Sandra Davidson. 21st Century Communication: A Reference Handbook. Editor: William F Eadie. 2009. Sage Publication.
How much freedom of expression is desirable? Should anyone be able to express anything at any time? Perhaps the English philosopher John Stuart Mill made one of the more eloquent statements supporting the freedom to air even the most repulsive ideas in 1859 in his work On Liberty. Mill says,
The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race, posterity as well as the existing generation…. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. (p. 10)
Mill is displaying confidence in humankind’s reason. If an idea is erroneous, let it be openly aired so people can see for themselves the error. Of course, one has to have some confidence in the basic rationality of people, as Mill does, before this view of openness is appealing. But even Mill thought that freedom of expression needed some limits:
Even opinions lose immunity, when the circumstances in which they are expressed are such as to constitute … a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor … ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer. (p. 11)
Likewise, U.S. Supreme Court Justice Oliver Wendell Holmes saw limits to freedom of expression when he famously said, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”
How much freedom of expression should a society tolerate? This chapter will explore how the U.S. Supreme Court has grappled with this question in three primary areas of communications law: (1) sedition; (2) prior restraint, also known as censorship; and (3) libel of public officials.
Sedition: A Roller-Coaster Ride for the Supreme Court
Openness and toleration, or lack of the same, play a large part in the topic of sedition. “Sedition” means verbal attacks on government and its trappings—its officers, laws, and institutions. Governments generally are more tempted to pass and enforce laws against sedition when their countries are in turmoil. The United States has followed that pattern, as the following history of sedition law demonstrates.
The First Amendment to the U.S. Constitution, passed in 1791, says, “Congress shall make no law … abridging the freedom of speech, or of the press.” But the First Amendment is not absolute, and it did not guarantee that the United States had true freedom of expression. Only 7 years after the First Amendment became law, Congress passed the Alien and Sedition Acts of 1798.
Events across the Atlantic helped passage of the Alien and Sedition Acts. France had had its revolution in 1789. It was a bloody affair, and some people in the United States were revolted because it was so bloody. Then, England went to war with France’s leader, Napoleon. There were split feelings over here about which country we should support—France or England.
Tensions mounted between the United States and France. Still, U.S. Vice President Thomas Jefferson and his Republicans favored France. President John Adams, and his Federalist Party, who favored England, passed the Alien and Sedition Acts in part to control Jefferson’s Republicans. Under one part of the Sedition Act, it was a crime to conspire with others (1) “to oppose any measure … of the government of the United States.” Conviction could result in a large fine and jail time.
Those convicted included Republican editors from Boston, New York, Philadelphia, and Richmond, Virginia, and a Vermont Congressman who referred to President Adams’s “continual grasp for power” and his “ridiculous pomp, foolish adulation and selfish avarice.” The reaction of the American people to these arrests could simply be called backlash. The Vermont Congressman’s constituents reelected him by a vote of 2 to 1 over his nearest rival, and Thomas Jefferson became the president in 1801, defeating the incumbent Adams (Davidson & Winfield, 2007).
In New York Times Co. v. Sullivan (1964), the U.S. Supreme Court commented on the Sedition Act, saying,
Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history…. Jefferson, as President, pardoned those who had been convicted and sentenced under the Act …, stating: “I discharged every person under punishment or prosecution under the sedition law, because I considered … that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”
Also, Congress, by an act passed on July 4, 1840, repaid fines because Congress considered the fines to be unconstitutional.
The Supreme Court did not test a sedition law until 1919, when it heard a case arising under the Espionage Act of 1917. When tensions heightened in 1917 with the Russian Revolution and with the United States becoming involved in World War I (a “war to make the world safe for democracy”), Congress passed the Espionage Act. Under the act, people could be punished for obstructing military recruitment, for causing disloyalty or insubordination within the armed forces, or for conspiring to obstruct recruitment or cause insubordination. The act imposed severe fines and imprisonment. Also, the law allowed the postmaster general to exclude seditious material from the mail. The following year, 1918, the law was broadened: Congress also criminalized urging curtailment of the production of necessary war material, such as ammunition.
