Constitution Day
ATT: Dinah Zeiger
JAMM - University of Idaho
P.O. Box 443178
Moscow, ID 83844-3178

FAX: (208) 885-6450
E-MAIL: dzeiger@uidaho.edu



Contact & Locations

Moscow

College of
Letters, Arts & Social Sciences

Physical Address:
Admin. Bldg. 112
phone: (208) 885-6426
fax: (208) 885-8964
class@uidaho.edu

Mailing Address:
College of Letters, Arts & Social Sciences 
University of Idaho
875 Perimeter Drive MS 3154
Moscow, ID 83844-3154


Coeur d'Alene

University of Idaho C'DA‎
1031 N Academic Way
Coeur d'Alene, ID
83814-5497 
(208) 667-2588


College of
Letters, Arts & Social Sciences
University of Idaho
Admin. Bldg. 112
P.O. Box 443154
Moscow, ID 83844-3154
phone: (208) 885-6426
fax: (208) 885-8964

class@uidaho.edu

Judge Brennan

Scene 4: New York Times v Sullivan. 1963

New York Times v Sullivan. 1963

Cast of Characters

Citizen One   Citizen Two
L.B. Sullivan   NY Times lawyer Eric Embry 
Montgomery Advertiser editor   Alabama Journal editor
Herbert Wechsler, NY Times lawyer   Justice Brennan


Citizen One
The Sedition Act of 1798 so vigorously opposed by Madison and Jefferson was never fully tested in court, until a day in 1964 when the United States Supreme Court heard the case of New York Times vs. Sullivan. On its surface, the case concerned libel—harm to someone’s reputation—but it also implicated the First Amendment guarantees of free speech and free press. The case drove straight to the heart of the civil rights movement and the role of a free press as watchdog and critic of government.

MUSIC
: out
 

The question before the Court was whether state power had been used to limit the people’s right to speak out against injustice: Had the government infringed on freedom of expression. The Supreme Court wrestled with whether, under the guise of protecting reputation, government officials had attempted to intimidate the press into ignoring the peaceful efforts of southern blacks to contest segregation.

Citizen Two
The civil rights movement had gained momentum from the Court’s 1954 decision ordering the nation’s schools to integrate.


Projection:
Civil Rights Sit-in


By 1960, organized actions—from lunch counter sit-ins to voting rights marches—swept the South. Many Northern newspapers and television networks sent reporters to cover the protests. News reports revealed a social and economic underclass, driven to action in hopes of gaining equal access to education and public transportation and the right to eat in cafes and coffee shops. Mostly, though, they wanted the right to register to vote.

Projection:
Image NYT ad, March 29, 1960

Citizen One
(referencing screen) The Sullivan case began on March 29, 1960, when the New York Times ran this full-page editorial ad, placed by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. The headline read: “Heed Their Rising Voices,” a phrase borrowed from an editorial in the Times a few weeks earlier. The ad solicited funds to help pay for the defense of Dr. King, and to support the group’s non-violent actions. In ten paragraphs, the ad described “an unprecedented wave of terror” waged against students seeking their constitutional rights.

Citizen Two
The ad did not single out anyone by name. But it identified 10 cities as sites of "intimidation and violence" intended to "behead this affirmative movement, and . . . demoralize Negro Americans and weaken their will to struggle." The ad targeted Montgomery, Alabama, where it said "truck-loads of police armed with shotguns and tear-gas attempted to starve Alabama State College students into submission."

Projection:
Police Dogs

Based on this last reference, each of the four commissioners of the city of Montgomery filed $500,000 libel suits against the New York Times and four local clergymen who had signed the ad.
L.B. Sullivan, commissioner of public affairs for the city of Montgomery, supervised the police and fire departments. All of the complaints were brought under his name. Sullivan, in a letter to the New York Times, demanded a retraction.

L.B. Sullivan
(holding letter) The publication of the ad as a whole charges me with grave misconduct and improper actions and omissions as an official of the city of Montgomery. I demand that the persons who placed the ad publish, in as prominent and public a manner as the original, a full and fair retraction!

Citizen Two
The Times’ lawyer replied:

New York Times lawyer Eric Embry
(holding letter) We are somewhat puzzled as to how you think the statements in the ad in any way reflect on you. So far, our investigation seems to indicate that the statements are substantially correct, with the sole exception that we find no justification for the statement that the dining hall in the state college was padlocked in an attempt to starve them into submission. In the meanwhile, you might, if you desire, let us know in what respect you claim the statements in the advertisement reflect on you.

