On Feb. 25, 1960, more than two dozen students of Alabama State College (formerly Alabama State College for Negroes) went into downtown Montgomery for lunch. Their chosen spot was the county courthouse’s cafeteria.
As soon as they arrived, according to the Alabama Heritage website, “the white snack bar owner acted quickly to halt the protest, closing the lunchroom, turning off lights, and asking the patrons of the all-white establishment to leave.”
Weeks of protests and counter-protests followed, with gangs of white men armed with “small baseball bats concealed in paper bags” — odd detail, that — “ensuring that the city’s department stores and lunch counters remained segregated.”
The governor demanded that the college president expel the lunch-seeking students. Predictably, the expulsions provoked more protests. On March 9, the New York Times reported: “The police broke up a Negro protest demonstration on the campus of Alabama State College today and took thirty-four students and a faculty member to jail.”
Twenty days later, a civil rights organization ran a full-page ad in the Times. Its lengthy text began by describing student protests in Orangeburg, South Carolina, then moved on to Alabama State College, and then listed protests in eight other named places plus “a host of other cities in the South.”
After mentioning all those places, it referred to “the Southern violators of the Constitution” who were persecuting Martin Luther King Jr.
The commissioner of the Montgomery Police Department, Lester Bruce Sullivan, sued for defamation. Sullivan wasn’t named in the ad. But he complained that it contained falsehoods.
For example, it said the Alabama students “sang ‘My Country, ‘Tis of Thee’ on the State Capitol steps,” when the Times itself had reported they sang the national anthem. The ad claimed that police “ringed” the campus when they had merely descended in large numbers.
Moreover, the bit about “Southern violators” could be understood to refer to Sullivan personally, or so he contended (and I can only admire the lawyer who kept a straight face while making that argument). On that premise, other parts of the ad were erroneous, too, since they described events that occurred in those other places.
The Alabama jury awarded Sullivan $500,000, the equivalent of $4.88 million today. The Alabama Supreme Court upheld the verdict on appeal.
A legal analysis of the Alabama Supreme Court opinion is, in one sense, beside the point. The whole case was an exercise in bad faith. The court claimed jurisdiction over the Times because it had covered “so-called ‘demonstrations'” in Alabama and the Civil Rights movement generally, and no one can seriously doubt the court’s purpose was to punish the paper for its sympathetic coverage.
But the court observed the outward formalities of judicial decision-making, and in doing so established the following legal rule: any criticism of the Alabama police is “libelous per se” and therefore personally defamatory of the police commissioner, even if that person isn’t named. Printing such material exposes a newspaper to confiscatory fines unless it can prove every word of its publication is accurate in every detail, including song titles.
Moreover, if there’s a danger the paper can meet that burden, Alabama courts were given permission to twist the paper’s words (as with “Southern violators”) until the burden became impossible.
The problem with this approach, as the United States Supreme Court unanimously held, was that the First Amendment of the United States Constitution guarantees a free press.
How can the federal Supreme Court protect a constitutional right against a state court that rejects it? That was the underlying issue presented by the famous case of New York Times Co. v. Sullivan.
In overturning the Alabama verdict, SCOTUS established a new constitutional rule: (1) the burden of proving falsity lies on the public official seeking to suppress negative publicity, and (2) the pubic official must also show that the publisher knew its words were false, or had good reason to suspect they might be, when it went to press.
But the real meaning of the case is even simpler: the First Amendment protects against judicial bad faith.
This has all become newly relevant because in the past 13 months Justices Clarence Thomas and Neil Gorsuch have both called for overruling New York Times Co. v. Sullivan. Thomas has done so twice, most recently at the end of June.
Last year, a high-profile judge, Laurence Silberman of the D.C. Circuit, a hero to many on the legal right, launched a broadside against Sullivan. His opinion complained that “most large papers across the country” including the old Alabama bugbear The New York Times, plus The Associated Press and TV news, were biased against the Republican Party. He added that he quite liked “Fox News, The New York Post and The Wall Street Journal’s editorial page,” though not its newsgathering.
This was all part of his constitutional argument for ditching the Sullivan standard.
Silberman was saying out loud what Thomas and Gorsuch barely hinted at. If these judges get their way — and it would be foolish to bet against them — we could soon be back to something resembling the legal standard established by the Alabama Supreme Court in 1962.
Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at firstname.lastname@example.org.