The U.S. Supreme Court’s first sedition case was also its first case interpreting the First Amendment. Schenck v. United States (1919) started when Schenck, the general secretary of the Socialist Party of the United States, and some other defendants mailed leaflets out to draft-age young men, telling them that the draft violated the Thirteenth Amendment to the U.S. Constitution (1865). That amendment prohibits slavery or involuntary servitude. One leaflet, the Court said, “intimated that conscription was … a monstrous wrong against humanity in the interest of Wall Street’s chosen few,” and said, “If you do not assert … your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens … of the United States to retain.” Arguments on the other side, the leaflet said, came from crafty politicians and a mercenary press. Predictably, given the Espionage Act of 1917, the government said that the leaflet encouraged obstruction of the draft. Also, the government said that the defendants unlawfully used the mail to disseminate the leaflet.
Schenck and his codefendant were found guilty of violating the Espionage Act. They appealed, claiming that their leaflet was protected by the First Amendment. Justice Oliver Wendell Holmes wrote the opinion for the U.S. Supreme Court. The Court upheld Schenck’s conviction. In Schenck v. United States (1919), Holmes articulated his “clear and present danger” test. Holmes said,
We admit that in many places and in ordinary times the defendants in saying all that was said … would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.
Then, he uttered his famous line, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” The question, according to Holmes, is whether the words themselves and the circumstances in which they are used “create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” This “clear and present danger” test creates no bright line between what words are acceptable and what are not; whether there is a clear and present danger must be made on a case-by-case basis.
One week after deciding Schenck v. United States (1919), the Supreme Court upheld another conviction in Frohwerk v. United States (1919). Frohwerk was convicted of conspiring with another in producing the Missouri Staats Zeitung (the Missouri State News) and received a 10-year sentence. The paper allegedly attempted to obstruct military recruitment and to cause disloyalty in the military. Justice Holmes thought the language was on a par with that in Schenck v. United States (1919), with one article, in Holmes’ words, “declaring it a monumental and inexcusable mistake to send our soldiers to France” and speaking of “the unconquerable spirit and undiminished strength of the German nation.” Another spoke of the few amassing “unprecedented fortunes” and of the United States going to war to protect Wall Street loans: “We say therefore, cease firing.” On the same day it decided Frohwerk v. United States (1919), in Debs v. United States (1919), the Supreme Court upheld the conviction of a man who ran for president five times on the Socialist ticket. Eugene Debs believed that “the capitalist system has outgrown its historical function” and that it was “incompetent and corrupt and the source of unspeakable misery and suffering to the whole working class.” He was sentenced to 10 years for a speech he made in Ohio criticizing the government’s prosecution of persons for sedition. He extolled the virtues of socialism in his speech, but that is not what got him in trouble. The problem was that he told the crowd that he had just returned from a prison where he was visiting three of his friends who had aided and abetted another friend in failing to register for the draft. He eulogized those three friends and said that he was proud of them.
Debs did not help himself when at his trial he said this to the jury: “I have been accused of obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone.” Holmes wrote the opinion upholding Debs’s conviction for obstruction of recruitment. Eight months later, Holmes, who is sometimes called the “Great Dissenter,” dissented although the majority of the Supreme Court upheld the Espionage Act convictions in Abrams v. United States (1919). As for the facts leading to the case, the five defendants in Abrams v. United States (1919) were born in Russia. In the summer of 1918, the United States had sent marines to Siberia, which was supposed to be a strategic move against the Germans on the eastern front. But Abrams and his friends thought that this was an attempt by the United States to crush the Russian Revolution, so they put out pamphlets that attacked the special American expeditionary force that they said was sent to Russia to defeat the new Communist revolutionary government.
