I recently attended the annual ABA Forum on Communications Law, which included an informative panel discussion marking the 50th anniversary of the U.S. Supreme Court's landmark decision in N.Y. Times v Sullivan. While we are familiar with the holding in Sullivan 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,'" the panelists reminded those in attendance of the inseparable connection between Sullivan and the civil rights movement, and shared some insights into the "back story" of how the decision came to be.
To begin, Sullivan concerned not a news article, but a full-page advertisement titled "Heed Their Rising Voices," published in the New York Times on March 29, 1960. The ad decried a "wave of terror" purportedly unleashed by the police department of Montgomery, Alabama, against "thousands of Southern Negro students  engaged in widespread non-violent demonstrations" in support of the civil rights movement and the legal defense fund of Dr. Martin Luther King, Jr., who was then under indictment for perjury in Montgomery. The ad stated that police "armed with shotguns and tear-gas ringed" a college campus and "padlocked" the students' dining hall in an attempt to "starve them into submission." It further accused the "Southern violators" with "intimidation and violence" directed toward Dr. King in the form of bombing his home, assaulting him, and arresting him seven times.
Why, Brennan reasoned, should public officials be immunized via a qualified privilege from liability for defamatory statements if made without actual malice, without a similar privilege which protects "the citizen-critic of government."
The ad claimed to be endorsed by 64 prominent citizens, and was placed through a New York ad agency. The ad was accompanied by a letter from the chairman of the committee purchasing the ad, in which he certified that the persons identified had given their permission to be named. The Times manager who approved publication of the ad took comfort from the endorsement of so many reputable persons and knew of nothing that would cause him to believe that anything in it was false. The Times made no effort to independently confirm the facts set forth in the ad.
Sullivan, an elected Montgomery Commissioner whose public duties included supervision of the police department, sued the Times (and four ministers who sponsored the ad) in state court. While not personally identified in the ad, Sullivan claimed that the accusations leveled at the police were libelous and could be imputed to him in his official capacity. It was uncontested that some of the statements contained in the ad were inaccurate (e.g., that the dining hall had not been padlocked; that the 64 persons said to have endorsed the ad had not been contacted before the ad was run; that Dr. King had been arrested four times, not seven). Some of the jurors to whom the case was tried were permitted to wear Confederate uniforms in court, in honor of the centenary of the Confederacy. Sullivan offered no evidence of pecuniary loss. Of the approximately 650,000 copies of the Times edition which featured the ad, only around 394 copies were circulated in Alabama; of those, only about 35 copies were circulated in Montgomery County. Upon being instructed by the judge that the statements in the ad were "libelous per se" and not privileged, the jury awarded $500,000 in damages; the judgment was affirmed by the Alabama Supreme Court.
In holding that the libel law applied by the Alabama courts was "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," Justice Brennan's majority opinion presents a masterful recitation of the historical antecedents of freedom of the press as discussed in the writings of the Founding Fathers, noting that "[t]he right of free public discussion of the stewardship of public officials was thus, in Madison's view, a fundamental principle of the American form of government." He insisted that the case must be considered "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."
Why, Brennan reasoned, should public officials be immunized via a qualified privilege from liability for defamatory statements if made without actual malice, without a similar privilege which protects "the citizen-critic of government"; such officials would have "an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves." Regarding the inaccuracies contained in the ad, Justice Brennan declared that "[a] rule compelling the critic of official conduct to guarantee the truth of all his factual assertions – and to do so on pain of libel judgments virtually unlimited in amount – leads to a comparable 'self-censorship'" no less effective in stifling criticism than official government censorship.
In forming a majority, Justice Brennan employed his legendary skill at "cajoling" others to join in his opinion (sometimes for their own unique reasons) and incorporating their views to avoid dissents (there were none in Sullivan). For example, Justice Brennan is said to have persuaded Justice White to put aside his concern about altering the common law of libel to join the majority more on account of his support of the civil rights movement than concern for a free press. Even Justice Brennan himself (who loathed to give interviews) harbored deeply held concerns that the press often misunderstands legal issues and thus errs in its reporting of them, and is often unduly critical of public officials. That he was able to separate his personal views from his responsibilities as a judge is a testament to Justice Brennan's widely acknowledged greatness.
That the Sullivan decision and the civil rights movement were born of the same momentous time in American history, and were so intertwined, should remind us of the debt we owe to those who courageously criticized injustice, and the lawyers and judges who defended their right to do so.