October/november 1982 | Volume 33, Issue 6
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.
During the summer of 1919 a group of dissident members of the Socialist party, including the radical journalist John Reed, published a manifesto in the left-wing newspaper Revolutionary Age attacking the party’s more moderate elements and calling on workers in the United States to rise up and “overthrow the political organization upon which capitalistic exploitation depends.” The only uprising their “Left Wing Manifesto” engendered was a walkout by Reed and his comrades at the Socialist party’s national convention that August (the one depicted in the recent film Reds ). But to government officials caught up in the frenzy of a postwar Red Scare, publication of the manifesto was considered highly incendiary. Several members of the newspaper’s managing board, including Reed, were indicted under New York’s criminal anarchy statute, which made it a felony to advocate, “by word of mouth or writing,” the violent overthrow of the government.
Reed, who returned to Russia that fall and died there the following year, escaped prosecution. The others were tried separately and convicted. Among them was Benjamin Gitlow, the paper’s business manager, one of ten Socialists elected to the New York state assembly in 1917. Gitlow spent thirty-four months in jail while he appealed his verdict all the way to the Supreme Court. The Court had recently upheld the constitutionality of the wartime Espionage Acts, which made it a crime to say or publish anything “intended to cause . contempt, scorn, contumely or disrepute as regards the form of government of the United States, the Constitution, the flag, or the uniform of the Army or Navy,” so it was not surprising that the justices affirmed Gitlow’s conviction. What was surprising was that for the first time in the nation’s history the highest court in the land decided that freedom of speech and of the press were, in the words of Justice Edward Sanford, “among the fundamental rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.”
The enunciation of such a far-reaching proposition—until then First Amendment issues had been left entirely to the individual states to decide—offered Gitlow little consolation. Having acknowledged its jurisdiction, the Court proceeded to rule that New York’s criminal anarchy statute did not deprive the authors of the “Left Wing Manifesto” of their liberty of expression, because the publication was an incitement to violence and, as such, was not protected by the First Amendment. “A single revolutionary spark,” Sanford wrote in his opinion for the majority, “may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting arbitrarily or unreasonably when … it seeks to extinguish the spark without waiting until it has enkindled the flame or spread into the conflagration. ”
Only two members of the Court—Oliver Wendell Holmes and Louis Brandeis—disagreed. “Every idea is an incitement,” Holmes wrote. “The only difference between the expression of an opinion and an incitement…is the speaker’s enthusiasm for the result.”
The New York Times , which would later figure in two of the most important freedom-of-the-press cases in modern times, was not, back in 1925, concerned with such fine distinctions. “This is no denial of free speech,” the paper smugly wrote in an editorial hailing the Gitlow decision. “The free speakers must be ready to face their responsibility to the law for what they say.”
The Gitlow case offers an excellent vantage point from which to survey the current state of freedom of the press in America. It helps us measure how far we have come in the past sixty years and serves as a reminder of how meager the Supreme Court’s record was in this area during the Republic’s first century and a half. At the time Justice Sanford handed down his decision, whole categories of speech were considered outside the First Amendment’s ambit. These included not only advocacy of revolution but obscenity (broadly enough construed to prohibit the importation of works by such authors as Balzac, Flaubert, Joyce, and Lawrence), defamatory statements about judges and other public officials, and in wartime just about any criticism of government policies. Like Humpty Dumpty, the Court simply defined the word speech to mean what it pleased, then concluded that it wasn’t denying anyone’s freedom to exercise such a right.
This two-tiered approach to the First Amendment—the theory that some speech is more protected than other speech—had its origins in the earliest days of the Republic. As every self-respecting member of the Fourth Estate knows, the Founding Fathers replaced the oppressive British common law of seditious libel, which made it a crime to denigrate the government or its agents (regardless of the truth or falsity of one’s statements), with a Bill of Rights that enshrined the principles of freedom of speech and press. But what did the Founding Fathers actually have in mind?
The First Amendment to the Constitution says authoritatively, “Congress shall make no law…abridging the freedom of speech, or of the press.” Did that mean state legislatures were free to make such laws? A motion to guard against just such a likelihood was introduced in the First Congress by James Madison but was voted down by the Senate.
Did “freedom of speech” mean all speech? Certainly not during the Revolution, when every state enacted legislation punishing open denunciation of the patriot cause.
