In Sullivan's Shadow: The Use and Abuse of Libel Law Arising from the Civil Rights Movement, 1960-89

Article excerpt

This article examines the use of libel in the shadow of the landmark New York Times v. Sullivan case in 1964. By exploring lesser-known cases, scholars can better understand the impact that libel had on the fight for civil rights in the South. Legal historians agree Sullivan stopped what would have been an onslaught of libel suits for civil rights coverage, but research has been scarce on similar, lesser-known suits and their impact on delaying coverage of the movement. The Supreme Court's decision opened the doors for the press to cover demonstrations and activities in the South, but this study shows that Sullivan was only one such libel case that offered consequences for coverage of the movement. Sullivan-like cases took much longer to move through the courts than scholars have realized and played an integral role in shaping coverage of the issue.

In the hours before the bloody race riots at the University of Mississippi in 1962, highway patrolmen from around the state descended upon the campus to back up federal officers.' African-American James Meredith was attempting to desegregate the university by court order, and a white mob with shotguns and Molotov cocktails was aiming to stop him. Protesters flooded the Oxford campus, spurred by Governor Ross Barnett's rebellious threats to defy a federal court order to admit him.2 As violence erupted on September 30, 1962, the Mississippi Highway Patrol melted quietly into the crowd and left the roiling campus to federal officers, a cobbled-together pack of 536 deputy marshals, border patrolmen, and prison guards who were scarcely prepared to deal with the chaos. Forbidden to use their side arms, the officers had only tear gas to keep hundreds of rioters and anarchy at bay. By dawn, two people were dead and 160 federal marshals were injured, some with gunshot wounds, stretched out on a blood-covered administration building floor.3

After an article on the riot, "What Next in Mississippi?" ran November 10, 1962, in die Saturday Evening Post, the head of the Mississippi Highway Patrol, T.B. Birdsong, filed a libel suit against the magazine, seeking $1 million for himself and $1 million for each of his 220 patrolmen.4 He said he and his men were libeled in two sentences about their failure to take control of the deteriorating situation: "A sizable portion of blame must go to the grayuniformed men of the Mississippi Highway Patrol. "Those bastards just walked off and left us,' said one top official of the Department of Justice."5 He said the words "those bastards" were "obscene and fighting words" that reflected on his personal reputation and that of his officers.6

This is a study of libel cases filed by southern public officials, primarily in the 1960s, relating to African Americans' escalating fight for equal rights.7 The focus is on little-known lawsuits, such as Birdsong, which were filed in the shadow of the famous New York Times, v. Sullivan case in Alabama in 1960, through its adjudication in 1964, and even as late as 1989.8 This article will expand upon the evidence and argument that southern leaders used existing libel laws to craft what amounted to a sedition law to stop the press from covering the civil rights struggle.9 It has been well established that had the Supreme Court failed to overturn Sullivan, the case's impact on the civil rights movement would have been staggering.10 Without the world looking at the South through the lens of the national press, southern officials and other segregationists would have been free to continue to squelch activism in their own way.11 "The last desperate reaction of a clinging regime was to try to suppress the message itself," wrote legal scholar Rodney A. Smolla in 1986. "If one could not stop the marches, one might at least keep the marches off television and out of the newspapers."12

Shattering precedent, the nation's high court constitutionalized libel law with the Sullivan decision, creating a new standard that required public officials to prove actual malice and insured that citizens were free to exercise their First Amendment right to criticize the government. …


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