Yesterday was the fiftieth anniversary of the US Supreme Court’s decision in the testy, tense libel case of New York Times v Sullivan. It’s an anniversary every Brit who believes in freedom should both celebrate and envy. We should celebrate it because the court’s decision struck a brilliant blow for press freedom and against defamation laws. Indeed, according to one account, ‘the practical effect [of the decision] was that defamation was effectively destroyed in America’. And we should envy it because, on this side of the pond, we remain saddled with illiberal, censorious libel laws better suited to the Middle Ages than to the twenty-first century. Fifty years after Sullivan, we in Britain need urgently to catch up with our American cousins by destroying our defamation laws, too.
The Sullivan case kicked off on 29 March 1960, when, at the height of the civil-rights conflict in the south of America, the New York Times ran a one-page advert headlined ‘Heed their rising voices’. Designed to raise funds for the defence of Martin Luther King against an indictment for perjury in Alabama, the ad focused on black southerners’ struggle for the right to vote and on the predicament of southern black students who were being harassed for attending newly non-segregated schools and universities. ‘Thousands of southern negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity’, the ad said, but they are being ‘met by an unprecedented wave of terror by those who would deny [the Bill of Rights], which the whole world looks upon as setting the pattern for modern freedom’. The ad was signed by 64 individuals, including black clergymen, trade unionists, singers and actors, and members of the Committee to Defend Martin Luther King.
Even though he was not named in the advert, LB Sullivan, the public safety commissioner of Montgomery, Alabama, believed that the ad implicitly defamed him by suggesting the forces under his control were engaged in a ‘wave of terror’, and so he sued the New York Times and four of the black ministers who had signed the ad. As required by Alabama law, he first wrote to the NYT to ask that it issue a retraction for what he described as the advert’s ‘gross errors’. But the NYT refused – saying ‘[we] are somewhat puzzled as to how you think the statements in any way reflect on you’ – so Sullivan took the paper and the four ministers to court in Alabama. He won, on the basis that the NYT advert did indeed get many facts wrong, including the claim that black students had been padlocked into a university dining hall and that King had been arrested seven times in Alabama (in fact it was four times). Sullivan was awarded $500,000. The NYT appealed against the decision at Alabama’s State Supreme Court, but the decision for Sullivan, and against the paper, was upheld.
Eventually, the NYT took its appeal to the federal Supreme Court – and the decision made there, on 9 March 1964, almost four years after the original advert had appeared in the pages of the NYT, would change America forever. The nine justices of the Supreme Court found unanimously in the NYT’s favour and struck down the judgement of the Alabama court as ‘constitutionally deficient’ on the basis that it ignored ‘the sturdy safeguard [of freedom of speech] embodied in the First Amendment’.
The Supreme Court’s Sullivan decision still makes for scintillating reading 50 years on. It basically defended the right of the people and the press to be not only critical of, but also cutting about public officials. ‘[D]ebate on public issues should be uninhibited, robust and wide open’, the court said, and therefore such debate ‘may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials’. In essence, the justices were defending the right to be offensive, the right to rattle, rile and blaspheme against those in authority and the ideas they propagate. Even more strikingly than that, they defended the right to be wrong, the right to publish inaccuracies and untruths. Recognising that the ad did get some basic facts wrong, the justices nonetheless declared that ‘erroneous statement is inevitable in free debate, and…it must be protected if the freedoms of expression are to have the “breathing space” that they need to survive’.