Convicted of conspiracy to encourage resistance to the war with Germany, Abrams and his four friends were sentenced to 20 years apiece for their leaflets—leaflets based on confusion. One of their pamphlets says, “Awake! Awake, you Workers of the World! Revolutionists!” It ends with this note: “It is absurd to call us pro-German. We hate and despise German militarism more than do you hypocritical tyrants. We have more reasons for denouncing German militarism than has the coward of the White House.” The majority opinion in the Abrams v. United States (1919) case is seldom quoted. The Court said, “Even if their primary purpose and intent was to aid the cause of the Russian Revolution, the plan of action which they adopted necessarily involved … defeat of the war program of the United States.” The Court pointed out that the five were trying to persuade people not to work in ammunition factories and Congress had made it a crime to urge curtailment of the production of necessary war material, such as ammunition.
The Court’s opinion in Abrams v. United States (1919) activated Holmes’s gag reflex. Holmes had written the court opinions in Schenck v. United States (1919) and Debs v. United States (1919) that upheld convictions, but he drew the line in Abrams v. United States (1919). In a fiery, impassioned dissent, Holmes called the leaflets “poor and puny anonymities” and said,
In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them.
Holmes’s most famous words from this dissent came, however, when he said,
When men have realized that time has upset many fighting faiths, they may come to believe … that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.
In short, Holmes introduced the marketplace-of-ideas theory into American jurisprudence in this often quoted dissent.
The “clear and present danger test” as applied in Schenck v. United States (1919), Frohwerk v. United States (1919), Debs v. United States, (1919), and Abrams v. United States (1919) did not protect freedom of speech and press. It was a balancing test, and the Supreme Court tipped the balance in favor of suppression of speech.
Suppression can come in many forms, including economic suppression. The Milwaukee Leader, a Socialist newspaper, had its second-class mailing permit revoked by a third assistant postmaster general in 1917. This meant that postage would cost 8 to 15 times as much for the newspaper. The U.S. Supreme Court upheld this revocation in United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson (1921). Editorials had called World War I an unjustifiable, dishonorable, capitalistic war and had called the president an “autocrat” and the Congress a “rubber stamp Congress.” One editorial said that soldiers in France were becoming insane in such vast numbers that long trains of closed cars were transporting them away from battle. The Espionage Act also made it a crime to “willfully make or convey false reports or false statements with intent to interfere with the operation and success of the military or naval forces of this country, or with the intent to promote the success of its enemies.” The Supreme Court said, “We cannot doubt that they [the newspapers] conveyed to readers of them, false reports and false statements with intent to promote the success of the enemies of the United States.” The newspapers also attempted to cause disloyalty in the military and to obstruct recruiting, the Court said. Again Holmes dissented, saying, “The United States may give up the Post Office when it sees fit, but while it carries it on, the use of the mails is almost as much a part of free speech as the right to use our tongues.”
In 1925, a defendant in a sedition case did make some headway with the U.S. Supreme Court. In Gitlow v. United States (1925), the Court agreed with him that freedom of speech and press are among the “fundamental liberties” protected by the due process clause of the Fourteenth Amendment. The Fourteenth Amendment, passed in 1868, in part says, “No State shall … deprive any person of life, liberty, or property, without due process of law.” The Fifth Amendment, passed in 1791, says that the federal government may not deprive a person of “life, liberty, or property, without due process of law.”
Gitlow had violated a New York statute that made it a felony to advocate violent overthrow of the government. That statute was passed in 1902, after President William McKinley was shot and killed. A member of the Left Wing Section of the Socialist Party and business manager of a magazine called Revolutionary Age, Gitlow arranged for a “Left Wing Manifesto” to be published in the magazine. The Manifesto called for mass strikes aimed at destroying the democratic state in the United States and establishing a “revolutionary dictatorship of the proletariat.”
Although the Court agreed that freedom of speech and the press are fundamental liberties, the Court also upheld Gitlow’s conviction. According to the Court, the Manifesto was not abstract philosophical doctrine or mere prediction of Communist victory; that would not have been enough to convict Gitlow. Instead, the Manifesto contained “the language of direct incitement.”
