Protecting the Best Men: An Interpretive History of the Law of Libel

During the decades that followed World War II, First-Amendment freedoms became a subject of intense legal debate. Free-speech claims, especially those made by people who had run afoul of legislative investigations or who had been charged under the sedition law of 1940 (the Smith Act), initially provoked the most controversy; but eventually the law of political libel also came under scrutiny. Had Zechariah Chafee issued his generally upbeat conclusions about the state of libel law in 1964, rather than a decade and a half earlier, his views would have been challenged. By the early 1960s, defamation law became, as it had been in the nineteenth century, a subject for extensive and serious legal debates. The case of New York Times v. Sullivan ( 1964), in which the United States Supreme Court mandated a whole new national approach to defamation law, encapsulated most of the issues surrounding the law of libel; it also reflected many of the social-political-legal dilemmas of mid-twentieth-century liberalism. As always, the law of libel could not be understood apart from the larger history of the time.

Times v. Sullivan grew out of the civil rights battles of the 1950s and 1960s, struggles in which activists first converted the streets of the Deep South into free-speech forums and then enlisted the mass media as an ally for attracting new political supporters, especially ones from outside the South. In their challenge to the white southern legal structure, the civil rights movement soon ran headlong into the law of libel.

The most prominent defamation suit resulted from a paid political advertisement entitled "Heed Their Rising Voices", which appeared in the 29 March 1960 issue of the New York Times. A plea for funds to finance new campaigns of nonviolent civil disobedience, the advertisement charged officials in Montgomery, Alabama, with repression of civil rights activists and condemned a "reign of terror" by private vigilantes. L. B. Sullivan--a Montgomery police commissioner who claimed that the ad falsely accused him of ordering repressive measures and of inciting violence--sued the Times and four prominent black civil rights leaders, including Ralph David Abernathy. "Heed TheirRising Voices"

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