Guest Essayist: Gennie Westbrook

A group of well-known civil rights leaders ran a full-page advertisement, “Heed Their Rising Voices,” in the New York Times on March 29, 1960. The ad described an “unprecedented wave of terror” in police attacks and other government sponsored oppression against peaceful demonstrators in Montgomery and other southern cities. The ad closed with a plea for readers to provide both moral support and financial donations to sustain the civil rights movement because America’s “good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs.”

The examples of official oppression listed in the ad were mostly correct, but there were some mistaken or exaggerated details. For example, peaceful student demonstrators from Alabama State College sang “The Star-Spangled Banner” from the steps of the state capitol in Montgomery, but “Heed Their Rising Voices” listed their song as “My Country, Tis of Thee.” The college expelled the leaders of the peaceful demonstration. Many of the students at their campus protested the expulsions, but the ad claimed that “the entire student body protested to state authorities by refusing to re-register” for the next term at the college. The piece falsely stated that “their dining hall was padlocked in an attempt to starve them into submission.”

In April, Montgomery Police Commissioner Lester Bruce Sullivan sued the New York Times for libel (publishing something that they knew was false and could cause harm), even though his name was never mentioned in the ad. Pointing to the inaccuracies and exaggerations, he maintained that, since he was in charge of the Montgomery police force, the false and critical ad about the city of Montgomery had harmed his reputation. Grover Hall, editor-in-chief of the Montgomery Advertiser, wrote that the “Rising Voices” ad had committed “crude slanders” against everyone at City Hall. Birmingham, Alabama, officials also sued the Times for libel of their city in a series of articles about race relations there. Southern officials hoped to use libel law to reduce press coverage of the civil rights movement. Other media outlets across the south faced hundreds of millions of dollars in potential damages as a result of similar lawsuits.

Sullivan’s lawsuit in November 1960 took place during the city’s celebration of the centennial of the Confederacy, in the segregated courtroom of Judge Walter B. Jones. He was a determined white supremacist who displayed a Confederate flag behind the bench in his courtroom, and members of the jury were permitted to wear Confederate uniforms during the trial. Judge Jones had already decided that the ad published in the Times was libelous, and instructed the jury that they need not decide which of the challenged statements referred to Sullivan, but merely to determine if the article generally applied to Sullivan. The jury deliberated for only a couple of hours before finding that the Times owed Sullivan $500,000 for the newspaper’s damage to Sullivan’s reputation. The Alabama Supreme Court affirmed the decision in 1962, and the Times appealed the decision to the Supreme Court.

The New York Times argued that it had no intention to defame Sullivan, indeed, had never mentioned his name. The piece in question was not an article written by Times staff and subject to editorial review, but an ad place by a third party. The newspaper had no reason to believe that the ad included false statements, and a free press would be severely crippled if newspapers were required to fact-check every single criticism of every public official.

The Court issued a unanimous decision written by Justice William J. Brennan, Jr., deciding in favor of the newspaper. Brennan wrote, “[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ”An important question was whether the statements that Sullivan believed attacked him had lost First Amendment protection because they were false and allegedly defamatory.

Brennan maintained that “erroneous statement is inevitable in free debate,” and even false statements must be protected in order to maintain the “breathing space” that free speech and press require. Otherwise, fears of liability would cause speakers to “steer far wide of the unlawful zone,” creating a chilling effect. The Alabama rule “compelling the critic of official conduct to guarantee the truth of all his factual assertions” would result in self-censorship “because of doubt whether it can be proved in court or fear of the expense of having to do so.” The result would “dampen the vigor and limit the variety of public debate.”

This high level of protection of free speech, however, did have limits. Public officials can recover damages for false statements that damage their reputations if they can prove that the statements were made with “actual malice; that the statement was made with… knowledge that it was false or with reckless disregard of whether it was false or not.” The forceful protection that this decision provided for freedom of speech and the press resulted in a powerful role for the press in the civil rights movement. As reporters continued to run extensive coverage of nonviolent protests and the brutal responses of officials in places like Montgomery and Birmingham, the press played a commanding role in the success of the civil rights movement.

Many analysts call this decision the most important First Amendment case in Supreme Court history. It established a high and robust protection for freedom of the press, contributing to an ethos of defense for the speech we hate. It has dominated interpretation of free press cases for more than fifty years. University of Chicago Law School professor Geoffrey R. Stone writes that the decision was “not only a triumph for free expression, it was a triumph for civil rights and racial equality as well.”

New York Times v. Sullivan (1964) Supreme Court decision:

Gennie Westbrook, formerly a classroom teacher, is a Madison Fellow (2000 TX), and senior advisor for education at The Bill of Rights Institute.

Sources Consulted

Geoffrey R. Stone. New York Times v. Sullivan (1964) The Oxford Companion to the Supreme Court, Kermit Hall, ed. New York: Oxford University Press 1992

New York Times v. Sullivan (1964 Bill of Rights Institute eLessons

L.B. Sullivan Compliant and Full-page Ad, “Heed Their Rising Voices,” March 29, 1960

New York Times v. Sullivan (1964)

Roy S. Gutterman. “The Landmark Libel Case, Times v. Sullivan Still Resonates 50 Years Later,” Forbes Opinion Mar. 5, 2014.

Mary-Rose Papandrea. The Whole Truth: How an advertisement in the New York Times changed legal history, Boston College Magazine, Fall 2011

2 replies
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you for the essay.

    PTL for a “high and robust protection of free press.”

    Now if SCOTUS could manage the courage to render a high and robust protection of privacy and fee religion. The Federal encroachment on our privacy is persistent and discouraging legacy. Our right to publicly speak Jesus name or “God” is under seige.



Join the discussion! Post your comments below.

Your feedback and insights are welcome.
Feel free to contribute!

Leave a Reply

Your email address will not be published. Required fields are marked *