How Could He Possibly Lose? On Samantha Barbas’s “Actual Malice”

“OUTSIDE AGITATOR!” “Commie!” “Lying Northern newsman!” These epithets were spewed at a New York Times reporter covering the violence that erupted when the University of Alabama was integrated in 1956. The Times had started covering the Civil Rights Movement a decade earlier and was the first national news outlet with a Southern bureau (although it did not hire a Black reporter until 1966). But the Times would pay a heavy price for becoming what Samantha Barbas—in her compelling new book Actual Malice: Civil Rights and Freedom of the Press in “New York Times v. Sullivan”—calls “America’s conscience on civil rights.” Barbas vividly describes how “[s]egregationist officials […] weaponize[d] libel law against their critics” to such an extent that the “fate of the New York Times, the nation’s press, and the civil rights movement hung in the balance.”

Barbas, a professor of law at the University at Buffalo, has written six other books, including several on the history of mass media law, such as The Rise and Fall of Morris Ernst, Free Speech Renegade (2021) and Newsworthy: The Supreme Court Battle over Privacy and Press Freedom (2017). In Actual Malice, she brings to life the reporters, newspaper executives, civil rights leaders, government officials, lawyers, and judges who are central to the events leading to the landmark Supreme Court decision in New York Times v. Sullivan. And she’s adept at explaining legal and constitutional issues regarding libel and the First Amendment in a highly readable and accessible manner.

While Sullivan is widely considered “one of the most important free speech decisions of all time,” Barbas convincingly shows that it “was as much about civil rights and the civil rights movement as it was about freedom of speech and press.” The book comes at a critical time when, as Barbas notes, the constitutional protections afforded by Sullivan “may be in peril.”

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In February 1960, the emerging sit-in movement reached Montgomery, Alabama—the “Cradle of the Confederacy.” As Barbas explains,

Thirty-five male students from the local black college, Alabama State College, marched into the [segregated] snack bar in the basement of the Montgomery courthouse and asked to order coffee. […] Staff cut the lights and herded the students into the hallway. Police arrived and padlocked the grill.

Barbas recounts how “Public Affairs Commissioner L.B. Sullivan, in charge of the [Montgomery Police Department], went on television to threaten the ‘agitators.’ ‘We do not intend to permit outside forces to create, provoke, or otherwise incite any racial incident here in our city.’” Sullivan, an associate of the Ku Klux Klan, had been elected to his position with campaign ads reading: “L.B. Sullivan Will Not Back Down on the Southern Traditions of Complete Segregation in Schools, In Parks, On Busses.”

Previously, Georgia officials had filed unfounded criminal charges against Dr. Martin Luther King Jr. for purportedly falsifying his tax returns. In February 1960, King’s supporters formed a committee to raise funds for his defense. Bayard Rustin, an experienced organizer, was appointed executive director. To solicit support, Rustin took out a full-page ad in The New York Times. He and John Murray, a playwright and screenwriter, collaborated on a 10-paragraph ad with the headline “Heed Their Rising Voices,” describing “King’s arrest, the sit-ins in Montgomery and other Southern cities, and the reprisals they generated.” The ad they composed “evoked arresting images of brutality and oppression—an ‘unprecedented wave of terror’ visited on ‘American teenagers’ by ‘Southern violators of the Constitution’”—and “exhort[ed] decent-minded Americans” to contribute “material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious affirmation of our Constitution and the Bill of Rights.”

The ad was emotional and compelling, but unfortunately, as Barbas explains, “it was filled with errors. In their zeal to dramatize the events and to publish the ad in a hurry, Rustin and Murray had, intentionally or unintentionally, taken liberties with the facts.” For example, “[t]he Montgomery ‘police’ came to Alabama State to prevent demonstrations, but they never circled or ‘ringed’ the campus, as the ad alleged.” The student leaders were expelled “not for singing ‘My Country, ’Tis of Thee,’” but for participating in the lunch-counter sit-ins. (And in fact, “The Star-Spangled Banner” was the song the students actually sang). Besides that, “[l]ess than the full student body protested by not re-registering for classes. King had been arrested only four times, not seven. [And] [a]lthough the police did [go to] the Alabama State campus, [their appearance] wasn’t in connection with the protest at the capitol.” The “most serious” error in the ad was “about authorities padlocking the [student] dining hall. [It] wasn’t padlocked, and officials never attempted to ‘starve’ the students ‘into submission.’”