“A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration,” the Court said. The state, according to the Court, did not have to wait for “actual disturbances of the public peace or imminent … danger of its own destruction.” Instead, the state could “suppress the threatened danger in its incipiency.”
In this case, the Court said, it did not have to apply the “clear and present danger” test because the New York legislature had already determined that a danger existed from specific language—language advocating the violent overthrow of government. And if a legislative body had already determined that specific words “involve such danger of substantive evil that they may be punished,” then the question of whether the words are “likely” to bring about the evil is “not open to question.” In short, the Court deferred to the legislature’s judgment.
Holmes dissented in Gitlow v. United States (1925). He thought the Court should apply the clear and present danger test. “Every idea is an incitement,” Holmes opined. “The only difference between the expression of an opinion and an incitement … is the speaker’s enthusiasm for the result. Eloquence may set fire to reason.”
Now, the United States was moving toward World War II. Fear of domestic Communists was also causing tension. In 1940, the U.S. Congress passed the Alien Registration Act, also known as the “Smith Act” because Representative Howard Smith of Virginia had introduced it.
The Smith Act was quite similar to the New York law under which Gitlow had been convicted. Advocating violent overthrow of the government, printing anything that advocated violent overthrow of the government, or conspiring with others to do either was forbidden under the Act. In 1951, the Supreme Court heard its first case arising under the Smith Act, Dennis v. United States (1951). The 11 defendants in Dennis v. United States (1951) were charged with conspiring to organize a Communist Party to advocate violent overthrow of the government. The trial in federal court in New York took more than 9 months and produced 16,000 pages of transcript.
The Dennis v. United States (1951) defendants wanted the U.S. Supreme Court to use the “clear and present danger” test, and the Court, in contradiction to the deference it paid to the legislature in the Gitlow v. United States (1925) case, did apply the test. But applying the test ultimately made no difference for the defendants. The Court upheld their convictions. As a matter of fact, the U.S. Supreme Court only reversed convictions in one case using the “clear and present danger” test—three Jehovah’s Witnesses in the case of Taylor v. Mississippi (1943). The Jehovah’s Witnesses had been convicted under a Mississippi sedition law for publicly urging people not to support World War II and for urging people not to salute the flag. National security won out over freedom of speech every other time.
After saying in Dennis v. United States (1951) that “we are squarely presented with the application of the ‘clear and present danger’ test,” the Court said that it “must decide what that phrase imports.” But first, the Court said what “clear and present danger” does not mean: It does not mean that “probability of success is the criterion” or that “before the Government may act, it must wait until the putsch [the overthrow] is about to be executed.” The Court decided to adopt the view of Judge Learned Hand, a brilliant federal judge from New York. This is Hand’s interpretation of “clear and present danger”: “In each case, [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”
This definition can be converted to the following formula:
Gravity – Improbability = Invasion of free speech.
On one side of the equation is the gravity of the evil, discounted by its improbability. On the other side is the amount of invasion of free speech necessary to avoid the danger. The greater the gravity of the evil and the lower the improbability (meaning the higher the probability), the greater the invasion of free speech that a court will allow. If the gravity of the evil is not that great and the improbability is high, the invasion of free speech cannot be that great. In short,
High gravity and low improbability = A high degree of
invasion of speech,
Low gravity and high improbability = A low degree of
invasion of speech.
In the Dennis v. United States (1951) case, the Supreme Court found that a highly organized conspiracy created danger that justified the convictions. Although Holmes was no longer a member of the Court, dissents were blistering. For example, Justice Hugo Black protested that the First Amendment had been watered down until it would not protect anything but “safe” ideas that did not need protection in the first place. He wanted tougher judicial review of legislation. Chief Justice Douglas, also dissenting, said that he would uphold the convictions if Dennis and his friends were teaching, say, how to plant bombs or assassinate the president, but they were just teaching “Marxist-Leninist doctrine.” He saw no clear and present danger. Douglas used words that the Court would see again—but in a majority opinion. He said, “Free speech—the glory of our system of government—[should] not be sacrificed on anything less than plain and objective proof of danger that the evil advocated is imminent.”
