The cops behind what was called “an unprecedented wave of terror” against black college students were not named in the ad; Sullivan, in particular, went unmentioned. But the mere insinuation that an elected official from Montgomery County might have done something heavy-handed was enough for Sullivan to sue. His reputation, he claimed, was severely damaged.
He won a local jury verdict of $500,000, no small sum in those days, and the Alabama Supreme Court upheld the result. It was part of a pattern across the South: the enforcers of Jim Crow racism using the courts to stifle and frighten voices of opposition. Now, the Times had been put on notice.
Well before there was a president who labeled the press “Enemy of the People” and urged lawmakers to make it harder for watchdogs of the powerful to do their jobs, one of the biggest threats to free expression was the law—specifically, libel law, and how the courts viewed it. The American founders specifically prohibited Congress from making any law “abridging the freedom of speech, or of the press.” They couldn’t have been blunter in the first and the broadest of the liberties given to the people in the Bill of Rights. This was a reaction to the tyranny of the British, who had shut down colonial newspapers at whim and had stringent laws protecting public figures from criticism.
But how the First Amendment protections came to be interpreted was another matter. Over the past two centuries, through the years of a partisan hack press, to the yellow journalism phase, to the more modern attempts at professional objectivity of the twentieth century, courts had given more sway to people who said they were defamed to go after the press.
Times v. Sullivan changed everything. In a unanimous decision in 1964, the Supreme Court overturned the earlier state court verdict against the paper and opened the way for robust and free-ranging reporting and discussion of public officials. It was a deliberate—critics said overreaching—decision by the court to free journalists. Justice William Brennan, in his written opinion, said use of the courts to shut down criticism was clearly at odds with the essence of the First Amendment.
The Court made it very hard for public figures to win a libel case. It established a tough new standard: the plaintiff had to prove that a newspaper, or any other press outlet, knew that what it was reporting was false, defined as “actual malice,” or “reckless disregard” for the truth. So in Sullivan, some of the things claimed in the ad had in fact been false. But the paper didn’t know it at the time, staffers said. The Court held that “erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have ‘breathing space.’ ” All of this was applied to public figures, not average citizens, for whom the standard of proof is lower. The Court cited the view of Justice William O. Douglas from one of his lectures. “Where public matters are involved,” he wrote, “the doubts should be resolved in favor of freedom of expression rather than against it.”
The decision had a ripple effect, touching just about every aspect of free speech, from comments at town hall meetings to satirists working their trade in now-defunct magazines like National Lampoon.
A lone blogger, laboring in a kitchen cubby to shed light on a nefarious public figure, has the same protection of Times v. Sullivan. If, say, a small-town sheriff didn’t like the things that a country editor or a local radio station was saying about him, he would have to surpass the new legal standards to win a case.
Scholars say the case was one of the most important free speech decisions of the twentieth century. “There are few Supreme Court decisions that are so closely intertwined with the values that define America and epitomize our rights of self-expression and rights to create, express ourselves and critique our leaders,” wrote Roy S. Gutterman, a free speech expert, in an essay in Forbes Opinion.
The Watergate reporting that brought down President Nixon might never have happened had the Washington Post not had the freedom given them barely a decade earlier in Times v. Sullivan. Nixon’s attorney general, John N. Mitchell, had famously threatened the Post’s owner, Katharine Graham, in a call to reporter Carl Bernstein. “All that crap you’re putting in the paper?” said Mitchell, as both Graham and Bernstein later recalled in their books. “It’s all been denied. Katie Graham’s going to get her tit caught in a big fat wringer if that’s published.” It was published. And Mitchell later served nineteen months in prison for multiple Watergate crimes.
In the Watergate era, journalism was a settled profession, with rules of conduct followed by most practitioners. Now, who’s to say who’s a journalist? Is the conspiracy theorist Alex Jones, a man who has questioned the slaughter of children by a gunman? In 2018, Jones was sued for defamation by several parents of children killed in the 2012 mass shooting at Sandy Hook Elementary School. After Jones posted videos alleging that the massacre was faked as an attempt to promote gun control, the parents said they had been harassed and forced to move.
Jones claimed that he was no different from Woodward and Bernstein. But it seems a stretch to say that the smearing of innocents by a man whose stock-in-trade is bogus conspiracy theories is what the justices were trying to protect when they decided the case. The parents also do not appear to be public figures, which may be one reason that case proceeded past its initial phase. People with no experience in the public eye only have to prove that what was said about them was false and that they suffered as a result.
The Court did not intend for their 1964 decision to protect the powerful; their goal was to make it harder for the powerful to harass individuals. Because of Times v. Sullivan, the United States is a fortress of free speech. It’s much easier to win a libel case in Britain, which puts the burden of proof on those being sued. English law has stifled some of the most brisk public debates—and, yes, mockery—that are common in the United States. But there’s no guarantee the judiciary will always be a friend of the press. In cases regarding national security and sources leaking official secrets, the courts have been leaning the other way. More troubling, Justice Clarence Thomas recently called for a reconsideration of Times v. Sullivan, reversing a half-century of press protection by the High Court. “We should reconsider our jurisprudence in this area,” he wrote, criticizing the landmark case as “legal alchemy.”
