Go Ahead and Say It!

Freedom of the press and freedom of speech were clearly established as constitutional rights in the very infancy of the Republic, when the ten amendments collectively known as the Bill of Rights were welded to the U.S. Constitution. Since then, the courts have refereed a seesaw struggle to define the line between freedom and license. Last week, in a landmark decision, the Supreme Court unanimously advanced the boundaries of press freedom--and of free speech--farther than they have ever legally reached before.

The decision reversed a $500,000 libel judgment against the New York

Times and four Negro clergymen in Alabama. But it did far more than wipe out the award. It defused a welter of libel cases brought by public officials in the South against assorted critics, including nine other cases against the Times. And by holding that Alabama's libel laws are unconstitutionally broad, the court cast doubt on similar state libel laws all over the U.S.

The decision granted the U.S. citizen dramatic new immunity in the exercise of his classic right to sound off against his chosen leaders. The public conduct of public officials, the court ruled, is henceforth fair game, even if the criticism is misguided, unwarranted, undeserved or untrue. If the injured party expects to collect any damages, he will have to prove that the criticism was deliberately or recklessly false--in short, that malice was involved.

Inflammatory Language. No such caveats had discouraged the five public officials in Alabama who took offense at a full-page ad published in the March 29, 1960 edition of the Times. Paid for by friends of Integration Leader

Dr. Martin Luther King Jr., the ad solicited funds for Dr. King's defense against charges of state income tax evasion (he was subsequently acquitted). In language any Southern segregationist would find inflammatory, the ad stated that armed Montgomery, Ala., police ringed a local Negro college campus to subdue a student civil rights protest, and later locked students out of the dining hall "to starve them into submission." It also charged "Southern violators" with bombing Dr. King's home and with arresting him seven times.

It is not, always necessary in Alabama--or in many other states--to prove that defamatory statements are false or malicious. In some categories of cases, the defendant must convince the court that the statements are true; otherwise, falsity and malice are presumed. This burden rested on the defendant New York Times.

Soon after the ad appeared, L. B. Sullivan, a Montgomery city commissioner, brought suit for $500,000 in damages. Sullivan's suit was followed by four more: one from Montgomery Mayor-Earl James, two from other Montgomery city commissioners, and one from John M. Patterson, then Alabama's Governor. Perhaps in recognition of his higher office, Patterson asked double damages, or $1,000,000.

None of the men who brought suit had actually been named in the ad, but the Times itself admitted that the copy did contain inaccuracies: police had not padlocked the student dining hall; Dr. King had been arrested only four times, not seven. In an atmosphere steam-heated by the race issue, Alabama juries decided that the Times ad was indeed libelous. Commissioner Sullivan and Mayor James were awarded every penny they asked for; the Times appealed the Sullivan judgment all the way to the U.S. Supreme Court.

Robust Debate. Whatever merit Alabama courts had detected in Commissioner Sullivan's case was totally demolished. The First Amendment, said the Supreme Court, clearly spelled out "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." This commitment, the court has long held, binds the states through the 14th Amendment, which forbids them to abridge a person's liberty without "due process of law." Added the court: "The Times advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for constitutional protection."

As if to emphasize its point, the court took two further steps. It went out of its way to brand as unconstitutional the Sedition Act of 1798, which had levied heavy fines against anyone who uttered or printed "false, scandalous and malicious" statements against the U.S. Government or its officers. It also anticipated any ambition of Commissioner Sullivan's to revive his suit back home in Alabama. The Times may have been guilty of negligence in letting slip a few misstatements, said Justice William J. Brennan for the court, but it was not guilty of malice: "We consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands." Moreover, "there was no reference to respondent in the advertisement either by name or official position."

Say What You Please. Strong as the Supreme Court opinion was, it did not satisfy some of the most liberal Justices on the bench--Arthur J. Goldberg, former U.S. Secretary of Labor, and Justice Hugo L. Black, the court's most indefatigable exponent of free speech. Both wrote concurring opinions in which Justice William O. Douglas joined.

"If the rule that libel on government has no place in our Constitution is to have real meaning," said Goldberg, "then libel on the official conduct of the governors likewise can have no place in our Constitution." He proposed granting critics total immunity, partly on the grounds that a public official has "equal if not greater access" to public forums, and can there readily neutralize any wrongs done to his reputation.

Justice Black went even farther. The Sullivan judgment, said he, offers "dramatic proof that state libel Taws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment. I regret that the court has stopped short of this."

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