Because the Supreme Court upheld the convictions in Dennis v. United States (1951), the U.S. government continued to prosecute Communists under the Smith Act. The Supreme Court did not agree to review any of these cases until it accepted the case of Yates v. United States (1957). In Yates v. United States (1957), the Court overturned the convictions of 14 people. The Court did not rely on the “clear and present danger” test, however. Yates v. United States (1957) held that the Smith Act does not prohibit “advocacy and teaching of forcible overthrow as an abstract principle.” The Court determined that “it is only advocacy of forcible action that is proscribed.” Still, Yates v. United States (1957) does not say that the action advocated has to be imminent or probable.
Four years later in another Smith Act case, Scales v. United States (1961), the Supreme Court stated, “[Communist] Party leaders were continuously preaching … the inevitability of eventual forcible overthrow” of the U.S. government and that this “systematic preaching” constituted “advocacy of action.” The Court opined that advocacy of future violent action is just as punishable as advocacy ofimmediate action. Justices Black and Douglas again dissented, joined by Justice Brennan. Eight years later, a Court majority accepted the dissenters’ point of view.
The case enunciating the modern doctrine of incitement is Brandenburg v. Ohio (1969). Brandenburg, the red-robed leader of a Ku Klux Klan group, had invited a Cincinnati television reporter to a rally. The reporter also brought a cameraman to the rally, which included a flag burning and oratory by Brandenburg: “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” After the televising of the rally, Brandenburg was convicted, under an old Ohio statute passed in 1919, for “advocat[ing] … crime, sabotage, violence, or unlawful methods of terrorism [are there any lawful methods of terrorism?] as a means of accomplishing industrial or political reform.”
The Supreme Court overruled Brandenburg’s conviction, saying, “Constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions [italics added].” This Bradenburg test contains a subjective part (advocacy must be “directed to inciting or producing imminent lawless action”) and an objective part (advocacy must be “likely to incite or produce such actions”). Or the Brandenburg v. Ohio (1969) test may be viewed as a three-part test requiring (1) intent, (2) imminence, and (3) likelihood.
After all the flip-flops in its reasoning, after all the upholding of convictions, the U.S. Supreme Court had finally landed on an incitement doctrine that would protect freedom of expression. The Court had tempered sedition as a threat. Only direct incitement could lead to the slamming of prison doors.
Prior Restraint: Gangsters and Good Law
Unlike the sedition cases, where the Supreme Court flailed for 52 years, the Supreme Court got prior restraint right the first time. In Near v. Minnesota (1931), the Court set the standard that it has consistently maintained through the years. Like Brandenburg v. Ohio (1969), Near v. Minnesota (1931) was a 5-to-4 decision.
The historical context of a case can often provide indicators of the policy the High Court would want to pursue. As for the context of Near v. Minnesota (1931), World War I had ended, the stock market had crashed in 1929, and Prohibition was in full swing, and along with Prohibition came bootlegging, gangsters such as Al Capone and Bugs Malone, and public officials on the take. In Minneapolis, a man by the name of Jay Near and his partner were busy starting a paper called The Saturday Press. They published that the Minneapolis government had connections to local gangsters, including an allegation that the local police chief was in cahoots with gangsters. After the first issue, gangsters shot but did not kill Near’s partner. Near wrote that the prosecuting attorney was not doing enough to clean up the situation. Unsurprisingly, this allegation angered the prosecutor.
A Minnesota statute permitted abatement, or elimination, as a nuisance of any “malicious, scandalous and defamatory newspaper” or other periodical. The prosecutor used the statute against Near and his partner, and The Saturday Press was perpetually enjoined from publishing.
On appeal, the U.S. Supreme Court said that the question presented was whether the restraint of publication authorized by the statute was consistent with liberty of the press. Answering “no,” the Court spoke of the Constitutional guarantee of freedom of the press: “It has been generally, if not universally, considered that it is the chief purpose of the guaranty (of freedom of the press) to prevent previous restraint upon publication.” The Court also used another term for “previous restraint” or “prior restraint”—censorship.
