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Welcome to Speaking Freely: a First Amendment Podcast with Stephen Rohde. In this new series, First Amendment expert Stephen Rohde, who has litigated and written about freedom of expression for decades, will explore some of the most controversial free speech and free press cases decided by the U.S. Supreme Court—looking at hot-button issues like hate speech, defamation, incitement, social media, obscenity, flag burning, espionage, and academic freedom.
In this third episode, we delve into how libel laws have been weaponized against civil rights movements, how the courts put a stop to it, and what more recent cases tell us about a potential return to the weaponization of these laws.
Cases discussed in this episode:
Transcript:
This is Michele Goodwin, executive producer of Ms. Studios and Ms. Media. Welcome to our new, limited series, Speaking Freely: a First Amendment Podcast with Stephen Rohde. In this illuminating new series, prominent First Amendment expert, Stephen Rohde, who has litigated and written about freedom of expression for decades, will explore some of the most controversial free speech and free press cases decided by the U.S. Supreme Court. Looking at hot-button issues like hate speech, defamation, incitement, social media, obscenity, flag burning, espionage, and academic freedom.
0:00:44
We hope you enjoy these intriguing programs. For a full transcript, links to cases referenced in this episode, and further reading, check out our landing page at MsMagazine.com. And now, here’s your host Stephen Rhode with our episode: Civil Rights and Weaponizing Libel Laws.
00:00:54.2 Stephen Rhode:
On March 29, 1960, in the midst of the Civil Rights Movement, the New York Times published a full-page ad with the headline Heed Their Rising Voices.” The ad had been placed by supporters of Dr. Martin Luther King, Jr. to help raise much-needed funding to sustain the struggle for racial equality. The ad referred to Dr. King’s previous arrest in Virginia, to the sit-ins in Montgomery, Alabama and other cities, and the violent reprisals they generated.
00:01:29.9
The ad evoked images of brutality and oppression, an unprecedented wave of terror visited upon American teenagers by “Southern violators of the Constitution.” It exhorted “decent-minded Americans to contribute material help, so urgently needed by those who are taking the risks, facing jail, and even death in a glorious affirmation of our Constitution and the Bill of Rights.” The ad was emotional and compelling; but unfortunately, it contained several factual errors.
00:02:13.1
For example, the Montgomery Police had come to the campus of Alabama State to prevent demonstrations, but they had never circled or ringed the campus as the ad alleged. The student leaders were expelled for participating in the lunch counter sit-ins, not for singing “My Country, ‘Tis of Thee.” In fact, the students actually sang the Star-Spangled Banner. Dr. King had been arrested only four times, not seven. Although the police did not go to the Alabama State campus…although they did, their appearance wasn’t in connection with the protest at the capital.
00:02:55.5
The most serious error was about authorities padlocking the student dining room. It wasn’t padlocked and officials never attempted to starve the students into submission. Only 394 copies of the Times were distributed in the State of Alabama. Public Affairs Commissioner L.B. Sullivan, who was in charge of the Montgomery Police Department, found out about the ad. He was offended by it and went to a lawyer who specialized in defamation law. The lawyer told Sullivan he had a very good case under existing libel law even though Sullivan was not identified by name in the ad.
00:03:42.0
All the lawyer had to prove that it was of and concerning his client and tended to damage his reputation. The statements were presumed to be false and it would be up to the Times to prove they were true in all their particulars. The First Amendment was irrelevant under existing law. On April 15, 1960, Sullivan sued the Times and four Alabama ministers whose names had been listed in the ad. He sought 500 thousand dollars in damages.
00:04:20.6
Segregationists had discovered a new weapon to stifle press coverage of the South’s violent resistance to integration. In short order, at least five more libel suits were filed against the Times seeking millions of dollars in damages. The Times was operated by the Sulzberger family on a low-profit margin and was barely breaking even. The short trial began on November 1, 1960, before an all-white jury. After two hours of deliberations, the jury rendered a verdict, jointly and severally, against the Times and the four ministers for 500 thousand dollars.
