On March 29, 1960, The New York Times published a full-page advocacy ad that aired very legitimate civil rights grievances — but aspects of the ad’s most condemning accusations were false, untrue and, arguably, reputation-damaging. The newspaper was judged liable for libel by a jury, a trial judge, and the Supreme Court of Alabama.
Had L.B. Sullivan’s libel lawsuit not been presented so persuasively at trial and so effectively in refuting The Times’ arguments to the Supreme Court of Alabama, the case would not have been reviewed by the U.S. Supreme Court. That 1964 review obliged the court to make law — fashion a standard, craft a leeway, a jurisprudential “out” or “escape” — in order to overcome the 1960 inattentions, irresponsibility, lawyerly evasions, and institutional intransigence of The New York Times.
The 50th anniversary of the U. S. Supreme Court’s landmark 1964 libel law ruling in New York Times v. Sullivan has occasioned tributes to the author of the decision, Justice William J. Brennan Jr. There have also been accolades for Herbert Wechsler, the constitutional law scholar and Columbia Law School professor whose brief and oral argument on behalf of The Times were surely influential.
But what about the lawyer who represented libel plaintiff L. B. Sullivan from 1960 through 1964?
M. Roland Nachman Jr. graduated from Harvard College in 1944 and from Harvard Law School in 1948. He chose to return to Montgomery, Ala., to serve civic interests and civil liberties — where he could have the most influence confronting a range of stereotypes and prejudices.
Ironically, his advocacies on behalf of L. B. Sullivan (the Commissioner of Public Safety in Montgomery, Ala.) were so successful that The Times felt compelled to petition the U.S. Supreme Court for review and reversal. Nachman’s advocacies were so successful at trial and so successful again on review by the Supreme Court of Alabama that the U.S. Supreme Court had to come up with a ruling to expand protections for publishers’ negligence. Nachman’s handling of the reversal and remand are instructive.
In his private correspondence, beginning in the decade after the decision, Nachman allowed that Brennan’s opinion was — as a general proposition — commendable. Yes, a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Even with that, the questions put to Nachman at the 1964 oral argument did seem to veer into the realm of activism — a 1964 political-correctness. The court’s ruling did seem to adopt that stance for the ruling declared that a particular advocacy ad – which was admittedly inaccurate in relevant parts – should be viewed as “an expression of grievance and protest on one of the major public issues of our time.” And thus, so characterized, the ad — in the high court’s estimation — qualified for constitutional protection.
Brennan did indeed take up the question of whether the ad forfeited that protection “by the falsity of some of its factual statements and by its alleged defamation of respondent.”
The “out” — the leeway, the escape from liability for libel — was provided: “… erroneous 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.”
So, erroneous statements that are made honestly — or made without intentional vicious dishonesty — have to be tolerated and absorbed. To rule otherwise, the court reasoned, would require the publishers to impose on reporters, columnists, and editors an intolerable self-censorship.
One might well imagine Sullivan’s and Nachman’s disappointment and dissatisfaction with the U. S. Supreme Court’s reversal — and its dismissal of the evidence of ill will and contempt on the part of The Times. Not surprisingly, many law school faculty and law review editors sought comments from Nachman along with copies of his various briefs. Nachman’s replies tell a rather commendable story of grace and humility following disappointment.
In response to a series of inquiries and requests from a Professor of Law at the University of Tennessee College of Law (who was also the faculty adviser to the school’s law review), Nachman wrote: “What the Supreme Court means by ‘actual malice’ is difficult to determine if one has a knowledge of this record, since in our view the facts show a recklessness in the extreme, plus a retraction for one public official of the same material and a failure to retract on demand of Sullivan — a failure even after
actual knowledge of the falsity of the material. Moreover, there was no plea of truth and the attorney for The New York Times suggested repeatedly in open court that the defamatory matter was not true and would not be believed.
“Finally, The New York Times did not plead ‘fair comment’ or ‘privilege’ and, according to the usual standards of appellate review, raised only an academic question of constitutional adequacy of the Alabama (and majority) defenses of truth and fair comment.”
Nachman admitted that his reply would “surely appear to reflect the frustrations of a disappointed litigant.” But he opened the letter — along with dozens of others he took the trouble to write — with an apology for only being able to enclose his brief in opposition to certiorari, along with the opinion of the Supreme Court of Alabama, because he had run out of copies of his brief for oral argument.
In his 90th year, Roland Nachman’s daughters wonder what he would have to say about some of the PAC ads and judgmental news reports (exhortations and excoriations) that are now aired on TV and radio, and command space in newspapers and via the web. With great affection, they recall his epilogue to his big libel case: “I wish I’d been known for a case I’d won instead of lost.”
His victories in Alabama on behalf of Sullivan did not prevail, but his advocacies forced the Supreme Court to provide special leeway for the press to subject office-holders and office-seekers to public scrutiny and accountability. Most assuredly, that “actual malice” standard, on balance, was and is a good one, a sensible and rational one: “The constitutional guarantees require, we think, 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’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
The Times got it wrong initially, and persisted in declining to retract, correct, or apologize. The Supreme Court managed to make it right. Bad facts, good law. •
Joseph H. Cooper was editorial counsel at The New Yorker from 1976 to 1996. He now teaches ethics and media law courses at Quinnipiac University. His “Pauses and Moments” stories appear at PsychologyToday.com as “Rumblings from the lane next to the off ramp.”