And what about “freedom of the press"? Did that refer only to prior restraints on publication, or did it extend to postpublication sanctions as well? Consider this formulation made in 1787 by James Wilson, one of the most influential framers of the Constitution: “What is meant by the liberty of the press is that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character and property of the individual.” Or these more intemperate remarks by Francis Hopkinson, a signer of the Declaration of Independence, who concluded a defense of liberty of the press with these words: “But when this privilege is manifestly abused, and the press becomes an engine for sowing the most dangerous dissensions, for spreading false alarms, and undermining the very foundations of government, ought not that government upon the plain principles of self-preservation to silence by its own authority such a daring violator of its peace, and tear from its bosom the serpent that would sting it to death?”
It is closer to the truth,” the historian Leonard Levy wrote in his controversial study Legacy of Suppression , “to say that the Revolution almost got rid of freedom of speech and press instead of the common law on the subject.” Indeed, it took only seven years from the time the Bill of Rights was adopted for Congress to do just what the First Amendment proscribed it from doing—make a law abridging freedom of the press. The Alien and Sedition Act of 1798, passed at a time of increasing opposition to the Adams administration, made it a crime to publish any “false, scandalous and malicious writing” against the government. Prosecutions were brought against the editors of the four leading anti-Federalist newspapers as well as a number of prominent politicians. Although truth was allowed as a defense, the difficulty of establishing the truth of an opinion in a court of law meant that convictions were virtually guaranteed.
The constitutionality of the Sedition Act was never tested by the Supreme Court. The Jeffersonians, who spearheaded the attack against the oppressive measure, were swept into power in 1800 and erased it from the books. But the spirit of antilibertarianism was not easily exorcised. A few years later Jefferson himself initiated a series of prosecutions against the Federalist press, using state libel laws as a weapon of intimidation. In one case, the first libel action ever to reach the Supreme Court, two editors of the Hartford Courant were found guilty of defaming the President by publishing an article accusing him of having bribed Napoleon Bonaparte in connection with the Louisiana Purchase. The Supreme Court upheld the convictions, claiming it had no jurisdiction in state libel matters.
The freedom to criticize government officials and policies lies at the very heart of a democracy, and the degree to which a society tolerates the suppression of such criticism is a certain measure of its pulse. After such feeble beginnings it is hardly surprising to find that the subsequent development of freedom of the press in America has been, at best, arrhythmic.
The repudiation of the Sedition Act and the general acceptance of truth as a defense against libel—New York wrote this into the law in 1805—represented significant expansions of liberty over the English system of common law, but they scarcely shielded the press from attack. For one thing, newspapers were still held accountable for disseminating defamatory remarks and falsehoods—that is, statements that could not be proven true. That such abuses, inadvertent or otherwise, were as much a consequence of publishing a newspaper as smudged fingers was recognized by no less astute an observer than Tocqueville. “In order to enjoy the inestimable benefits that the liberty of the press ensures,” he wrote in Democracy in America , “it is necessary to submit to the inevitable evils it creates. To expect to acquire the former and to escape the latter is to cherish one of those illusions which commonly mislead nations in their times of sickness.”
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.
Commissioner Sullivan was not the only one to take offense at the somewhat distorted account of events in the city that had once been the capital of the Confederacy. In an editorial published a few days later in the Montgomery Advertiser , Grover Hall, the newspaper’s editor, called the ad “lies, lies, lies—and possibly willful ones.” He demanded the Times dissociate itself from such “crude slanders,” warning that “the Republic paid a dear price once for the hysteria and mendacity of abolitionist agitators.” Bettye Frink, Alabama’s secretary of state, also joined the fray; she said the signers of the ad “should have warrants served on them.”
Sullivan asked for a public retraction. It was denied: “We are somewhat puzzled as to how you think the statements in any way reflect on you,” wrote a Times official. On April 19 Sullivan filed a five-hundred-thousand-dollar defamation suit against the newspaper. Although Sullivan claimed no actual financial loss as a result of the alleged libel, he said his reputation had been damaged by the imputation that, in his capacity as supervisor of the police department, he had acted in an unlawful manner.
Within a week of Sullivan’s action against the Times , similar suits were filed by Montgomery’s two other commissioners, the mayor of the city, and the governor of the state, John Patterson. Each asked for five hundred thousand dollars in damages, except Patterson, who, in keeping with his higher office, sought a million.
