Thursday, March 6, 2014

The Golden Anniversary of Times v. Sullivan

When I was studying journalism in college, my professors all spoke of the landmark Supreme Court decision in the New York Times v. Sullivan case, and they did in reverent terms. Rightfully so.

Most of us students knew nothing about it — it had all happened before our time — but, within the context of my own experiences since college, I appreciate it more with each passing year. It reaffirms my faith in the First Amendment.

They told us that perhaps no other Supreme Court decision — certainly no modern–era decision — has been more important to the constitutional guarantees of freedom of speech and the press than the one in the Times v. Sullivan case, and they were right.

(Richard Labunski, for one, asserts without hesitation in the Providence (R.I.) Journal that it is the "most important First Amendment case in the nation's history." I'm inclined to agree.)

I teach journalism in the community college system here, and Sunday's 50th anniversary of the Times v. Sullivan decision makes me wish I could teach a class in communications law. I'm not a lawyer, though, which I suppose would prevent me from teaching such a class, but I think I understand that case well enough that I could discuss it with my students. I'm sure it would be a lively conversation.

Maybe it is enough to know that it is possible for me to tell my students so many other things because of the freedoms that decision affirmed and strengthened.

It probably would be helpful to give a little background information.

Nearly four years earlier, in 1960, the New York Times ran a full–page advertisement that had the appearance of an article but was actually an attempt to raise money for Martin Luther King Jr.'s legal defense against perjury charges in Alabama. In modern lingo, I suppose you would call it an advertorial.

At issue wasn't deception but inaccuracy and defamation. The article in the advertisement described actions that had been taken against civil rights activists in Alabama. Some of the descriptions were accurate, some were not — and some involved the police in Montgomery, Ala.

The article in the advertisement incorrectly reported that Alabama's state police had arrested King seven times; in fact, he had been arrested four times. Montgomery's public safety commissioner, L.B. Sullivan, considered the advertisement defamatory (to him because he supervised the police even though he was not mentioned by name) and demanded a retraction (which was a condition, under state law, for a public official to pursue punitive damages; he could do so if no retraction was forthcoming).

The Times refused, and Sullivan filed suit against the Times and four black ministers who were mentioned in the advertisement.

At this point, there were hundreds of millions of dollars' worth of libel actions pending against news outlets covering the civil rights movement in the South, which had kind of a paralyzing effect on many members of the press. The fear of legal action prevented many news organizations from being more aggressive in their coverage of civil rights in the South.

Half a million dollars was awarded to Sullivan by a Montgomery jury, and the Times appealed the decision. The appeal made its way to the Supreme Court, which overturned the decision by a 9–0 vote and, in the process, established the standard of actual malice.

The Alabama law was ruled to be unconstitutional because it had no provisions protecting freedom of speech and freedom of the press, which are required by the First and 14th Amendments. The Court also held that, even if such provisions had been made, the evidence did not support the judgment against the Times.

The Court's ruling imposed a new burden on public officials who are plaintiffs in a libel suit — actual malice. There must be proof that the defendant knowingly published false information or acted with "reckless disregard for the truth."

As Justice Hugo Black wrote, it is hard to prove or disprove malice. Well, it might be easier to prove today, what with the digital paper trail that is left through emails, text messages and the like. I don't know. Undoubtedly, that part of the law will be shaped and refined in the years ahead.

That's how it has worked in the last 50 years. Subsequent decisions and Supreme Court appeals have addressed elements of libel law and actual malice. For example, while the original Supreme Court ruling applied only to public officials, it has been extended to include public figures as well.

And it has had implications that went beyond the working press to include commentary, criticism, even satire as well as the definitions of concepts such as privacy, indecency and obscenity.

For advocates of the First Amendment (which should mean all Americans), the real hero in the decision was Justice William Brennan, who wrote about the critical role a free press plays in keeping the public informed and encouraging open debate. Even "caustic debate" is vital in a democracy, Brennan said.

Inevitably, Brennan observed, inaccurate statements will be made, and incomplete reports will be published in a dynamic democracy. Public debate must be "uninhibited, robust and wide open," and it "may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials." Consequently, "breathing space" must be permitted.

The Supreme Court didn't have to hear the case. It always has the option of refusing to hear a case. But the Justices saw the First and 14th Amendment implications in the case, and the ruling that was issued half a century ago safeguards the "unfettered interchange of ideas" that continues to be defined.

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