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Freedom Of The Press: How Far Can They Go?
The Supreme Court says the First Amendment gives newspapers the right to denounce the government, advocate revolution, attack public figures, and even be wrong. This may not be nice—but those who understand the strengths of a republic wouldn’t have it any other way.
October/november 1982 | Volume 33, Issue 6
Yet throughout the nineteenth century and well into the twentieth, as the circulation and influence of the press expanded, repeated attempts were made to combat its perceived evils. Prosecutions for criminal libel, for example, flourished in the last quarter of the nineteenth century. Even more alarming were some of the extrajudicial methods for regulating the press that gained favor. These included mob violence against abolitionist editors—William Lloyd Garrison, for instance, was marched half-naked through the streets of Boston and Elijah Lovejoy was murdered in Alton, Illinois; censorship of the mails by executive order; and during the Civil War, outright closure of newspapers.
With the enactment of sweeping criminal anarchy statutes and espionage laws in the early twentieth century, it seemed as if Tocqueville’s warning had been completely forgotten. But a new era of expanding liberties began with the Gitlow decision in 1925. In 1931, in a landmark case involving an anti-Semitic scandal sheet in Minneapolis ( Near v. Minnesota ), the Supreme Court held that prior restraints on publication were, in almost all cases, unconstitutional. Ten years later, in a case involving the Los Angeles Times , the Court ruled that the press could not be held in contempt for editorializing about pending litigation. And in 1964—163 years after the Sedition Act expired—the Court finally got around to declaring it, and the entire concept of seditious libel, inimical to the First Amendment.
The front page of the New York Times the morning of March 29, 1960, offered a preview of some of the issues and personalities that would dominate the newspaper’s headlines over the coming decade: there were stories about renewed rioting in South Africa, Senate opposition to a proposed civil rights bill, negotiations for a nuclear test-ban treaty, and the upcoming presidential campaign ( NIXON PLEDGES HARD FIGHT DEVOID OF PERSONAL ATTACKS ). Nothing in the paper, however, would have given a reader a clue as to the major First Amendment drama about to unfold. Not even the editors of the world’s most powerful newspaper had an inkling of what lay ahead.
The cause of the ensuing trouble was nothing the Times had written but a full-page advertisement that appeared on page twenty-five of that morning’s edition. The ad, titled “Heed Their Rising Voices” (the line was taken from a Times editorial), was an appeal for funds for the civil rights movement. It was sponsored by an ad hoc organization called the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. One month earlier, in Montgomery, Alabama, King had been arrested on perjury charges in connection with the filing of his state income tax return. “As the whole world knows by now,” the Times ad began, “thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.” The ad went on to describe events in a number of Southern cities, including Montgomery, where, it charged, “Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. ”
Of the 650,000 copies of the New York Times printed that morning, 394 made their way to Alabama. Montgomery County received 35 of those, and one ended up in the hands of the commissioner of public affairs, L. B. Sullivan. Sullivan, who supervised the county police, fire, and cemetery departments, was not mentioned by name in the ad, but what he read upset him, or so he claimed. Two paragraphs in particular caught his attention. One said: “In Montgomery, Alabama, after students sang ‘My Country, ‘Tis of Thee’ on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.” The other paragraph concerned Martin Luther King; it claimed that during the time he lived in Montgomery his home had been bombed and he had been arrested seven times on trumped-up charges.
As the Times would later acknowledge, the two paragraphs were inaccurate in many details: the students had sung the National Anthem, not “My Country ‘Tis of Thee"; nine of them had indeed been expelled from the all-black Alabama State College, but it was for taking part in a sit-in at a segregated Montgomery lunch counter, not for protesting on the capitol steps; police were deployed in large numbers near the campus but they never actually “ringed” it; students who protested the expulsions did so not by refusing to register but by boycotting classes for one day; the dining hall was never padlocked; and Dr. King had been arrested only four, not seven, times.