The Atlantic March 20, 2014
I’m late to the 50th birthday party for New York Times v. Sullivan—deliberately so. It’s no fun to be the sourpuss. Sullivan has been celebrated by top legal and media figures from the moment it was decided until its half-centenary this month. Alexander Meiklejohn, the philosopher, called it at the time “an occasion for dancing in the streets.” In his meticulous 1992 book, Make No Law: The Sullivan Case and the First Amendment, famed Supreme Court reporter Anthony Lewis wrote that the case “gave [the First Amendment’s] bold words their full meaning.” And a few weeks ago, University of Chicago Professor Geoffrey Stone wrote that, whatever its flaws, Sullivan “remains one of the great Supreme Court decisions in American history.” The New York Times itself, the winner of the case, congratulated the nation and the Court on “the clearest and most forceful defense of press freedom in American history.” I used to be a newspaper editor. I was dealing with libel threats at my college paper before I was old enough to vote. So I’m grateful for Sullivan’s broad protection of free speech and press. The Court’s decision defused an existential threat to press freedom—a systematic campaign (detailed well by Lewis in Make No Law) to drive the major networks and papers out of the South by using local libel laws to bleed or bankrupt them. The Court was wise to stop that cold. And yet … and yet. There are some ghosts at the Sullivan feast. Here are their names: Ralph David Abernathy, S.S. Seay Sr., Fred L. Shuttlesworth, and J.E. Lowery. These four black ministers fought against Southern apartheid—and though the fight in the end was won, these four men lost a great deal in the struggle. Their story is the underside of New York Times v. Sullivan, the part that the “post-racial” America of 2014 is not eager to remember. On March 29, 1960, The New York Times published an advertisement funded by Northern supporters of Martin Luther King and the Southern Christian Leadership Council, who were locked in a struggle to desegregate Montgomery, Alabama. Entitled “Heed Their Rising Voices,” it described a number of actions the city government had taken to thwart Civil Rights Movement protests and punish those who engaged in them. A few of the facts, however, were wrong—not surprising, given that it was written by Bayard Rustin, another Civil Rights hero who was not on the ground in Alabama. Rustin also signed the four ministers’ names to the advertisement—without notifying or consulting them. Days later, L.B. Sullivan, police commissioner of Montgomery, filed suit in a state court against both the Times and the ministers for supposedly defaming him. Even though he hadn’t even been named in the advertisement, the all-white jury awarded Sullivan the full half-million dollars he asked for. A few similar verdicts would have bankrupted even the Times; it pulled its reporters out of Alabama. Other cases were filed against other news organizations; Southern officials boasted publicly that they had found a tool to silence the hated Northern press. The four ministers were also adjudged liable for the full amount. The trial judge wouldn’t even allow them to move for a new trial. Alabama authorities seized their cars and land without waiting for their appeal. Even though both cases ended up in the Supreme Court, they were presented very differently. As Lewis notes dryly, “The Times petition did not emphasize the racial issue.” The issue, for the Times, was press freedom. The ministers’ lawyers, however, cited the shocking racial climate in the court—the jury was all white, the courtroom was forcibly segregated by the trial judge, the judge permitted Sullivan’s lawyers to use derogatory racial terms and refer to cannibalism in the Congo, and the judge refused to call the ministers’ black lawyers “Mister,” as he did Sullivan’s (and the Times’s) white ones. “[T]he jury had before it an eloquent assertion of the inequality of the Negro in the segregation of the one room, of all rooms, where men should find equality before the law,” the ministers’ brief said. One of the lawyers, Samuel Pierce (later a member of Ronald Reagan’s Cabinet), told the Court, “it is difficult to see how there can be equal protection under the laws and due process in a court where there’s not even equality of courtesy or recognition of human dignity.” Judgment day for the ministers and the Times came on March 9, 1964. In a single opinion for the Court, Justice William Brennan wrote first, that “an otherwise impersonal attack on governmental operations” can never be defamatory of a government official who is not named in the attack, and, second, that even false statements of fact about public officials are protected by the First Amendment unless they are made with “actual malice.” That term means that the person making the statement must either know it is false or at least think it may be false; “pure heart, empty head” protects against libel of officials. Sullivan was and remains a triumph for the Times and the press. But here is the opinion’s entire discussion of the ministers’ claims: “The individual petitioners contend that the judgment against them offends the Due Process Clause because there was no evidence to show that they had published or authorized the publication of the alleged libel, and that the Due Process and Equal Protection Clauses were violated by racial segregation and racial bias in the courtroom.” Because it had decided the First Amendment issue, Brennan wrote, “we do not decide the questions presented by the other claims of violation of the Fourteenth Amendment.” Am I the only one who wonders why a Court that was bold in defense of the press could not even mention segregation? Or to wince when the opinion relies on the words of a slaveholder, Thomas Jefferson? Am I the only one who remembers that Brennan, the liberal icon, told four brave men their issues were not worthy of address? L.B. Sullivan lives on in the case’s name. The ministers have disappeared. As a Southern-born white, I do not owe my freedom to The New York Times but to men like those four ministers. Abernathy, Seay, and Shuttlesworth are dead, but Joseph Lowery, who is 90, gave the invocation at Barack Obama’s first inauguration. The Times recorded his attendance at the commemoration of King’s “I have a dream speech” last August. But as far as I can tell, it did not give him any credit for its landmark free press victory. My point is not to skewer the Times, which I admire; it is to remind us all that American history has a tendency to grow whiter over time. Know these names: Abernathy, Lowery, Seay, Shuttlesworth. Know the names of the other African Americans who risked (and sometimes lost) everything they had to free Americans of every race. And by all means celebrate New York Times v. Sullivan. In some ways it really is an occasion for dancing in the streets. But perhaps we should not expect Joseph Lowery to dance. Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.