In striking down the Minnesota statute, the Court used the Fourteenth Amendment, saying, “It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.” Still, the Court rejected the notion that there could be no prior restraint. Instead, the Court made clear that prior restraint could occur but only in the following four “exceptional cases”: obstruction of military recruitment; publishing sailing dates, the number, or location of troops; obscenity; and incitements to violent overthrow of government. In 1976, in Nebraska Press Association v. Stuart (1976), the Court would add a fifth exceptional case: prior restraint to protect a criminal defendant’s right to a fair trial.
Note that the Court did not list cases involving malfeasance of public officers, and that is what the Court thought this case was about—trying to use prior restraint of a publication dealing with alleged malfeasance of the prosecutor, a public officer. For roughly 150 years, according to the Court, there had been almost no attempts at prior restraint of publications dealing with malfeasance of public officers, and this fact is “significant of the deep-seated conviction that such restraints would violate constitutional right.”
In short, the “character and conduct” of public officers “remain open to debate and free discussion in the press,” the Court said. Far from restraining the press, the Court even gave the press a pep talk. After all, it was the days of the Great Depression, Prohibition, and gangsters, and some public officials undoubtedly were on the gangsters’ payrolls. The Court said,
The administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities.
But what if a newspaper makes false accusations? The public officer will have to use the libel laws, the Court said.
In 1971, the Supreme Court followed Near v. Minnesota (1931) and ruled against the U.S. government when the Justice Department tried to stop The New York Times and The Washington Post from publishing stories about the Pentagon Papers. Demonstrating the importance the Supreme Court places on attempts to shut down the press, the Court heard the arguments for the case on June 26, only 13 days after the first story ran in The New York Times. Four days later, the Court issued its decision in the Pentagon Papers case, New York Times Co. v. United States (1971), saying, “Any system of prior restraint of expression comes to this Court bearing a heavy presumption against its constitutional validity.” The federal government had simply failed to carry its burden of proof that stories based on the Pentagon Papers would cause irreparable harm to U.S. defense interests. So while the conflict in Vietnam raged on, the presses rolled, criticizing U.S. entry into that divisive, undeclared war.
Libel: The Supreme Court Starts a Revolution
But even if the Supreme Court is protecting freedom of expression from government interference in the areas of sedition and prior restraint, that is insufficient if civil suits—suits brought by private individuals or corporations—threaten the vitality of the media. Libel had become a serious threat to media vigor.
Granted, society has a strong interest in protecting peoples’ reputations. According to U.S. Supreme Court Justice Potter Stewart in his concurring opinion in Rosenblatt v. Baer (1966), this protection “reflects no more than our basic concept of the essential dignity and worth of every human being.” But freedom of speech also needs protection, of course.
Before 1964, the balance between protecting reputations and protecting speech tilted sharply in favor of protecting reputations. Three doctrines, an unholy triumvirate for the press, made winning a libel suit easy for the plaintiff: These were strict liability, presumed damages, and the burden of proof on the defendant. Under strict liability, the only question for the press was “Are those your words?” The question of how careful or not a reporter had been did not arise. The plaintiff did not have to prove that he or she in fact suffered damages because courts assumed that damages had occurred, and the defendant had either to prove the truth of the statements in question or suffer loss of the case. Libel law, in other words, was stacked against the press. Of course, the upside was that the press would perhaps be more careful. But perhaps the press would also be intimidated.
In its landmark case New York Times Co. v. Sullivan (1964), the Supreme Court for the first time assessed the libel situation, and the revolution of U.S. libel law began. Successful libel cases were having a chilling effect, the Court found, and a timid press is inconsistent with democracy. So the Court set out to unthaw public debate on public issues, by making it much more difficult for public officials to win libel suits. Justice William Brennan wrote the decision. He said, “We consider this 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.”