In his disdain of the landscape that developed after Times v. Sullivan, Thomas was echoing Donald Trump, though his view doesn’t appear to have the backing of a majority of the Court today. As president, Trump is no longer suing comedians for making fun of him. But he has repeatedly called for making it more difficult for people to criticize him.
“I would love to see our libel laws get toughened up so you can take people and sue them,” he says. No other leader of the free world has been such an open foe of a free press. At rallies, the president often points to reporters, setting them up for jeers, derisive chants, and occasional assaults from his supporters.
Libel laws can’t be changed by legislative whim or an executive order from a president in a temper tantrum. For now, the protections of free speech are settled law, based on the ringing affirmation written into the Constitution, and boosted by cases like Times v. Sullivan. For now.
LAMONT V. POSTMASTER GENERAL (1965) (amicus)
In Lamont, the Court struck down a statute that required recipients of materials deemed to be “Communist political propaganda,” like periodicals and magazines, to submit a request in writing on a special reply card in order to have that mail delivered to them. Corliss Lamont, a professor of philosophy, former chair of the Friends of the Soviet Union, and a member of the board of directors of the ACLU, filed suit. The Supreme Court’s decision in Lamont’s favor was unanimous. In an influential concurrence, Justice William Brennan wrote, “The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”
Your Mail Belongs to Us
YIYUN LI
I grew up in a Soviet-style apartment block in Beijing i
n the 1970s, and our ground-floor unit was right next to the green mailbox for the building. Twice a day, the postman put letters and newspapers in the box with a dangling door, and the moment I learned how to read, I started to peruse the newspapers before the legal subscribers arrived and checked out the postcards and letters coming into the unlocked box.
The postcards, drab colored with the official post office signs, were sent not by people on holiday, but by those who wanted to show the world that they hid nothing in their correspondence. And one’d be better off, in my country and at that time, not to have any secret.
Letters arrived, of course. The envelopes offered limited information: names of recipients and senders, the value of the stamps, penmanship that was a good indication of the educational level of the senders. I paid extra attention to the stamps: an eight fen stamp meant the letter was sent from out of town; a four fen, however, meant the letter was sent from the same town, which was of great interest to me. It did not happen often that a person would send a letter to another person living in the same town. There was no telephone, but there was plenty of time for anyone to drop by at another person’s place. I had a detective’s mind then, treating those letters with four fen stamps with suspicion. (Later, I would understand that those letters were often written from a young person to his or her lover. When I came to that understanding, I liked to pinch the envelopes to feel the thickness of the letters.)
A sealed letter was an impediment for me to get to know a few things about our neighbors, but I was a law-abiding child. The only letters I stole and read were to my parents and my grandfather, who lived with us. An open envelope was too much of a seduction.
Then one day a letter came to my father, written in a foreign language instead of Chinese characters, with a stamp of a foreign woman’s face, sent from England, as my father explained to us. He worked as a nuclear physicist, but his own interest was in quantum physics. The story was that he spent his spare time thinking through a problem in the field and writing to a foreign physics journal. His letter got into print. The English scientist disagreed with my father’s approach and sent a letter to discuss their difference.
My father was wise enough to use our home address for his correspondence with the journal. But a letter from abroad was a sight for all the neighbors, and there was, as the old saying went, no wall in the world that does not have a crack for a sniff of air to go through. My father was summoned by his work unit to explain the letter. He got a warning of some sort. Soon after, he applied to transfer to a research institute of quantum physics that had nothing to do with nuclear weapons. For a while, the transfer seemed certain, and he seemed cheerful, but all of a sudden, everything changed and he was assigned to a place called the Institute of Marxist Dialectical Materialism. It was one of the many reasons that my father was not a happy man for the rest of his life. Instead of doing research he loved, his job there was closer to a clerk’s.
An epistle from abroad spelled danger, but that did not happen only in communist China. In the United States, as mandated by Postal Service and Federal Employees Salary Act of 1962:
Mail matter, except sealed letters, which originates or which is printed or otherwise prepared in a foreign country and which is determined by the Secretary of the Treasury pursuant to rules and regulations to be promulgated by him to be “communist political propaganda,” shall be detained by the Postmaster General upon its arrival for delivery in the United States, or upon its subsequent deposit in the United States domestic mails, and the addressee shall be notified that such matter has been received and will be delivered only upon the addressee’s request, except that such detention shall not be required in the case of any matter which is furnished pursuant to subscription or which is otherwise ascertained by the Postmaster General to be desired by the addressee.
In 1963, the post office retained a copy of Peking Review, addressed to Dr. Corliss Lamont, a director of the ACLU for twenty-two years. (Peking Review, established in 1958 by the Chinese government and published in five languages, was a tool for the Chinese government to communicate with the rest of the world in the Cold War era. History, on both sides of the Iron Curtain, was not isolated.)