On March 25, 1960, Murray delivered the ad to the Times, with a letter from the committee certifying that all the signers had given consent to use their names. The next day, the ad was sent to the Times’s Advertising Acceptability Department, which was responsible for rejecting ads that were “misleading, inaccurate, and fraudulent.” But no one at the Times fact-checked this ad because the head of the Acceptability Department was “impressed by the high-profile signatories.” The Times’s own files, including “sixteen news stories on the events in Montgomery,” would have revealed the errors.

A few days before the ad was set to run, Rustin decided to add the names of 20 Southern Black ministers to strengthen the plea. There was no time to get the ministers’ permission, but he was sure they would have agreed, given their loyal support for King.

As Barbas notes, the “‘Heed Their Rising Voices’ ad appeared on page 25 of the New York Times on Tuesday, March 29, 1960.” The committee soon began receiving an influx of donations, “generating far more than the $4,800” that the ad cost. “Only 394 copies of [the Times] went to Alabama,” but one copy arrived at the Alabama Journal, which ran a story under the headline “Liberals Appeal for Funds to Defend M.L. King.”

Within days, Sullivan retained M. Roland “Rod” Nachman Jr., a 37-year-old lawyer with experience in libel law. “[B]orn in Montgomery in 1923 to a German Jewish family,” he “was cosmopolitan, Harvard-educated,” and a supporter of Harry Truman’s campaign in 1948, in addition to assisting with the 1956 presidential campaign of Adlai Stevenson. Nachman was bothered by the false statements in the ad, and he thought the case “was almost impossible to lose […] [u]nder existing libel law.” Even though Sullivan was not identified by name, all Nachman had to prove was that the ad was “of and concerning” his client and tended to damage his reputation. “The statements were presumed to be false,” and it would be up to the Times to prove they were true “in all their particulars.”

Nachman immediately sent the Times a demand for retraction, which landed on the desk of Louis Loeb, counsel for the newspaper. When Loeb contacted the managing editor (who in turn contacted a Times stringer in Alabama), he learned that several of the ad’s statements were confirmed to be false. Nonetheless, Loeb defiantly responded to Nachman—“overconfidently, in retrospect,” Barbas points out—refusing to publish any retraction and denying any liability.

On April 19, 1960, “Nachman filed libel suits in the circuit court of Montgomery County against the Times and the four Alabama ministers” whose names had been inserted in the ad. Sullivan sought $500,000 in damages.

Segregationists had discovered a “new weapon” to stifle press coverage of the South’s violent resistance to integration. In short order, at least five more libel suits were filed against the Times seeking millions of dollars in damages. According to Barbas, the flood of litigation posed an “existential threat to the paper.” The Times was “operated […] by the Sulzberger family on a low profit margin and was barely breaking even.” “Never in the history of the Times, and in the history of the American press,” Barbas writes, “had there been a concerted libel attack of the magnitude of Alabama’s, effectively a coordinated official conspiracy intended to undermine and destroy a disfavored newspaper.”

For the next two and a half years, “[a]s a result of the libel suits, reporters for the New York Times would remain out of Alabama, the site of the most contentious events of the civil rights movement, during crucial years of the desegregation struggle.” Before it even went to trial, the case was already abridging the freedom of the press.