The reaction was, of course, out of proportion to the offense. This was not just a dispute about a few relatively trivial errors; after all, the gist of the advertisement, that civil rights demonstrators had encountered considerable violence on the part of Southern lawenforcement officials, was undeniably true. Nor was it simply an attempt to seek redress for damaged reputations; if anything, Sullivan’s stature in the community had been enhanced by the ad. Rather, the Alabama libel suits represented a conscious effort to intimidate the Northern press. The recent lunch-counter sit-ins had attracted scores of reporters to the Deep South, and the news they sent home did not tend to show that part of the country in the most favorable light. Just the week before Sullivan filed his suit, the Times ’s own Pulitzer Prize-winning reporter, Harrison Salisbury, was in Alabama working on a series of articles about the racial conflict. His first piece appeared under the headline FEAR AND HATRED GRIP BIRMINGHAM . Salisbury’s story provoked an equally perfervid reaction in that city. The three city commissioners, including Sullivan’s counterpart, “Bull” Connor, each filed five-hundred-thousand-dollar libel actions against the Times . And in September of that year Salisbury was indicted by a grand jury on forty-two counts of criminal libel, for which he faced a total of twenty-one years in jail.
In all, the Times faced more than six million dollars in libel judgments in Alabama—far more than it earned in profits in any given year. It was forced to keep its reporters out of the state for months in order to avoid having anyone in Alabama upon whom legal papers could be served. And perhaps most alarming, a number of prominent attorneys in Montgomery and Birmingham refused to handle the cases. “In all the years I have practiced law,” Louis Loeb, the Times ’s chief counsel later told Harrison Salisbury, “nothing had ever arisen that was more worrisome Nothing scared me more than this litigation.”
Loeb had good reason to be concerned. By the time the Sullivan case came to trial in November 1960, all semblance of fairness had been discarded. Montgomery was gearing up to celebrate the centennial of the Confederacy. The presiding judge, Walter B. Jones, a staunch segregationist, refused to allow blacks and whites to sit together in his courtroom. “The Fourteenth Amendment has no standing whatever in this court,” he remarked during one of the related Times cases. “It is a pariah and an outcast.”
The trial lasted three days. M. Roland Nachman, the plaintiff’s lawyer—he also happened to be chief counsel to the Montgomery Advertiser —put six local businessmen on the stand to testify that they assumed the Times ad referred to Sullivan, even though he wasn’t mentioned by name, and that if the allegations were true, they would have been damaging to his reputation. T. Eric Embry, a Birmingham attorney who acted as local counsel for the Times , sought to undermine the commissioner’s own testimony. He argued that since a number of the allegations concerned matters clearly not under police control—the expulsion of the students, for example, or the perjury indictment of Dr. King—they could not possibly have referred to Sullivan. Three Times officials also took the stand, testifying that the paper had accepted the ad in good faith and had no reason to believe it untrue.
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.”
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.
From his office in downtown Washington, “General” Arthur Hanson, counsel emeritus to the American Newspaper Publishers Association, surveys the entire battlefield of modern libel law. As a founder and chief officer of the Mutual Insurance Company, one of the major underwriters of libel insurance in the country, he has been directly or indirectly involved in more than four thousand libel cases over the past twenty years. As author of Libel and Related Torts , one of the leading legal works on the subject, he has an encyclopedic knowledge of the terrain. And as counsel to the publishers’ association, he has participated in many of the significant press skirmishes of the past two decades.
Eighteen years ago Hanson’s was one of the few voices in the media to sound a discordant note about Times v. Sullivan . At an ANPA convention in April 1964, a month after the Court’s ruling came down, he warned that the decision was likely to open a floodgate of libel litigation. “Everyone was running around saying, ‘Hell, we don’t have to worry about libel anymore,’ ” the crusty, sixty-five-year-old ex-Marine major general recalled one afternoon last spring, sitting at his desk, fielding phone calls on a voice box. “Well, no one had bothered to read the decision. It may have closed the door on actions by public officials, but it didn’t say a damned thing about anyone else.”
Indeed, the Times case left a number of important issues unresolved, not the least of which was the scope of its intended protection. If a police commissioner could no longer recover damages without proving actual malice, what about the president of a corporation, or a movie star, or an airplane pilot—people whose names may be in the news but who are clearly not public officials? Could they now sue with impunity? Hanson’s fears, as it turned out, were premature. Throughout the 1960s the Warren Court continued to expand its First Amendment guarantees. In two related 1967 decisions the Court ruled that the actual-malice standard applied to public figures as well as to public officials. In 1971 the Court went even further, extending the standard to individuals who are neither public officials nor public figures but who happen to be caught up in events of public interest. For a time, it seemed, the Supreme Court was on the verge of putting Hanson’s libel insurance company out of business.