New York Times Co. v. Sullivan (1964) posed the question of whether the First Amendment permitted a law of libel. The Court then took a halfway position. It did not say that libel law was unconstitutional, but it said that the way states were handling libel law was unconstitutional. The Court reversed Sullivan’s win. The Supreme Court held that the Alabama view of libel was constitutionally deficient. Alabama failed to provide the safeguards for freedom of speech and press required by the First and the Fourteenth Amendments of the U.S. Constitution. The Court declared that a public official who claims to have been libeled can only win if he or she jumps high legal hurdles. The public official must prove, with clear and convincing evidence, that the defendant newspaper or broadcaster acted with “actual malice,” that is, with “knowledge that a statement is false, or reckless disregard of whether it is was true or false.” In other words, the official had to prove that the defendant either knew that what he or she said was false or at least entertained some serious doubts about whether it was true or false. Furthermore, the public official had to prove that the statements caused him or her to suffer damages. And the public official had the burden of proof to prove that the allegedly libelous statements were in fact false. In short, the unholy triumvirate of strict liability, presumed damages, and burden of proof on the defendant was now dead.
The alleged libel of Sullivan, the commissioner who supervised the Montgomery police, occurred in an editorial advertisement, “Heed Their Rising Voices.” It was a full-page ad with 10 paragraphs of political speech taken out by a civil liberties group dedicated to the struggle for equality by African Americans. Sixty-four persons’ signatures appeared under the ad, including those of a number of celebrities. The ad began by saying,
As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread, nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.
But the ad said that these nonviolent demonstrations were being met
by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom.
The ad contained some errors. For example, it said, “In Montgomery, Alabama, after students sang ‘My Country, Tis of Thee’ on the State Capitol steps, their leaders were expelled from school and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus.” The students instead sang the National Anthem, and the police did not “ring” the campus.
The Supreme Court said that the ad did not forfeit its First Amendment protection because some of its statements were false or because they were allegedly defamatory. “Neither factual error nor defamatory content remove the constitutional shield from criticism of official conduct.” Talking about the need for “breathing space,” the Court said, “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.” The court pointed out that the $500,000 civil judgment in Sullivan was 1,000 times greater than the maximum fine provided by Alabama’s criminal libel statute and 100 times greater than the maximum fine under the Sedition Act of 1798. The Court said that even if newspapers could survive financially, “the pall of fear and timidity” would create “an atmosphere in which the First Amendment freedoms cannot survive.”
As for requiring the defendant to prove the truth, the Court said that it leads to self-censorship. Having to prove truth deters criticism because the critic, even if the critic knows that something is true, might doubt whether he or she could prove it in court or might fear the expense of having to prove it in court.
The most revolutionary statement concerning constitutional restraints in libel cases is this:
The constitutional guarantees require … a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—this is, with knowledge that it was false or with reckless disregard of whether it was false or not.
There were no dissents in the New York Times Co. v. Sullivan (1964) case. Three justices, Black, Douglas, and Goldberg, wrote concurring opinions saying that they would have gone even further than the rest of the Court by recognizing an absolute right to publish criticisms of public officials. Had the court gone as far as these three, then public officials would have been precluded under the Constitution from bringing libel suits concerning their official conduct.
In 1966, the Supreme Court extended the New York Times Co. v. Sullivan (1964) rule of actual malice to nonelected public officials and to former public officers when there is still public interest in a matter (Rosenblatt v. Baer, 1966). The following year, 1967, the Court extended this doctrine of actual malice to public figures (Curtis Publishing Co. v. Butts and Associated Press v. Walker, 1967).
As for who qualifies as a public figure, the Court explained in Gertz v. Robert Welch, Inc. (1974) that “in some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” Famous entertainers, athletes, or other persons whose names almost everybody recognizes are public figures for all areas of their lives and thus must always prove actual malice to win a libel case. “More commonly,” the Court says, “an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.”
