Make No Law: The Sullivan Case and the First Amendment
The United States stands alone, even among democracies, in the extraordinary degree to which its constitution protects freedom of speech and of the press, and the Supreme Court’s great 1964 decision in New York Times v. Sullivan is a central element in that constitutional scheme of protection.1 The Constitution’s First Amendment provides that government may “make no law…abridging the freedom of speech, or of the press….” In its Sullivan decision, the Court said that it follows that a public official cannot win a libel verdict against the press unless he proves not only that some statement it made about him was false and damaging, but that it made that statement with “actual malice”—that its journalists were not just careless or negligent in researching their story, but published it either knowing that it was false or in “reckless disregard” of whether it was false or not. The decision imposed that strong burden of proof only on public officials; it left private individuals free to recover damages according to state law, which traditionally allows plaintiffs to win who prove only that statements about them are false and damaging.
The Court’s decision freed the press to investigate and report news, without the “chilling” fear that a jury might seize on some factual mistake or some journalistic lapse to award a libel verdict that would bankrupt the publisher. The Sullivan rule has made the American press much less cautious in criticizing public officials than journalists tend to be in Britain, for example, where public figures commonly sue newspapers and often win large verdicts against them.2 It is doubtful whether the Watergate investigation, or similar exposés, would have been possible if the Court had not adopted something like the Sullivan rule. But as Anthony Lewis makes plain in Make No Law, his fascinating book about the case, the decision had even wider importance, because Justice Brennan, in his opinion for the Court, redefined the fundamental premises of the First Amendment in terms that affected not only libel but First Amendment law much more generally. Though I shall argue, later, that this redefinition was not as successful, in retrospect, as it might have been, Brennan’s opinion is the modern foundation of the American law of free speech.
On March 29, 1960, The New York Times published a full-page advertisement titled Heed Their Rising Voices, which described the treatment of protesting black schoolchildren by the Alabama police. The advertisement contained some mistakes of fact. It said that students in Montgomery had been expelled from school after singing “My Country ‘Tis of Thee” on the state capitol steps, though they were actually expelled for a sit-in in the courthouse grill, and that the students had been locked out of their lunchroom to “starve them into submission,” which was apparently not true. L.B. Sullivan, a Montgomery city commissioner in charge of the police, claimed that the advertisement would be…
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