00:05:07.4
In today’s dollars, more than 5 million dollars. The following January, in a replay of the Sullivan trial, Montgomery Mayor Earl James won his own verdict for 500 thousand dollars. By 1964, officials in three Southern states had filed 17 libel actions against various parties, primarily over civil rights coverage, seeking more than 288 million dollars. In today’s dollars, an astounding 2.8 billion dollars. The wave of huge libel verdicts against the press and the civil rights leaders drained time and money from the struggle for racial equality and hampered news coverage of that struggle.
00:06:00.6
The Times and the ministers lost in the Alabama appellate courts. The Alabama Supreme Court held, as was indeed the law at the time, that “[t]he First Amendment to the U.S. Constitution does not protect libelous publications.” The most dangerous aspect of the ruling was its holding that an attack on a government entity would constitute a libel of an individual official of that government. To take the case to the U.S. Supreme Court, the New York Times hired one of the most prominent experts in Constitutional law: Herbert Wechsler of Columbia Law School.
00:06:46.4
Wechsler would alter the course, not only of the Sullivan case and freedom of the press, but the history of American journalism and the Civil Rights Movement. Wechsler and his young colleague Marvin Frankel devised a brilliant way to constitutionalize libel law by pursuing a Sedition Act strategy. Specifically, they shifted the focus from the right of individuals to protect their reputations to the right to criticize the government, clearly, a fundamental interest under the First Amendment.
00:07:24.4
Their petition asking for the U.S. Supreme Court to take the case argued that along with “sedition, insurrection, contempt, advocacy of unlawful acts, breach of the peace, disorderly conduct, obscenity, or barratry, libel must be defined and judged by standards which are not repugnant to the Constitution.” The petition also emphasized the civil rights context. “This is no time when we…“
00:08:05.7
The petition also emphasized the civil rights context. “This is not a time when it would serve the values enshrined in the Constitution to force the press to curtail its attention to the racial tensions of the country or to forego dissemination of its publications in the areas where tension is extreme.” In his legal brief on the merits, Wechsler confronted head on the fact that the Times had indeed published several false statements. He borrowed a phrase from a recent opinion by Justice William Brennan which emphasized that the First Amendment needed breathing space to survive.
00:08:48.3
Wechsler insisted that the First Amendment protected criticism of public officials absolutely, and there was no balance to be struck between the protection of an official’s reputation and freedom of the press. He analogized to the absolute immunity given to public officials from libel suits for which they say …and what they say in the course of their duties.
00:09:21.6
But doubting he would convince a majority to grant the media an absolute privilege, Wechsler presented several accommodations that would protect speech, yet still offer some protections for _____ 00:09:35.2 such as proof that officials demonstrate specific economic laws or proof that the critic was motivated by an intent to harm. Before he flew to Washington to defend the verdict in front of the Supreme Court, Sullivan’s lawyer confidently told his client that for the court to take away his jury verdict, it would “have to reverse 200 years of settled law.”
00:10:07.7
Shortly after noon on January 6, 1964, the justices took their seats in the Supreme Court. Wechsler began his argument by telling the court that the judgment below opposed “hazards to the freedom of the press of a dimension not confronted since the early days of the republic.” Justice Brennan asked if there were any limits that would take criticism of official conduct outside the protection of the First Amendment. Alluding to James Madison, Wechsler responded that he saw “no toying with limits or with exclusions.”
00:10:51.3
When Justice Brennan asked if the First Amendment gave absolute protection, Wechsler reiterated that the First Amendment was precisely designed to do away with seditious libel. Justice Arthur Goldberg pressed Wechsler whether his position covered any type of false or malicious statement concerning official conduct, such as falsely stating that a mayor had accepted a 1-million-dollar bribe to commit an official act.