Lamont did not respond to the notice of detention sent to him but instead instituted this suit to enjoin enforcement of the statute, alleging that it infringed his rights under the First and Fifth Amendments. The Post Office thereupon notified Lamont that it considered his institution of the suit to be an expression of his desire to receive “communist political propaganda” and therefore none of his mail would be detained. Lamont amended his complaint to challenge on constitutional grounds the placement of his name on the list of those desiring to receive “communist political propaganda.”
In 1965, Lamont won a suit against the US postmaster general for violating his First Amendment rights by opening and withholding his mail. The Supreme Court held the Postal Service and Federal Employees Salary Act of 1962 to be unconstitutional:
The Act sets administrative officials astride the flow of mail to inspect it, appraise it, write the addressee about it, and await a response before dispatching the mail.… We rest on the narrow ground that the addressee in order to receive his mail must request in writing that it be delivered. This amounts in our judgment to an unconstitutional abridgment of the addressee’s First Amendment rights. The addressee carries an affirmative obligation which we do not think the Government may impose on him. This requirement is almost certain to have a deterrent effect, especially as respects those who have sensitive positions. Their livelihood may be dependent on a security clearance. Public officials, like schoolteachers who have no tenure, might think they would invite disaster if they read what the Federal Government says contains the seeds of treason. Apart from them, any addressee is likely to feel some inhibition in sending for literature which federal officials have condemned as “communist political propaganda.”
The Cold War ended. The Iron Curtain, lifted, was placed into the museum. We have long moved onto digital forms with our communication. But are we better off now? When I travel back to China, I cannot get access to my Gmail, Google, and the New York Times website, all of them blocked in China. But more than that, I cannot get a cell phone number in China as an American citizen because all cell phone numbers in China are directly logged in along with citizens’ ID numbers. It is not a secret that all things that happen digitally in China are supervised and censored by the government. But the danger, one must assume, is not far from us in America either. The US Border Control is increasingly using questionable authority to search the cell phones of passengers arriving in America. In May 2018, US District Judge Denise Casper in Boston ruled that a lawsuit by eleven travelers had raised a plausible claim that such border searches violate the US Constitution’s Fourth Amendment protections against unreasonable searches and seizures. One can, however, see the possibility of such scenarios migrating from the US border into everyday American life. Would it be far-fetched to imagine—as an immigrant, with the history of the internment of Japanese Americans always close to my thoughts—that should the political atmosphere continue as it is under the current administration, that one day we would be required to unlock our cell phones to show that, in our texts and emails, we have not expressed any thoughts of disloyalty?
GRISWOLD V. CONNECTICUT (1965) (amicus)
In November 1961, Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a gynecologist at the Yale School of Medicine, opened a birth control clinic in New Haven, Connecticut. Within ten days, the state closed the clinic and arrested the pair under a Connecticut law enacted in 1879 that forbade the use of “any drug, medicinal article, or instrument for the purpose of preventing contraception.” They were found guilty of prescribing contraceptives and fined one hundred dollars each.
The pair appealed their conviction, and in 1965 the Supreme Court heard their case. The ACLU filed a friend of the court brief on behalf of Griswold and
Buxton, arguing that the contraceptive law violated a constitutional right to privacy. The Supreme Court agreed with the ACLU’s argument, and held, for the first time, that the Constitution guarantees people a marital right to privacy, and declared the Connecticut law unconstitutional as it applied to married couples.
The landmark right to privacy established in Griswold would be cited in a number of other important cases concerning the right to control one’s personal life, including Roe v. Wade (1973), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015).
Protection
MEG WOLITZER
Mary McCarthy’s 1963 novel The Group, which takes place in the 1930s, includes a scene in which recent Vassar graduate Dottie Renfrew loses her virginity to a divorced painter, Dick Brown. Afterward, he instructs her, “Get yourself a pessary,” and when she misunderstands, he clarifies that she should go to a “lady doctor” and obtain “a female contraceptive, a plug.”
Philip Roth’s first-person 1959 novella, Goodbye, Columbus, details the sexual relationship between Neil Klugman, twenty-three and a clerk at the Newark Public Library, and Brenda Patimkin, a privileged and beautiful student at Radcliffe.
“Brenda, I want to ask you something.… I know this is out of the blue, though really it’s not.… I want you to buy a diaphragm. To go to a doctor and get one.”
…
“You just want me to own one, is that it? Like a walking stick, or a pith helmet—”
“Brenda, I want you to own one for… for the sake of pleasure.”
“Pleasure? Whose?”
“Mine,” I said.
As a novelist, I looked to these works to get a sense of the prevailing culture in the years leading up to the 1965 Supreme Court case, Griswold v. Connecticut. The case concerned one of the Comstock laws that hailed from the Grant administration, calling for the “Suppression of Trade in, and Circulation of, Objects of Literature and Articles of Immoral Use.” Clearly, readers of fiction in the late fifties and early sixties were sophisticated about sex and contraception, which peppered the literary landscape, but Connecticut during that era was still, at least legally, on contraceptive lockdown.
Fight of the Century Page 9
