, as constructed by the petitioners, could go to the U.S. Supreme Court was if a constitutional issue was involved. And from the founding of the country until 1960, libel cases arising completely under the jurisdiction of a particular state were considered to be outside the scope of federal constitutional law and strictly the business of the state.

Sullivan claimed that the New York Times failed to respond satisfactorily to his demands. Therefore, he sued the publisher and the four black ministers listed as signers of the advertisement. Sullivan’s name was not mentioned in the advertisement. Nonetheless, Sullivan claimed to have been maligned because he was the city’s commissioner in charge of the police force. Thus, he perceived the negative statements about the police force to be “of and concerning him.”

Further, Sullivan charged that the ad was libelous because it contained false statements. For example, the lawyer for Sullivan said that the students mentioned in the ad’s third paragraph had sung “The Star Spangled Banner” and not “My County ’Tis of Thee,” as the ad claimed. He also noted that the police deployed at Alabama State College to maintain order did not exactly “ring” the campus as claimed in the ad. Furthermore, the college students were suspended not for protesting on the state capitol steps but at a lunch counter at the county courthouse. Finally, by contrast with his list of petty mistakes in the ad, the counsel for Sullivan pointed to one rather significant error: the students had not been locked out of their college’s dining hall “to starve them into submission,” as claimed in the third paragraph of the ad.

The jury for the local trial court decided in favor of Sullivan and awarded him damages of $500,000 to be paid by the defendants. This award was a large amount of money in 1964, the equivalent of more than $3 million in the early twenty-first century. Counsel for the New York Times appealed to the Supreme Court of Alabama, which upheld the decision of the trial court.

The issue seemed to be settled in favor of Sullivan, because there appeared to be no grounds for an appeal to the U.S. Supreme Court. The only possibility was to claim that the Alabama libel laws violated the U.S. Constitution’s First Amendment protections of freedom of speech and the press. But the precedents were entirely against such a claim, because prevailing constitutional law held that libel laws of the states could not be overturned through an appeal to First Amendment guarantees. Nonetheless, the U.S. Supreme Court did accept this case on appeal from the New York Times Company because the justices believed that very significant First Amendment issues had been raised.

Lawyers for L. B. Sullivan made the same case for their client to the highest court in the land that they had made to the state courts of Alabama. They particularly stressed that the advertisement in this case was libelous because it contained untrue statements that impugned Sullivan’s reputation. Finally, they claimed that the U.S. Constitution does not protect speech that is false or misleading about the actions of a person, and that the state laws on libel were outside the scope of federal constitutional law.

The primary lawyer for the Times in the arguments to the U.S. Supreme Court was Columbia University law professor Herbert Wechsler, who was a respected lecturer and author on topics in constitutional law. He had served as the chief technical adviser to the American judges at the Nazi war crimes trial at Nuremberg, Germany, in 1945–46. His written and oral presentations to the Court compellingly claimed that the First Amendment absolutely protects criticism of public officials, such as L. B. Sullivan, no matter what a state’s libel laws may say. He drew upon the political ideas of such American founding fathers as James Madison and Thomas Jefferson to argue that genuine representative government, based on consent of the governed, is impossible without very broad constitutional guarantees for freedom of speech and of the press, which protect the individual’s right to criticize the government. Wechsler noted James Madison’s support for freewheeling criticism of government officials in a democratic republic. In a speech before the House of Representatives in 1794, Madison had declared that in the American system “the censorial power is in the people over the Government and not in the Government over the people.” Wechsler concluded by claiming Alabama’s legal restrictions in this case, on presumably false speech about public officials, were unconstitutional infringements of First and Fourteenth Amendment freedoms to criticize the government.

The Court agreed with most of Wechsler’s arguments and unanimously reversed the decision of the Alabama Supreme Court. Writing for the Court, Justice William Brennan began with an attention-getting statement that announced a new direction in constitutional law: “We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.”

Brennan next described in detail the facts of the case. Based on what had happened, he concluded:

We reverse the judgment. We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.

Brennan wrote extensively about ideas concerning the critical importance of free speech and press in the constitutional democracy of the United States, which had been expressed since the founding era. Brennan’s historical commentary set the stage for this dramatic conclusion:

Thus, we 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 . . . The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for . . . constitutional protection.

Brennan then rejected the claim that errors in the advertisement at issue justified payment of damages to Sullivan. He said that “erroneous statement is inevitable in free debate, and that it must be protected if freedoms of expression are to have the ‘breathing space’that they need . . . to survive.” He also rejected the claim that free expression should be restrained to protect the reputation of public officials. “Just as factual error affords no warrant for repressing speech that would otherwise be free, the same is true of injury to official reputation.”

If citizens and the media are to be effective critics of their representatives in government, as they should be in a democracy, then restrictions against freedom of expression must be reduced. As a result, public officials may not be awarded damages for defamatory statements about their official conduct merely because the statements are false or damaging to one’s reputation. Brennan wrote, “If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate.”

Brennan, however, avoided an absolutist position on immunity from libel suits by providing constitutional protection only for false statements made in good faith, without malice or gross indifference to the consequences. He set forth this standard: “The Constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering 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.”

Brennan emphasized that the burden is always on the plaintiff to demonstrate “actual malice” and “reckless disregard” in the expression of false and defamatory statements.