But beginning in the early 1970s, with the rise of the Burger Court, the tide began to change. In a series of decisions over the course of the next decade, the justices chipped away at the definition of a public figure. They found, for example, that a prominent Chicago attorney, who did not voluntarily thrust himself into a controversy, was, for the purposes of a libel suit, not a public figure; that a Palm Beach socialite involved in a widely covered divorce proceeding was a private figure, even though she had held frequent press conferences; and that a man who, twenty years earlier, had been convicted of contempt of court in a highly publicized espionage case had never been a public figure and therefore did not have to establish malice in order to win his case. By the end of the decade the distinction between private and public figures had completely broken down. As Bruce Sanford, a First Amendment lawyer for the Scripps-Howard newspaper chain, put it: “The public figure doctrine is a failed doctrine of law. It’s a mess. In one state a wrestling coach is a public figure, and in the next state he’s not.”
The other issue left unresolved by the Times case was the actual malice standard itself. In order to decide whether a reporter had acted with reckless disregard for the truth, or with knowledge that a statement was false, a jury must have access to some state-of-mind evidence. What was the reporter thinking at the time he wrote the story? Why did he decide to interview one person rather than another? Who was the source of a particular piece of information? In the hands of a skillf ul lawyer, the pre-trial discovery process could be used as a crowbar to pry into areas the press had traditionally considered privileged—which is exactly what happened in a forty-four-million-dollar libel suit brought against CBS in 1974 by Lt. Col. Anthony Herbert. Herbert, a muchdecorated soldier who claimed he was defamed by a 60 Minutes broadcast, sought to delve into the network’s editorial decision-making process in order to establish actual malice. CBS refused to answer his questions, and the pre-trial dispute went all the way to the Supreme Court. Many observers saw the justices’ refusal to uphold CBS’s claimed editorial privilege as further evidence of the Court’s hostility to the press; in fact, it was an inevitable consequence of Brennan’s actual-malice standard. Even Brennan himself, who dissented from the ruling, was forced to concede that his position was “paradoxical.”
What troubles Arthur Hanson most right now, though, is the hostility of juries toward the press, hostility he thinks not altogether unjustified- “We’ve got some pretty arrogant people in the press"—but hostility that nevertheless is pushing the cost of libel insurance sky high. In recent years this enmity has manifested itself in a number of dramatic judgments against the media. In March 1981 the actress Carol Burnett won a $1.6 million libel suit against the National Enquirer , which had published an item, later retracted, suggesting she had been drunk in a Washington restaurant. A few weeks earlier a jury in Wyoming awarded Kimberli Pring, a former Miss Wyoming, $26.5 million in damages resulting from the publication of a short story in Penthouse magazine in which a fictional Miss Wyoming was described as having the power to levitate men by performing fellatio. And in perhaps the most alarming libel case in recent years, a jury in Alton, Illinois—the town that martyred Elijah Lovejoy—awarded $9.2 million to a local contractor who claimed his business was ruined as a result of a memorandum written by two Alton Telegraph reporters that was never even published in the paper. The Telegraph , forced into bankruptcy proceedings by the judgment, recently settled out of court for a reported $1.4 million. Although each of these cases is atypical in some respects, taken together they signal a clear trend. Not since the days of the Alabama libel wars have juries held the press in such contempt. “These cases don’t just have a chilling effect,” Hanson observed. “They may have a killing effect.”
Still, for all the retrenchments in the field of libel over the past ten years, the Supreme Court decision in Times v. Sullivan stands as a bulwark against government intimidation of the media. Rod Nachman, the lawyer who lost the case eighteen years ago, can testify to that.
In 1979 two Alabama building inspectors who had been dismissed from their jobs after an investigation of corruption in their department sued both the state official who fired them and the Montgomery Advertiser , which reported the news. The two inspectors asked for $3.5 million in damages from the paper. Nachman, who was chief counsel to the Advertiser in 1979, as he was in the early 1960s, found himself in an unusual position. The case he had argued and lost before the Supreme Court was now, of course, the cornerstone of his defense: since the two building inspectors were obviously public officials, they would have to prove actual malice on the part of the paper. Sure enough, when the case came to trial in September 1981, the jury found in his favor. “My client,” Nachman said with a laugh, “thought the greatest thing I ever did was lose the Sullivan case.”
Although he thinks the Supreme Court gave the press “more license than they ought to have to criticize public officials,” he is not altogether unhappy with the way things turned out. If anything, he seems a bit worried that the pendulum may be swinging too far back in the other direction: “I once made the statement that the only way the Supreme Court could have decided against me was to change the law of libel, and that’s just what they did. I also said they may change it back some day. Right now, I live in constant fear of losing the Times case twice.”