Academic journal article The Innovation Journal

New York Times V. Sullivan: Civil Rights, Libel Law, and the Free Press

Academic journal article The Innovation Journal

New York Times V. Sullivan: Civil Rights, Libel Law, and the Free Press

Article excerpt

Kermit Hall and Melvin I. Urovsky New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press Lawrence: University of Kansas Press, 2011

Reviewed by Howard A. Doughty

Having found myself on the receiving end of libel suits more often than is good for me, I have become familiar with some of the more interesting legal precedents in the field-both in Canada and in the United States. They have so far stood me in good stead, for I have yet to be convicted of any such offence.

My main interest in the book under review is not, however, the case itself, but the circumstances in which it was heard and the influence those circumstances had on the final decision. The principal points to be made are:

(1) despite the conceits of lawyerly professionals concerning the alleged uniqueness and special qualities of "legal reasoning" and the ideal of having the law stand above petty politics and public opinion, the fact is that current events, the personal ideology of judges and broad changes in social arrangements deeply influence what judges do;

(2) no matter how decisions are made, legal findings can have profound effects on social behaviour, with an important question being whether "judge-made law" runs ahead of public opinion and legislative action or runs to catch up with changing social values and legislative choices.

At least since John Milton published his Areopagitica in 1644, the concept of free speech has been an important item in the liberal inventory of rights-whether natural, divinely ordained or humanly constructed. The struggle for liberty in expression and especially the rights of a free press have rarely been more eloquently expressed than in the First Amendment to the Constitution of the United States, a text which I personally regard as having almost sacred status among inspired and inspiring political documents. Protection under that and similar statements of fundamental liberties, such as the somewhat less ornate version contained in the Canadian Charter of Rights and Freedoms 2(b), has been more easily stated in theory than instituted in procedure and process. Less than a decade after the United States affirmed the inviolability of free speech, for instance, it passed the infamous Alien and Sedition Acts of 1798, which made it a criminal offence to criticize the federal government, a crime for which an opposition member in Congress, Matthew Lyon, was actually jailed for four months. The road from principle to practice is sometimes hard.

In terms of the Common Law, a singular turning point came in 1964 (New York Times Co. v. Sullivan, 376 US 254 - 1964), when the Supreme Court of the United States handed down a decision that affirmed the rights of free speech and a free press beyond anything that had applied before. As it happened, the Court got almost everything at least slightly wrong in the process of coming to a decision that was almost certainly right.

The basic facts of the matter were clear. On 29 March, 1960, a full-page advertisement was printed in the New York Times under the title, "Heed Their Rising Voices," a phrase borrowed from an earlier editorial in the same newspaper. It was intended to help raise money for Dr. Martin Luther King and other civil rights activists who were regularly being arrested by local authorities in the American South on all sorts of charges-real, imagined or mischievously concocted-as part of a common, if not necessarily a well-organized and carefully coordinated, plan to obstruct the campaign for civil rights and especially the right to vote.

Among the specific allegations made were that:

* eight hundred students from the black Alabama State College in Montgomery had marched to the state capitol and sung "My Country, 'Tis of Thee";

* their payback was expulsion from the school;

* police, armed with shot-guns, had surrounded the campus;

* college officials had locked the dining hall in an effort to "starve out" the occupying students;

* Dr. …

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