The trial began on November 1, 1960, in the courtroom of Judge Walter Burgwyn Jones. The day before, the Sons of the Confederate Veterans had held a ceremony celebrating the centennial year of the Civil War, and “Judge Jones, dressed in nineteenth-century garb, reenacted the swearing-in of Jefferson Davis as president of the Confederacy.” Jones, then 72 years old, “was the state’s most long-serving and revered jurist.” His father had fought on the side of the Confederacy. “In 1956,” as Barbas recounts, “Jones issued the injunction [halting] the operations of the NAACP in Alabama,” declaring, “I intend to deal the NAACP a mortal blow from which they shall never recover.” In 1957, in a piece for the local newspaper “titled ‘I Speak for the White Race,’ he declared that ‘the white race shall remain forever white’” despite the efforts of integrationists to promote “intermarriage and mongrelization of the American people.”

Of the 37 prospective jurors, just two were Black, and Nachman removed both. Several others were dressed in Confederate uniforms and carried pistols. “Women,” meanwhile “were barred from jury service by law.” Nachman easily proved all the elements of his case through the testimony of several Montgomery residents, even though, on cross-examination, they all testified that the first time they saw the Times’s ad was when Nachman had shown it to them three weeks earlier, “that they didn’t believe any of the statements in the ad,” and that “Sullivan’s reputation hadn’t fallen in their eyes whatsoever.”

The case on behalf of the Times, according to Barbas, “did far more for Sullivan’s case than for the defense.” Several Times employees had to admit that the ad was published without any attempt to confirm its accuracy. A Times official testified that the paper “hadn’t published a retraction […] because ‘we didn’t see how the ad reflected on [Sullivan] in any way or how he could be identified with the ad,’” and in any event, “the statements in the ad were ‘substantially correct.’” Barbas reports that this testimony “inflamed the jury” and “would be used by [Nachman] as evidence of the newspaper’s recklessness.” Meanwhile, lawyers defending the ministers brought out that the Times hadn’t obtained their clients’ consent to use their names, further reflecting badly on the paper.

The jury retired and, two hours later, rendered a verdict jointly and severally against the Times and the four ministers for $500,000 (more than five million in today’s dollars).

The following January, in a replay of the Sullivan trial, Montgomery mayor Earl James won his own verdict for $500,000. The wave of huge libel verdicts against the press and civil rights leaders drained time and money from the struggle for racial equality and hampered news coverage of that struggle. But at the same time, as Barbas writes, “[i]n speeches, editorials, and pamphlets, civil rights leaders publicized the connection between civil rights and freedom of the press.”

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In late 1961, the Times and the ministers conducted their arguments before the Alabama Supreme Court, which Barbas characterizes as “notorious for its unrepentant white supremacy” and “a zealous participant in the state’s efforts to enforce segregation.” The result was a foregone conclusion—“on August 30, 1962, the [court] unanimously affirmed the judgments against” all the defendants. It held—as was indeed the law at the time—that “the First Amendment of the U.S. Constitution does not protect libelous publications.” The most dangerous aspect of the ruling was its holding that “an attack on a government entity could constitute a libel of an individual [official of that] government.”

Barbas is adept at describing how, even before the landmark decision in Sullivan, “[s]ome of the most consequential free speech decisions of the era emerged from the [US Supreme] Court’s desire to protect the civil rights movement.” The court had overturned Alabama’s efforts to compel the NAACP “to disclose its membership rolls”; it had “invalidated [an Arkansas] loyalty oath […] intended to rid public schools of employees who belonged to the NAACP”; and it had “struck down laws in Virginia that prohibited the solicitation of legal clients,” which were designed to block the litigation efforts of the organization.

“By 1964,” Barbas explains, “officials in three Southern states had brought seventeen libel actions against [various parties], primarily over civil rights coverage, seeking damages of more than $288 million” (in today’s dollars, an astounding $2.9 billion).

