July 19, 2022 Feature
New York Times v. Sullivan—It Was Never About Libel
The case is really a civil rights case employing a brilliant litigation strategy created to destroy the civil rights movement and potentially bankrupt the country’s most influential newspaper.
Hon. Joseph A. Greenaway Jr.
Things aren’t always what they seem. What do you think of when you hear the phrase? Murder mystery? Scam? What if I told you that the topic was a Supreme Court case? Indeed, one of the greats, the Court’s most important case on the First Amendment—the cornerstone of our democracy. What if I told you that the case was only ostensibly about libel and the test to determine whether libel had occurred? Instead, it’s really a civil rights case employing a brilliant litigation strategy created to destroy the civil rights movement and potentially bankrupt the country’s most influential newspaper.
New York Times v. Sullivan makes every constitutional scholar’s list of great cases. The critical legal issue addressed was how does one resolve the tension between state libel law and the First Amendment? The resulting actual malice standard was both lauded and vilified. Requiring a plaintiff to show that a defendant accused of libel engaged in actual malice—speaking a known falsehood or with reckless disregard for the truth—seemed a Herculean task and a boon for First Amendment rights.
How is the civil rights movement implicated in this case? In March 1960, a full-page advertisement ran in the New York Times. It sought donations to the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. At that time, the civil rights movement was gaining press attention and momentum. More discerning eyes and TV cameras roamed the city streets and back roads of the South than ever. Many a Southern politician made it his business to slow down or derail the movement—by any means necessary. Alabama’s Governor Patterson devised multiple schemes to derail the movement. His plan for the people’s champion of civil rights, Dr. King, was a criminal prosecution alleging underpayment of state income tax. A guilty verdict would bring dire consequences—jail time, fines, attorney fees, and the tarnishing of reputation. Cut off the head of the monster (King), and the consequent chilling effect of a leaderless movement would follow.
The naked purpose of the prosecution is evident for several reasons. King had already paid the purported $1,700 tax deficiency. The local prosecutor advised against bringing the prosecution. The underpayment of state income tax, statutorily a misdemeanor, was not sufficiently punitive to achieve the governor’s objective, hence the need for a felony perjury charge for the same conduct. The perjury subsection of the code had never been used in this manner in state history.
The prosecution led to the ad at issue in New York Times v. Sullivan. The ad sought contributions to Dr. King’s defense fund, which hoped to stave off the scurrilous felony perjury charge that even the Alabama revenue agent involved admitted had no substance.
The ad seemed to create both problem and possibility for the governor, L. B. Sullivan, and the other plaintiffs seeking to thwart the movement. If Dr. King raised sufficient funds to mount a successful defense, the speciousness of the prosecution would be evident. On the other hand, the ad presented the tantalizing possibility that in one fell swoop the outside agitators (the news media) and Black pastoral leadership could be gone as the eyes and conscience of a nation. What prospect fostered that hope? Punitive damages.
The ad described certain events that had occurred at Alabama State University relating to civil rights, but it included several factual inaccuracies. No intentional falsehoods and no material errors. Sullivan, a city commissioner in Montgomery, feigned umbrage, argued that he had been defamed, and sued. Sullivan was not named in the ad nor was his title alluded to. The trial judge, an avowed segregationist, even in his courtroom, gave no quarter to the out-of-town defendant—the New York Times. The preachers who had placed the ad, brought in as defendants to ensure that the case would not be removed to federal court, were merely a sideshow. The libel law of Alabama was fascinating. No damages need be proved. Indeed, no harm need be proved. The law required only factual inaccuracy, whether intentional or inadvertent—whether material or not. In effect, strict liability was the order of the day.
A verdict came back for Sullivan with no finding of actual damages but a finding of punitive damages to the tune of $500,000. The derailment strategy was in full swing. The governor, two other commissioners, and the mayor of Montgomery also sued. Others followed in the ploy. In all, 11 suits were brought. The New York Times faced $5.6 million in punitive damages. Neither of the appellate courts in Alabama provided any solace to the bewildered defendants. The only hope of reprieve was the Supreme Court.
During argument, Herbert Wechsler, the advocate for the Times, made no overt reference to civil rights. He did emphasize the potential impact “not only upon the press but also upon those whose welfare may depend on the ability and the willingness of publications to give voice to the grievances against the agencies of government power.”
In the Court’s opinion, Justice Brennan did not speak of civil rights. However, the Court’s decision to review itself the evidence on actual malice and not remand to allow the Alabama courts to apply the new standard was surely an acknowledgement that the overriding implications of the case warranted preventing the Alabama courts from reaching what was likely to be the same conclusion they had earlier.
On the other hand, Justice Black, a once-favorite son of Alabama, was keenly aware of the implications of the case. An absolutist on matters of the First Amendment, he wanted no part of the absence-of-malice test. In matters of public discourse relating to public officials, freedom of speech must suffer no impediment. The civil rights implications were not lost on him or the other justices. In Black’s concurrence, he alluded to the stark economic reality—the New York Times faced damages of $5.6 million in 11 suits, and CBS was named in five suits demanding $1.7 million. If the judgments were undisturbed, financial ruin for the Times was not out of the question.
What happened to the criminal tax prosecution that started it all? To the utter bewilderment of all—particularly Dr. King—an all-white jury in Alabama acquitted him.
History cannot be rewritten but is oftentimes reexamined. A few matters are beyond peradventure. A different result in New York Times v. Sullivan would have sounded the death knell of the civil rights movement. Media coverage would have been curtailed, if not totally cut off, by an adverse ruling. Not to mention that the New York Times may have faced financial ruin not merely for the suits already brought but for those surely about to be brought. Although New York Times v. Sullivan is a great case for its groundbreaking holding on the First Amendment, it also stands as a seminal civil rights case.