In Gertz v. Robert Welch, Inc. (1974), the Court applies a different rule than actual malice for these private persons for two main reasons. First, “Public officials and public figures usually enjoy significantly greater access” to the media. Thus, they have a greater opportunity to “counteract false statements” than do private individuals. They can engage in “self-help,” as the Court calls it. But private individuals are “more vulnerable to injury, and the state interest in protecting them is correspondingly greater.” Second and more important, the Court says, is a moral consideration at the base of this distinction between public and private plaintiffs: “An individual who decides to seek governmental office must accept certain necessary consequences,” and running the “risk of closer public scrutiny” is one of them. “The media,” according to the Court, “are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehoods.” But “no such assumption is justified with respect to a private individual.” In short, the Court says, “Private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.” Therefore, in Gertz v. Robert Welch, Inc. (1974), the Court held that states could “define for themselves the appropriate standard of liability for a publisher or broadcaster” who defames a private individual, “so long as the states do not impose liability without fault.” Negligence, or not using the degree of care that a reasonable person in similar circumstances would use, is thus an acceptable standard of proof for private individuals. But even private individuals who seek punitive damages must prove actual malice. The Court in Gertz v. Robert Welch, Inc. (1974) defines punitive damages as “private fines … to punish reprehensible conduct and to deter its future occurrence.”
The revolution in libel law ended in 1974. The Court continued to struggle with the sometimes fuzzy lines of who constitutes a public figure, but the basics of libel law were in place. The Court had gutted the old law of libel and left in its place a law of libel that sometimes made recovery of damages impossible even for persons who the media had intentionally wronged: “Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test,” the Court had admitted in Gertz v. Robert Welch, Inc. (1974). Perhaps the pendulum had swung too far in favor of protecting the press, but the Court was expressing the importance of the press to a democratic society—“the primary need of a vigilant and courageous press” that the Court had emphasized in Near v. Minnesota (1931).
In 1988, in Hustler Magazine v. Falwell (1988), the Court emphasized the importance of protecting the press even when it printed material designed to hurt feelings, especially political cartoons: “The appeal of the political cartoon or caricature is often based on exploration of unfortunate physical traits or politically embarrassing events—an exploration often calculated to injure the feelings of the subject of the portrayal.” Indeed, history, according to the Court, is on the side of caustic cartoons: “From the early cartoon portraying George Washington as an ass down to the present day, graphical depictions and satirical cartoons have played a prominent role in public and political debate.”
In libel, as well as in prior restraint, the Court had gone directly to protecting freedom of expression. The Court had not spun its wheels, grinding up defendants, as it had in sedition cases.
Sedition, the crime of criticizing government or its officials, laws, or institutions, took its toll on freedom of expression while the Supreme Court floundered. Many years were wasted in prison by persons convicted for “crimes” such as criticizing the draft or opposing the making of ammunitions and war. Arguably, the United States did not get true freedom of political expression until 1969 and the Brandenburg v. Ohio (1969) decision, which said, “Constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions.”
But the Supreme Court got it right the first time when asked whether a publication could be shut down for criticizing a public official for alleged malfeasance in office. In 1931, the High Court in Near v. Minnesota (1931) declared, “It has been generally, if not universally, considered that it is the chief purpose of the guaranty (of freedom of the press) to prevent previous restraint upon publication.” And the Supreme Court took it upon itself to revolutionize libel law in 1964, ruling that public officials could only win libel cases if they could prove by clear and convincing evidence that the defendant acted with “actual malice”—with “knowledge that a statement is false, or reckless disregard of whether it is was true or false.”
Although the Supreme Court is the ultimate authority on freedom of expression in the United States, perhaps one of the best statements regarding the importance of freedom of expression came from a New York trial judge in the Pentagon Papers case. Judge Murray Gurfein, in United States v. New York Times Co. (1971), wrote,
There is no greater safety valve for discontent and cynicism about the affairs of Government than freedom of expression in any form. This has been the genius of our institutions throughout our history. It is one of the marked traits of our national life that distinguish us from other nations under different forms of government.