To take the case to the Supreme Court, the Times hired one of the most prominent experts in constitutional law, Herbert Wechsler of Columbia Law School. Wechsler would alter the course not only of the Sullivan case but also of the history of American journalism and the Civil Rights Movement. To assist him, Wechsler summoned his younger colleague, Marvin Frankel, who had recently joined the Columbia faculty. Barbas credits Frankel with developing “the most important ideas of the appeal.” He devised a brilliant way to “constitutionalize” libel law by “pursu[ing] a Sedition Act strategy.” Specifically, he recommended shifting the focus “from the [individual’s] right to protect [their] reputation to the right to criticize the government,” clearly a fundamental interest under the First Amendment.

Wechsler and Frankel collaborated on a 30-page petition for certiorari to convince the court to take the case: “‘Like sedition, insurrection, contempt, advocacy of unlawful acts, breach of the peace, disorderly conduct, obscenity or barratry, to name but prime examples,’ libel ‘must be defined and judged by standards which are not repugnant to the Constitution.’” The petition also emphasized the civil rights context: “This is not a time when it would serve the values enshrined in the Constitution to force the press to curtail its attention to the racial tensions of the country or to forego dissemination of its publications in the areas where tension is extreme.”

The Times’s petition was filed on December 15, 1962. Soon, the ministers filed their own, stating,

Patently, the institution of each and all of these libel prosecutions was designed to intimidate and penalize petitioners and others giving leadership and religious and spiritual guidance and support to the civil rights movement, and unconstitutionally to stifle all criticism by news media of Alabama public officials in connection therewith, as well as to punish and silence the Times.

At a confidential conference, the justices voted 6–3 to hear the case.

In his brief on the merits, Wechsler confronted head-on the fact that the Times had indeed published several false statements. He borrowed a phrase from a recent opinion by Justice William Brennan, which emphasized that the First Amendment “need[ed] breathing space to survive.” As Barbas notes, “Wechsler insisted that the First Amendment protected criticism of public officials absolutely and there was no balance to be struck between the protection of official reputation and freedom of the press.” He drew an analogy to “the [absolute] immunity given to public officials from libel suits from what they said in the course of their duties.”

Doubting he could convince a majority to grant the media an “absolute privilege,” Wechsler offered several “‘accommodations’ […] that would protect speech broadly yet [still] offer some protections for reputation,” such as proof that officials demonstrate “specific economic losses” or that the critic was motivated by an intent to harm. Notably, the groundbreaking new constitutional requirement that Sullivan would announce—proving “knowledge of falsity or ‘reckless disregard’ of the truth”—“was never once mentioned in the Times’ brief.”

With amicus curiae briefs filed on behalf of the Chicago Tribune, The Washington Post, and the ACLU, the case was set for oral argument on January 6, 1964. Before he flew to Washington, DC, Nachman told Sullivan that, for “the Supreme Court [to] take away his jury verdict,” it “would have to reverse 200 years of settled law.” As Barbas wryly puts it, “How could he possibly lose?”

Shortly after noon on January 6, the justices took their seats in the court. The distinguished spectators included King himself. Astonishingly, Barbas reports that, from the bench, “[Justice] Arthur Goldberg, dispensing with any illusion of impartiality, sent down a copy of Stride Toward Freedom with a note asking for King’s autograph.” Equally remarkable, Goldberg had been one of three justices who had voted not to hear the appeal.

Wechsler began his argument by telling the court that the Alabama judgment posed “hazards to the freedom of the press, of a dimension not confronted since the early days of the Republic.” Brennan asked if there were “any limits” that would take criticism of official conduct “outside the protection of the First Amendment.” Alluding to James Madison, Wechsler responded that he saw “no toying with limits or with exclusions.” When Brennan asked if the First Amendment gave “absolute” protection, Wechsler reiterated that “[t]he First Amendment was precisely designed to do away with seditious libel,” but he was cut off by Goldberg, who asked if he was “arguing […] for a special rule that applies to newspapers.” Wechsler answered, “Certainly not,” but he missed the opportunity to point out that, in addition to freedom of speech, the First Amendment explicitly provides separate protection for “freedom of the press.”

