Freedom Of The Press: How Far Can They Go?


The standard proposed by Brennan and supported by five other members of the Court was that of “actual malice. ” It was not enough, he argued, that a defamatory statement contain factual errors for a public official to recover damages: “Erroneous statement is inevitable in a free debate … and must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive.’ ” Nor was it a sufficient protection to allow a defense of truth: “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to ‘selfcensorship.’ ” What Brennan proposed instead was a higher threshold, a new federal rule that would prohibit a public official from collecting damages for a defamatory falsehood unless he could prove that the statement was made with “actual malice—that is, with the knowledge that it was false or with the reckless disregard of whether it was false or not.” (This legal definition of malice should not be confused with its dictionary meaning; it has more to do with willful negligence than spite.)

Three members of the Court thought Brennan did not go far enough. In separate, concurring opinions, Justices Hugo Black, William O. Douglas, and Arthur Goldberg argued that the press should have an absolute, unconditional right to criticize official conduct, regardless of the excesses or abuses that might result from such a privilege. The standard of “actual malice,” Black wrote, in what would prove to be a prophetic remark, “is an elusive, abstract concept, hard to prove and hard to disprove.”


If the three absolutists on the Court disagreed with the means Brennan proposed for protecting public debate, they had no quarrel with his ends. Not only did his majority opinion declare Alabama’s libel law unconstitutional, thus overturning similar statutes on the books in a majority of the states, but it made a point of reaching back to the eighteenth century and ruling, once and for all, that the Sedition Act of 1798 was “inconsistent with the First Amendment.” By invoking the ghosts of Jefferson and Madison, Brennan was engaging in more than a piece of historical showmanship. His discussion of seditious libel was intended to underscore what was, for the Supreme Court, the enunciation of a new doctrine: that the right to criticize government officials, whether they be Presidents or police commissioners, lies “at the very center of the constitutionally protected area of free expression.” Forty years earlier, in the Gitlow decision, the security of the state took precedence over the rights of its critics. Just a dozen years before, in a group libel case involving the distribution of an overtly racist leaflet in Illinois, the Court held that the state had the right to regulate socially unacceptable forms of speech. Now, with Brennan’s decision in Times v. Sullivan, the rights of the individual had, at last, become paramount.


The Court’s ruling was greeted with cheers from many quarters. A University of Chicago law professor, Henry Kalven, said that it “may prove to be the best and most important [the Court] ever produced in the realm of freedom of speech.” Whatever its value to future generations, on a practical level the decision put an end to the Alabama libel wars. Although the Court remanded Sullivan’s case for further review, Brennan made it quite clear in his opinion that the evidence presented at trial did not warrant a finding of actual malice on the part of the Times. Nor, he said, did it warrant the jury’s conclusion that the statements in the advertisement were made “of and concerning” the Montgomery police commissioner. Even Herbert Wechsler was surprised that the Court went to such great lengths to foreclose the possibility of another trial. “They didn’t have to reach that second step,” he said. “It showed a disposition to see this situation realistically for what it was and put a stop to it. ”

At the time the decision was handed down, newspapers, magazines, and television networks faced tens of millions of dollars in libel actions in Southern states. In addition to the eleven suits still pending against the Times, five had been filed against CBS seeking $1.7 million for statements made in a documentary about Birmingham; a $2 million libel suit had been brought in Texas against the Associated Press by Col. Edwin A. Walker in connection with an account of his participation in an anti-integration riot on the University of Mississippi campus in 1962; and numerous other cases were working their way through the courts in virtually every Southern state. Had the Supreme Court decision in the Times case been any less sweeping, it is questionable whether this strategy of official intimidation of the press would have been defeated. As it was, the Court’s ruling made it possible for reporters to cover the civil rights movement with greater freedom. And it immunized the press—deputized it, if you will—to play a more aggressive role in exposing government misconduct during the Vietnam and Watergate eras.