Brennan’s opinion concluded “that the facts do not support a finding of actual malice” by the New York Times. “The judgment of the Supreme Court of Alabama is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.” Thus Sullivan gained no satisfaction from his claim to damages for libel.

The New York Times case can be fully comprehended only in the context of the civil rights movement of the 1960s. In historical perspective, it appears that the infringement of First Amendment freedoms was not the only factor that influenced the Court’s decision. The justices also took into account the protests of black Americans against racially biased laws and unfair social conventions, which caused great suffering among them and great embarrassment among all Americans who believed in equal justice under the Constitution. The Supreme Court justices realized that Alabama officials were using the state’s libel laws to stifle the voices of those critical of their opposition to civil rights protestors. So the Court’s decision in this case strongly supported the role of a free press in a free society, which contributed significantly to the eventual success of the civil rights movement in the South.

The Court’s decision in the New York Times case has also had significant legal consequences for the press. It has made it very difficult for public officials to bring libel actions against the media. As a result, the ability of the press and the public to discuss freely, and publicly, the actions of government has been greatly expanded. Journalists and broadcasters have been encouraged to play the role of watchdog, with broad, if not unbounded, freedom to investigate questionable or improper actions by public officials, and this freedom has contributed greatly to the maintenance and advancement of liberty and democracy in the United States.

Although generally lauded, New York Times Co. v. Sullivan also created new problems. It forced the Court to face challenging new issues regarding the meaning of “actual malice” and “reckless disregard,”as well as about the distinctions between public figures, with minimal protection from libel, and private persons, who may still sue for libel under the traditional state laws.

In subsequent cases, such as Gertz v. Welch (1974), the Supreme Court modified and clarified the constitutional law set forth in New York Times Co. v. Sullivan. Elmer Gertz, a civil liberties lawyer, sued Robert Welch, publisher of American Opinion, because an article in that magazine included false and libelous statements about him. The article wrongly stated that Gertz was a communist who advocated violent overthrow of the U.S. government and that he had a criminal record. Gertz had angered Welch, leader of the rabidly anticommunist John Birch Society, by representing a family in their civil suit against a Chicago policeman who had shot and killed their son. Welch charged Gertz with conducting a communist-inspired campaign to undermine the U.S. government by discrediting law enforcement officers.

Gertz won his case at trial by proving that Welch had libeled him. This verdict, however, was overturned in a federal court because it violated the standards set in New York Times Co. v. Sullivan, which required Gertz to prove “actual malice” and “reckless disregard” rather than mere falsity in order to win payment of damages from Welch. The case went on appeal to the Supreme Court, which reversed the lower federal court’s decision and used the occasion to clarify and modify its holdings in cases about freedom of expression and libel.

In his opinion for the Court, Justice Lewis F. Powell began with a strong assertion of the First Amendment guarantees of free expression. “Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” However, he also held that a balance must be sought in the law between protection for free speech and press and protection of individual reputations at risk from inadequately limited expression in the media.

Powell distinguished public figures, who should have less protection against libel, from private persons, who should have more. He also defined two types of public figures. One is so prominent as to always be a public figure, such as the governor of a state. The other type is a conditional public figure, someone who holds this status only within a certain context, such as a single issue or event in which the individual has been involved. Justice Powell concluded that Elmer Gertz did not meet the standard for being a public figure and was strictly a private person. Therefore, Gertz did not have to bear the high burdens of proof against Welch set by the Sullivan case.

Finally, Justice Powell set forth a rule for plaintiffs such as Elmer Gertz. Although the plaintiff is a private person, said Justice Powell, he must demonstrate more than the expression of libelous falsehoods about himself, because the content of the reports about him were matters of public concern. Someone in a situation like Gertz’s, said Justice Powell, must also show that the publisher acted negligently. Thus, a new burden of proof entered the field of libel law, which, if more lenient than the standard of “actual malice” and “reckless disregard” set forth in the Sullivan case, was nonetheless in the spirit of that decision. It raised the bar for justifying certain claims of libel and thereby expanded protection for free expression in cases involving private individuals.

The Gertz decision exemplifies the Court’s case-by-case process of responding to problems raised by Sullivan, the need to distinguish public and private figures and their varying claims to protection by state libel laws. This developmental process has yielded the following rules in constitutional law. First, a completely private figure, about whom a publisher spreads lies on a subject of no general public interest, can sue for libel in any way that a state law permits, and the U.S. Constitution is not applicable to the case. Second, a private person libeled about a matter of public concern, such as Elmer Gertz, must meet both the requirements of state libel law and the First Amendment standard of proving negligence on the part of the publisher. Third, a purely public figure, such as L. B. Sullivan of Montgomery, Alabama, who seeks damages for libel, has the heavy burden of proving “actual malice” and “reckless disregard” by the publisher in order to win a favorable decision.

Thus, New York Times Co. v. Sullivan practically brought an end in the United States to the crime of seditious libel (making defamatory comments against public officials and government). It marked the beginning of a freer and riskier political environment, which has made public officials more accountable to the people they serve. But it also has discouraged some talented persons from putting their reputations at risk by entering a political arena open wide to the unpredictable currents of free expression no longer fettered by state libel laws.