Citizen One
The Times received no reply. Instead, Sullivan brought a libel suit demanding $500,000 damages. It named the Times and four of the ministers living in Alabama who had signed the ad. The Montgomery trial ran for three days, and the atmosphere was hostile toward the defendants. One local newspaper, the Montgomery Advertiser, took up the drumbeat immediately after the ad ran.

MUSIC: low drumbeat under

Projection:
Montgomery Advertiser Editorial, April 7, 1960 “Will They Purge Themselves?”

Those “Abolitionist Hellmouths” have much to answer for. The commonwealth of Alabama with its 3 million people has been painfully and savagefully injured by the New York Times!

Citizen One
The Alabama attorney general, MacDonald Gallion, also weighed in, saying that the ad contained “vicious, unfounded and malicious lies. We are sick of warped and slanted attacks on Alabama!”

Projection:
Montgomery Advertiser, April 8, 1960 “Gallion Weighs Legal Action”

Justice Brennan
"The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, was fashioned to assure unfettered interchange of ideas for the bringing
about of political and social changes desired by the people. The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity
essential to the security of the Republic, is a fundamental principle of our constitutional system.
"It is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions, and this opportunity is to be afforded for "vigorous advocacy" no less than "abstract discussion." 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 the constitutional protection. The question is whether it forfeits that protection by the falsity of some ofits factual
statements and by its alleged defamation of respondent. Erroneous statement is inevitable in free debate, and must be protected if the freedoms of expression are to have the "breathing space" that they need ... to survive."

Projection:
Montgomery Advertiser Editorial, April 17, 1960 “Abolitionist Hellmouths”


Citizen One
The Supreme Court's decision that day aided the cause of the civil rights movement and opened the door to reporting on the government's conduct of the escalating war in Vietnam. Its verdict that public officials must meet the actual malice standard foiled further attempts by local and state governments to use libel threats to deter coverage of their violent responses to nonviolent protests. Without the press to bear witness, the nonviolent strategy of the NAACP and the Southern Christian Leadership Conference might have failed. Expressions of injustice - taking a seat at the front of the bus, sitting at a segregated lunch counter - came to be understood as a form of speech, as expressive conduct.
Alabama!”

Projection:
Montgomery Advertiser, April 8, 1960 “Gallion Weighs Legal Action”

MUSIC: Drumbeat segues into production number based upon above: i.e. “mendacity,” “involuntary liars,” “abolitionist Hellmouths,” “the breed runs true.” Plays to finish.

Citizen Two
The trial attracted unusual media attention. Both Montgomery newspapers and the local television station photographed the jurors, 12 local white men whose names appeared in page-one articles. TV cameras followed them to the very door of the jury room.
Sullivan testified that the ad clearly identified him, an element that must be proven in libel. Further, he claimed the information was false and the ad had damaged his reputation, which also must be proven in a libel case. The Times’ lawyer, Eric Embry, maintained that Sullivan had not met those standards.

Eric Embry
The only substantial error in the ad was the statement about padlocking the dining hall, and that could not possibly have referred to Mr. Sullivan. Indeed, nothing in the ad refers to him! And by his own testimony, he has not been damaged. Where is the evidence that has shown Mr. Sullivan suffered any injury? Has his standing in the community suffered, or has it possibly been enhanced?

Citizen One
Despite Embry’s pleas, Judge Walter Jones instructed the jury that the ad was libelous and therefore was presumed false. The jury’s only task was to determine the damages. Jurors deliberated two hours and 20 minutes and returned a damage award of $500,000—the exact amount Sullivan demanded. Newspapers in the South celebrated the victory. The Alabama Journal crowed at the outcome. 

Projection:
The Alabama JournaI Masthead


Alabama Journal Editor
“This trial should make reckless Northern publishers re-survey their habit of permitting anything detrimental to the South and its people to appear in their columns! The South is libeled every day and subjected to more character assassinations than in the days of the New England fanatical abolitionists, Uncle Tom’s Cabin and Simon Legree. Northern publishers until now have regarded themselves as free from prosecution because they were far off and under the impression they could be sued for derelictions only in the courts of their home cities. Now the rules have changed! The Times was summoned more than a thousand miles to Montgomery to answer for its offense. Other newspapers and magazines face the same prospect! The only way to avoid such long-distance summons is to print the truth.”

MUSIC: Drum stinger or triumphal short reprise of “Dixie.”

