The cases that define the US free press
The cases that define the US free press

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The cases that define the US free press 01:26

The newspaper ad that changed everything

Updated 7:52 AM ET, Mon November 20, 2017

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Jonathan Peters is a media law professor at the University of Georgia, with appointments in the Grady College of Journalism and Mass Communication and the School of Law. He also is the press freedom correspondent for the Columbia Journalism Review. Twitter: @jonathanwpeters. The views expressed in this commentary are his own.

(CNN)In March 1960, The New York Times published a paid ad from a group supporting Dr. Martin Luther King Jr., setting off a chain of events that would change the role of the press in America and help shape our public discourse for decades.

Jonathan Peters
Under the title "Heed Their Rising Voices," the ad began with these words: "As the whole world knows by now, thousands of Southern Negro students are engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the United States Constitution and the Bill of Rights."
The Deep South was segregated and increasingly under siege by protests against racism, and the full-page ad both solicited financial contributions and accused authorities in Montgomery, Alabama, of abusing protesters and violating the Constitution.
Although the ad didn't name any local officials, the Montgomery city commissioner who ran the police department, L.B. Sullivan, sued The Times for libel -- claiming the ad harmed his reputation because it reproached the police and included minor errors. The trial in state court produced a $500,000 jury award for the city commissioner.
The Times had struggled to defend itself because Alabama, like most states then, had adopted libel rules favorable to the plaintiff. For example, any statement at issue in a libel action was presumed to be false, and the publisher's fault was presumed, too. Complicating matters were the ad's minor errors, such as the claim that Dr. King had been arrested seven times rather than four.
The paper appealed to the Supreme Court -- partly out of concern that the jury award, combined with others in related cases, could bankrupt The Times.
The nobler reason for the appeal was the worry that the award would discourage reporting on the civil rights movement.
When the Supreme Court took the case, libel was seen as a state law claim that didn't implicate the First Amendment. That put The Times lawyer in a difficult spot, having to ask the justices to change the law. So he likened Alabama's libel rules to those of the Sedition Act of 1798, which made it a crime to criticize the federal government.
The argument was that our young nation rejected that kind of suppressive approach in 1800 by voting out John Adams, who signed the Sedition Act -- and replacing him with Thomas Jefferson, who widely criticized the act and, as president, directed district attorneys to cease all prosecutions under it, as it expired.
That argument worked.
In its decision March 9, 1964, the Supreme Court reversed the jury award and brought libel law into the First Amendment's orbit. Justice William Brennan Jr. wrote the majority opinion and opened by saying that the Court had considered the case "against the background of 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."
Justice William Brennan Jr.'s majority opinion in Times v. Sullivan enabled strong reporting on public issues.
And quoting a prior decision, Brennan wrote that "public discussion is a political duty, and that this should be a fundamental principle of the American government."
Brennan discussed the Sedition Act and said it had "first crystallized a national awareness of the central meaning of the First Amendment" -- the right to criticize the government. He also noted the Sullivan case's civil rights context, calling the ad "an expression of grievance and protest on one of the major public issues of our time.
Then, critically, Brennan reasoned that "[e]rroneous statement is inevitable in free debate ... and must be protected if the freedoms of expression are to have the breathing space that they need to survive."
To effectuate that idea, Brennan set out a new fault standard -- highly protective of speech -- for a public official to meet in order to win a libel claim. It required the official to prove that the defendant made the statement at issue knowing that it was false, or made it in reckless disregard of its truth or falsity. This was revolutionary, ending the burden on defendants to prove the truth of what they said, and creating a bar high enough to protect most criticism of the government.
Sullivan's immediate impact was to embolden news organizations to cover the civil rights movement more actively -- and later the Vietnam War and Watergate. That said, the decision left open a number of questions: Who qualified as a public official? What about an influential public figure? What constitutes knowledge or reckless disregard? The Supreme Court has since answered those and other questions.
It's worth reflecting on Sullivan today to appreciate why the press is constitutionally protected and democratically essential. This is a critical time. The President denounces the press nearly every day, and other elected officials are parroting his rhetoric.
Reporters are being assaulted while covering protests. Arrested, too. And sued by the wealthy. Meanwhile, public opinion of the press is low, and a recent survey revealed that many Americans are poorly informed about the First Amendment. Over a third can't name any rights that it guarantees.
Journalists can't do their jobs if the institution of the press is delegitimized and/or if the legal protections for that institution aren't understood.
I've spent my career exploring the long effort to define those protections, derived from 14 words of the First Amendment: "Congress shall make no law ... abridging the freedom of speech, or of the press." No case has illuminated those words better than Sullivan, which offered, as the Times itself observed in 2014, "the clearest and most forceful defense of press freedom in American history."
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Above all, the decision recognized that a free press, however imperfect, is the lifeblood of a healthy democracy, one in which journalists are both benefactors and beneficiaries of the First Amendment -- protecting and relying on its freedoms to inform their communities and enable democratic participation.