As Goldberg pressed Wechsler whether his position covered “any type of false or malicious statement” regarding official conduct, such as falsely stating that a mayor “had accepted a bribe of one million dollars to commit an official act,” Wechsler responded, “That is right,” and noted that the mayor was free “to make a speech answering the charge.” Wechsler made sure to add that the law could “attempt an accommodation of conflicting interests,” such as a “qualified privilege rule” or a requirement that public officials prove damage to their “reputation in any tangible way.”

“On March 9, 1964, Brennan announced the unanimous opinion in New York Times v. Sullivan,” Barbas reports. It did indeed reverse over 200 years of American law. For the first time, the court held that “a libel action brought by a public official against critics of his official conduct” must comply with “the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments.” Brennan issued one of the most notable statements in the history of free expression:

Thus 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.

The opinion “rejected truth as a requirement for First Amendment protection” because “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.’” “Even a false statement,” the opinion suggests, “make[s] a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’” “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable ‘self-censorship,’” according to the court.

Brennan declined to adopt Wechsler’s “absolute” rule. Instead, the court held that a public official must “prove actual malice”—“that the defendant acted with knowledge that a statement was false or [in] reckless disregard of whether it was false or not.” Since Sullivan had failed to do so, the verdict could not stand.

Justice Hugo Black wrote a separate concurring opinion, joined by Justice William O. Douglas, endorsing the absolute rule. He pointed out that libel cases were “harassing and punishing a free press,” with 11 suits pending in Alabama against the Times, seeking a total of $5,600,000, “and five such suits against the Columbia Broadcasting System seeking $1,700,000.”

Barbas describes how “Sullivan revolutionized the law of libel” and signaled “the most forceful and extensive articulation of the role of freedom of speech in democracy in the Supreme Court’s history to that time.” It has been cited in over 60 Supreme Court opinions and countless lower court decisions to justify expanded First Amendment protection in a wide array of settings.

King applauded the court for upholding “the freedom of the press and speech so vital to those who are engaged in the struggle for full freedom.” Barbas underscores her main theme by asserting that, “[i]nsofar as the success of the civil rights movement can be attributed, in significant part, to direct action protests and media coverage of those protests, Sullivan may have been one of the most consequential Supreme Court decisions for the advancement of the civil rights movement.”

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But will Sullivan continue to play its historic role? In 2019, Justice Clarence Thomas argued for a reassessment. In 2021, Justice Neil Gorsuch claimed that “[w]hat started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.” Recently, Florida governor Ron DeSantis complained that Sullivan serves as a “shield” to protect publications that “smear” officials and candidates. He proposed a bill that would leave the press wide open to lawsuits, including a rule that comments made by anonymous sources—a common journalistic technique—would be presumed false in defamation suits.

But the shoe was on the other foot in the $1.6 billion libel case Dominion Voting Systems Corporation filed against Fox News for claiming that Dominion’s voting machines had changed Trump votes to Biden votes. Fox’s defense? That “the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan.” But after the trial judge found as a matter of law that Fox had published false statements of fact about Dominion’s voting machines and that Dominion had presented sufficient evidence of “actual malice” to go to the jury, Fox agreed to pay Dominion $787.5 million to settle the case. Even the robust protections of Sullivan cannot protect a media outlet where there is compelling evidence it knowingly or recklessly published damaging falsehoods.

Sixty years ago, segregationists impeded the Civil Rights Movement and punished the press for exposing racism by weaponizing libel suits. Sullivan put a stop to that. Today, Republican politicians and conservative Supreme Court justices are seeking to eliminate Sullivan, thereby opening the door to a flood of libel suits, dragging their critics and the press into lengthy and costly litigation, and distracting them from ensuring that the “debate on public issues” remains “uninhibited, robust, and wide-open.”

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Stephen Rohde is a writer, lecturer, and political activist. For almost 50 years, he practiced civil rights, civil liberties, and intellectual property law.