Citizen One
The Times and other news organizations saw the use of libel as a weapon deliberately chosen to discourage their coverage of the injustices wreaked on the black population in a segregated and hostile South. They worried that the strategy of intimidation by lawsuit would spread. And it did. By the time the Sullivan case made it to the U.S. Supreme Court, Southern officials had brought nearly $3 million in libel actions against various members of the press.

Citizen Two

The Times appealed first to the Alabama Supreme Court, which upheld the trial court. Worried that if the decision stood, publishers—whether print or broadcast—would quit sending reporters to cover the civil rights struggles in the South, the Times decided to appeal the case to the United States Supreme Court.

Projection:
Herbert Wechsler

Herbert Wechsler, the lawyer representing the Times, built his case on the Sedition Act of 1798. He claimed that public and political resistance to the act demonstrated the right to criticize government, which Alabama now jeopardized by using libel law to undercut such criticism.
Wechsler argued that the ad placed in the New York Times was as much a political document as those that had been prosecuted under the Sedition Act. The ad recited a list of grievances and protested against abuses dealing squarely with the major issue of our time, and Alabama sought to silence those complaints. Said Wechsler:

Herbert Wechsler
May it please the court! What is at stake here is criticism of the government, and its repression must be judged outside the mere label of libel. Libel is not insulated from First Amendment protection. This Court has in the past defended that prized American privilege to speak one’s mind, although not always with perfect good taste. As Judge Learned Hand observed, the First Amendment presupposes that right conclusions are more likely gathered out of a multitude of tongues than through any kind of authoritative selection. To many this is and always will be folly; but we have staked our all on it.

MUSIC: first short statement of “America the Beautiful” fugue using these lyrics “we have staked our all on it” establish and carry under.

Political debate is not limited by any test of truth, to be administered by juries, courts or executive officials, nor to speak of a test that puts the burden of establishing the truth upon the writer! Sharp differences always arise in political debate. To persuade others to his point of view, the pleader resorts to exaggeration, to vilification and even to false statement. But the people of this nation have ordained, in the light of history, that in spite of the probability of excesses and abuses these liberties are essential to enlightened opinion and right conduct on the part of the citizens of a democracy.
If truth is not a test, then political speech cannot be penalized because it damages official reputations. If such speech could be punished, then nothing could be safely uttered that was anything but praise! That short-lived Sedition Act of 1798 crystallized a national awareness of the central meaning of the First Amendment, that Americans could not be punished for criticizing public officials! This Court never judged that Act, but the verdict of history surely sustains the view that it was inconsistent with the First Amendment.
This is not the time—there never is a time—when it would serve the values enshrined in the Constitution to force the press to curtail its attention to the tensest issues that confront the country or to forego dissemination of its publications in the areas where tension is extreme.

MUSIC: out

Projection:
March 9, 1964 (date superimposed over NYT ad from previous slide)

Citizen One
The Supreme Court heard arguments over two days in January 1964 and handed down its opinion on March 9, 1964, nearly four years after the ad appeared.
Justice William Brennan wrote the opinion of the Court, which clearly understood that what it had done was revolutionary. The decision reconsidered an entire area of law and the extent to which constitutional protections of speech and press limit libel actions by public officials. It was a momentous decision that extended First Amendment protection to libelous statements when public officials claimed damage to their reputation. This was a radical idea, for it made the official claiming libel responsible for proving that the statements were false. As Justice Brennan said:

Projection:
Justice Brennan


Justice Brennan
“It is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions, and this opportunity is to be afforded for "vigorous advocacy" no less than "abstract discussion." 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 the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of Sullivan. Erroneous statement is inevitable in free debate, and must be protected if the freedoms of expression are to have the "breathing space" that they need . . . to survive."

MUSIC: reprise of civil rights theme under

Citizen One
The Supreme Court’s decision that day aided the cause of the civil rights movement. Its verdict that public officials must meet the actual malice standard foiled further attempts by local and state governments to use libel threats to deter coverage of their violent responses to nonviolent protests. Without the press to bear witness, the nonviolent strategy of the NAACP and the Southern Christian Leadership Conference might have failed. Expressions of injustice—taking a seat at the front of the bus, sitting at a segregated lunch counter—came to be understood as a form of speech, as expressive conduct.

One of the lessons learned in the conflicts of the 1960s and 1970s is that freedom of expression demands a vigilant press and an informed public. Government often seeks to silence the press, especially in times of war. It may briefly succeed, but in the end the Constitution prevails. That has been true since the nation’s founding, and happened again in the 1970s when the New York Times and the Washington Post challenged the government to stop the presses.

MUSIC: segues into Vietnam era protest song (“Blowin’ in the Wind”?)