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New York Times Co. v. Sullivan: My Love Letter To The United States Supreme Court, And The First Amendment

Nov 22, 2010 By Patrick. Politics & Current Events

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 a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.

It was fashionable well before 1964, when Justice William Brennan wrote those words, to criticize the United States Supreme Court for “judicial activism” in which the Court stretches the words of the Constitution beyond their plain, or literal, meaning to invent new freedoms beyond those obviously meant by James Madison and other authors of the United States Constitution. In 1964, it was obvious to L. B. Sullivan, the Public Safety Commissioner of Montgomery Alabama, that the First Amendment did not permit the New York Times to publish an advertisement falsely attributing barbaric treatment of Martin Luther King and other civil rights protesters to the Montgomery Police Department.

After all, the words “Congress shall make no law … abridging the freedom of speech, or of the press” don’t explicitly say anything about state law, or the law of libel, or about the importance of free debate on political issues. L. B. Sullivan convinced a jury of twelve of his fellow white citizens of Montgomery that the New York Times had published these false statements:

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 reregister, their dining hall was padlocked in an attempt to starve them into submission.


Again and again, the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home, almost killing his wife and child. They have assaulted his person. They have arrested him seven times–for “speeding,” “loitering” and similar “offenses.” And now they have charged him with “perjury”–a felony under which they could imprison him for ten years.

When in fact the protesters at the Alabama capitol sang “The Star Spangled Banner,” not “My Country, ‘Tis of Thee,” and Dr. King was arrested only four times in Montgomery, not seven times.

So of course Mr. Sullivan was entitled to a libel judgment, to protect his reputation and that of the Montgomery Police, from outsiders such as the New York Times who printed lies, libel, and calumny without knowing the true facts. That Mr. Sullivan was a government official, and that the false criticism concerned the government of which he was a part, meant nothing. Facts is facts, and a false statement about the Montgomery Police Commissioner is every bit as actionable as a false statement about the lowest bum on Montgomery’s skid row.

Except that it isn’t. Meddling Justices of the Supreme Court found, for some reason, that it’s important for newspapers, and private citizens, to speak out about outrages such as firebombings, police beatings, and school padlockings, even if they get details like the song protesters sang as they were clubbed over the head, or the number of times Martin Luther King was arrested, flat-out wrong. According to the activists of the Supreme Court, in order to maintain a libel action, a public figure like L. B. Sullivan would have to prove actual malice, that the statements over which the suit was filed were not just false, not just disparaging, but utterly unreasonable, founded on no investigation, and made with no intent save to harm reputation. Something like (since a dead man can’t file a defamation action):

L. B. Sullivan sexually molests puppies every Sunday morning in the back alley behind the Piggly Wiggly.

That’s clearly malicious, and if by some miracle the cyborg body of L. B. Sullivan lives on today, I apologize to him.

But the Court held that the right of the public to criticize their government includes the right to criticize public officials, and that that right is too important to have it bogged down by lawsuits about whether Inspector Callahan, the San Francisco police detective who killed an unarmed suspect in the Scorpio murder case, fired six shots …

Or only five.

Of course, for those who disapprove of all this debate, all this criticism of the better sort of people like L. B. Sullivan, and all this horrid untidiness in which the hoi polloi are free to say the vilest things about government officials, there’s a better land. A land where ordinary people don’t have the right to exaggerate the number of times some uppity protester got arrested.

That land is Canada.

More here.

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