The March 29, 1960, issue of The New York Times was published in 650,000 copies, of which 349 were sold in the state of Alabama. Thirty-five reached Montgomery, the capital. The issue carried a full-page ad headed, “Heed their rising voices.” It began, “As the whole world knows by now, thousands of Southern Negro students are engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity,” and went on to speak about “Southern violators” who had responded to that activity with “an unprecedented wave of terror.” It named no violators but did refer to “police action.” L.B. Sullivan, one of three elected commissioners in Montgomery, said that this identified him; he was the commissioner supervising the police. He sued the Times for libel, and a local court awarded him $500,000 in damages, a decision that the Alabama Supreme Court confirmed.
It was an odd case all around, beginning with the fact that it arose from an ad, rather than editorial matter. Some of the statements in the ad were inaccurate, but the inaccuracies were scarcely vital. A group of protesting black students who had gathered on the steps of the state capitol had not sung My Country Tis of Thee, but the national anthem; police had not arrested Martin Luther King Jr. seven times on petty harassing charges, but four. It was never clear how those errors, and more like them, reflected adversely on Commissioner Sullivan’s performance in office. Also, the probable damage to his reputation was slight, especially set alongside 500,000 1960 dollars: with 35 copies circulated there that day, the Times plainly was not required reading in Montgomery.
From that poky beginning, The New York Times vs. Sullivan, as the case became known when the newspaper took it to the U.S. Supreme Court, led to a landmark decision. In it lies much of the hope of CBS in the current trial of the $120-million libel suit by retired Gen. William Westmoreland against the television network. In a 1982 documentary titled The Uncounted Enemy: A Vietnam Deception, CBS said the general, as commander of U.S. forces in Vietnam, misrepresented enemy troop strength in early 1968 to make a rosier picture of the state of the war than was warranted. The general, who says there is no other way to clear his honor and that of the army, sued.
But in the Times vs. Sullivan decision, in 1964, Mr. Justice William Brennan of the U.S. Supreme Court expounded a strong rule. He quoted former president James Madison: “If we advert to the nature of republican government, we shall find that the censorial power is in the people over the government and not in the government over the people.” The effect of the Brennan opinion was to endorse that: the people had the right (including the press) to watch, judge and denounce their governors—not the other way round. Said Brennan: “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.”
In other words, freedom of speech and press were supreme in matters concerning the administration of public affairs; public discussion was not to be stifled by fear of punishment for factual error or defamatory content. The judgment continued: “The constitutional guarantees [of free speech and press] require, we think, a federal rule 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—that is, with knowledge that it was false or with reckless disregard to whether it was false or not.”
Mr. Justice Arthur Goldberg, who had been John F. Kennedy’s secretary of labor and was then still new to the court, repeated those key words in a concurring judgment and added that the first amendment to the Constitution (guaranteeing freedom of speech and press) and the 14th (confirming federal supremacy in those areas) “afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses.”
But all that, which virtually eliminated circumstances in which a public official could sue over critical reporting of his actions in office, was in the 1960s. Since then, the climate has changed. The Westmoreland case will measure by how much.
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