Freedom Of The Press: How Far Can They Go?


Nevertheless, Judge Jones ruled that the statements in the ad were, under Alabama law, “libelous per se”—that is, that falsity and malice were presumed and that no proof of actual damages was required. All the jury had to decide, he instructed them, was whether the Times had, in fact, published the ad and whether the statements were made “of and concerning” the plaintiff. It took the all-white jury a little over two hours to find in Sullivan’s favor and award him the full five hundred thousand dollars in damages.

The Times appealed to the Alabama Supreme Court and brought in a Columbia law professor, Herbert Wechsler, to work on the brief. Wechsler, a former assistant attorney general, didn’t expect to win the appeal on the state level, but he had hopes of overturning the decision in the Supreme Court of the United States. “It seemed impossible to me back then,” Wechsler recalled in a recent interview, “to reconcile the conventional rules of libel with what had been happening over the past thirty years in the area of First Amendment law. To say simply that libel was outside the First Amendment, as many courts did, was to abandon the effort to see the area of freedom of expression as an integrated legal cosmos. ”


The Alabama Supreme Court was obviously content to operate on a more mundane plane: in a decision handed down in August 1962 it upheld the judgment against the Times and dismissed Wechsler’s constitutional argument in a single, terse sentence. “The First Amendment of the U.S. Constitution,” the court said, “does not protect libelous publications.”

That autumn, Wechsler attended what he described as a “council of war” at the Times. The newspaper’s top executives wanted the law professor’s opinion as to whether they should continue to pursue the Alabama libel cases in litigation or attempt to settle out of court. According to Wechsler the Times brass was by no means united on the best course of action.

“I don’t think they had really considered the case in its proper legal perspective,” he recalled. “So I gave them a kind of law school lecture on what had happened regarding the judicial interpretation of the First Amendment over the preceding thirty years.” For two hours Wechsler outlined what he called the “steady expansion of guarantees of freedom of expression since the 1920s.” He took the Times executives through the freedom-of-expression cases of the 1930s, the contempt-of-court cases of the 1940s, and the obscenity cases of the 1950s. In each area, the Supreme Court had taken previously unprotected areas of speech and subjected them to judicial scrutiny and constitutional standards. The time was now ripe, he argued, to bring libel under the umbrella of the First Amendment.

The Times decided to press ahead. A petition for certiorari was filed with the Supreme Court in November 1962. “The decision of the Supreme Court of Alabama,” Wechsler wrote, “gives a scope and application to the law of libel so restrictive of the right to protest and to criticize official conduct that it abridges the freedom of the press. … It transforms the action for defamation from a method of protecting private reputation to a device. for insulating government against attack. If the judgement stands, its impact will be grave. ” The Supreme Court agreed to review the case. Wechsler was confident he would prevail.

Rod Nachman, the Montgomery lawyer who represented Sullivan, was equally certain of victory. “The only way the Supreme Court could decide against me,” he predicted at the time oral arguments were heard in early 1964, would be “to change one hundred years or more of libel law.”

Nachman was right, of course—but he lost his case. In its decision handed down March 9,1964, the Court unanimously overturned the judgment against the Times, swept away Alabama’s libel law, and established new safeguards for criticism of public officials. “Libel can claim no talismanic immunity from constitutional limitations,” Justice William Brennan wrote, changing one hundred years or more of libel law with a single sentence. “It must be measured by standards that satisfy the First Amendment.”