00:11:22.1
Wechsler responded, that is right, and noted that the mayor was free to make a public speech answering the charge. Wechsler made sure to add that the law could attempt an accommodation of conflicting interests such as a qualified privilege rule or a requirement that public officials prove damages to their reputation in a tangible way. On March 9, 1964, Justice Brennan announced the unanimous opinion in New York Times v. Sullivan.
00:12:00.5
It did, indeed, reverse over 200 years of American law. For the first time in its history, the court held that a libel action brought by a public official against critics of his official conduct must comply with “the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments.” Justice Brennan issued one of the most notable statements in the history of free expression: “[t]hus, we consider this case 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.”
00:13:01.5
The opinion rejected truth as a requirement for First Amendment protection because “erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have a breathing space that they need to survive.” Even a false statement “makes a valuable contribution to public debate, since it brings about a clearer perception and livelier impression of truth, produced by its collision with error.” A rule “compelling the critic of official conduct to guarantee the truth of all his factual statements and to do so on pain of a libel judgment, virtually unlimited in amount, leads to a comparable self-censorship.”
00:13:57.7
Brennan declined to adopt Wechsler’s absolute rule. Instead, the court held that a public official must prove actual malice. That the defendant acted with knowledge that the statement was false or reckless disregard of whether it was false or not. Since Sullivan had failed to do so, the verdict could not stand. Justice Hugo Black wrote a separate concurring opinion, joined by Justice William O. Douglas, endorsing the absolute rule. He pointed out that libel cases were harassing and punishing a free press.
00:14:37.7
With 11 suits pending in Alabama against the Times seeking a total of 5 million 600 thousand dollars, and five suits against CBS seeking 1 million 700 thousand dollars, scholars have described the Sullivan case as revolutionizing the law of libel and that it signaled “the most forceful and extensive articulation of the role of freedom of speech in democracy in the Supreme Court’s history to that time.” It has been cited over 60 times in Supreme Court opinions and countless lower court decisions to justify expanded First Amendment protection in a wide array of settings.
00:15:28.3
Dr. King himself applauded the court for upholding “the freedom of the press and speech so vital to those who engaged in the struggle for full freedom.” But today, many are asking whether New York Times v. Sullivan will continue to play its historic role. In 2019, Justice Clarence Thomas argued for a re-assessment. In 2021, Justice Neil Gorsuch claimed that what started in 1964 “with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparatively handful of print and broadcast outlets, has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
00:16:27.6
Recently, Governor Ron DeSantis complained that Sullivan served as a shield to protect publications that “smear officials and candidates.” He proposed a bill that would leave the press wide open to lawsuits, including a rule that comments made by anonymous sources, a common journalistic technique, would be presumed false in defamation suits. But the shoe was on the other foot.
00:17:02.4
In a 1.6-billion-dollar libel case, Dominion Voting Systems Corp., filed against Fox News for claiming that Dominion’s voting machines changed Donald Trump’s votes to Biden votes, What was Fox’s defense? “The core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan.”
00:17:31.9
After extensive discovery, Dominion presented enough evidence to show that Fox actually acted with actual malice and the judge set the case for trial. Instead of going to trial, on April 18, 2023, Fox settled and agreed to pay Dominion 787 million 500 thousand dollars. Sixty years ago, segregationists impeded the Civil Rights Movement and punished the press for exposing racism by weaponing libel suits. New York Times v. Sullivan put a stop to that.
00:18:11.3
Today, conservative politicians and some Supreme Court justices are seeking to eliminate Sullivan, thereby opening the door to a flood of libel suits, dragging their critics and press into lengthy and costly litigation, and distracting them from ensuring that the debate on public issues should, as Justice Brennan wrote, remain uninhibited, robust, and wide open. Time will tell the future of New York Times v. Sullivan.
00:18:47.8
Thank you for listening to this podcast. And thanks to Allison Whelan, my producer. I appreciate your listening. Please listen to the next episode of Speaking Freely: A First Amendment Podcast.