Freedom of the Press
Anthony Lewis distinguishes between Britain and America
Martin Chuzzlewit, in the Dickens novel, crosses the Atlantic in a packet boat. When it reaches New York, newsboys come aboard shouting out the latest in their papers: the New York Sewer, the Stabber, the Plunderer and so on. ‘Here’s the Sewer’s exposure of the Washington gang,’ one cries, ‘and the Sewer’s exclusive account of a flagrant act of dishonesty committed by the Secretary of State when he was eight years old, now communicated, at a great expense, by his own nurse.’ No one but Dickens could make the point with such extravagant gusto. But others felt a distaste for our press then, and do now. How self-righteous it can be, and how outrageous. Today Americans would add: how powerful. Our papers no longer have to retail fancies of the crimes committed by political leaders in childhood. We have a press that exposes real official wrongs: a press which helped to force a President from office and which has pushed candidates out of the present campaign for the White House. That kind of press arouses resentment: hardly a surprise. ‘The press is the enemy,’ President Nixon instructed his staff. Politicians less prickly than he have felt victimised by the press. And resentment does not come only from the victims. Among the public, too, there is a feeling that the press has grown arrogant. ‘Who elected you?’ people ask.
Why should a self-appointed group have the power to root about in our national life, exposing what they deem ripe for exposure? The American press would say the Constitution of the United States answered that question. The Framers made the choice when they put in the First Amendment the command: ‘Congress shall make no law ... abridging the freedom of speech, or of the press.’ Those are sweeping words. But the First Amendment is not what some in my profession assume it is: a declaration that the press must always prevail in any legal contest, that journalists are a preferred class. The purpose of the clause assuring the freedom of the press was not to serve the interest of editors and publishers: it was to serve the interest of society. So the great cases teach. Even in a country whose fundamental law explicitly protects the freedom of the press, that freedom is seen in a larger social and political framework.
On 29 March 1960, the New York Times carried an advertisement with the heading, ‘Heed Their Rising Voices.’ It was what we call ‘message advertising’, seeking support for the Civil Rights movement in the South and in particular for Martin Luther King. The text deplored what the Police and other elements of the then dominant white segregationist forces in the South had done to peaceful protesters against racial discrimination. It said that Dr King had been arrested seven times and his home bombed, that black students in Montgomery, Alabama had been expelled after singing ‘My country, ’tis of thee’ on the steps of the State capitol. The advertisement named no names among the forces it criticised. But a commissioner of the city of Montgomery, L.B. Sullivan, claimed that it would be taken as reflecting on him because he was in charge of the local police. He brought an action for libel, seeking $500,000 in damages. The Times could not offer the defence of truth, because it found that the ad was inaccurate in some particulars. Dr King had been arrested four times, for example, not seven; and the students had sung not ‘My country, ‘tis of thee’ but ‘The Star-Spangled Banner’. At trial in Alabama the judge found the ad ‘libellous per se’. He instructed the jury to bring in a verdict for Mr Sullivan if it found that the advertisement was ‘of and concerning’ him. It did, awarding him all he had asked – $500,000.
Four other Alabama politicians brought libel actions over that advertisement. They sought $3 million in damages, and there was every reason to expect juries to award that amount in total. The survival of the Times, then a marginally profitable newspaper, was at risk. Moreover, other libel actions were brought against the Times, broadcast networks and national magazines over news reports on the South. It was plain that the hallowed Common Law action for libel was being used for a new purpose: a political purpose, to frighten national news organisations out of covering the racial struggle. It is only twenty-five years ago, but we can hardly remember conditions in the American South then. Blacks were barred by law – law that had been found unconstitutional but was still enforced – from attending schools with whites or entering most hotels or eating at lunch counters. In large parts of the South blacks were kept from voting by intimidation and trick and murder. It may indicate the atmosphere if I tell you that the New York Times had great difficulty finding a lawyer in Alabama who would represent the paper in the Sullivan case. When one did agree to take the case, and he invited the Times’s New York lawyer down to discuss it, he booked the visitor into a motel forty miles away under an assumed name.
Would it have mattered if the national press had been scared off by those libel actions and had stopped paying close attention to the racial conflict? I think it would have made a great difference. Most Americans were not aware of the cruel reality of racism until the news reports of the Fifties and Sixties confronted them with it. Professor Alexander Bickel of the Yale Law School wrote that television coverage of mob resistance to school desegregation brought concretely home to viewers what the abstract idea of racial segregation meant, ‘Here were grown men and women,’ he said, ‘furiously confronting their enemy: two, three, a half-dozen scrubbed, starched, scared and incredibly brave coloured children. The moral bankruptcy, the shame of the thing, was evident.’ Americans reacted politically to what they saw and read. Congress passed laws that utterly changed the South, so that blacks now vote freely and hold political office – and it is a region that looks to the future instead of the past. It was an astonishing social change, and it happened in part because the press performed its function.
The press was able to keep covering the Civil Rights movement because the Supreme Court set aside the libel judgment for Mr Sullivan. That may sound easy to do: a huge sum, awarded because of trivial errors in the text to a man not mentioned in an advertisement. But the Supreme Court has no power to review the decisions of State courts on matters of State law. It can only correct them when they run foul of the Federal Constitution. And libel had always been considered a matter for State law. In 170 years the First Amendment had never been held to apply to libel cases. Counsel for the Times in the Supreme Court, Professor Herbert Wechsler of the Columbia Law School, met that challenge of history by himself calling on history. He reminded the Court that in 1798 Congress had passed a Sedition Act making it a crime to publish false criticism of the Government or its leaders – and that James Madison, the principal author of the First Amendment, had condemned the Act. It was a violation, he said, not only of the freedom of speech and press but of the whole premise of our new Constitution: that the people were to make the ultimate political judgments. Madison said the Sedition Act threatened ‘the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right’. Professor Wechsler relied on that early statement of the centrality of free political speech in a free society. He said that this libel action suppressed the freedom as effectively as a direct prohibition on speech or publication about the racial issue. ‘This is not a time – there never is a time – when it would serve the values en-shrined in the Constitution,’ he told the Court, ‘to force the press to curtail its attention to the tensest isues that confront the country.’ The Supreme Court agreed. In an opinion by Justice Brennan, it held that the First Amendment allowed robust and uninhibited speech about political life, including even unpleasantly sharp attacks on those in office, and that inadvertent mistakes in such political criticism could not be the basis of libel judgments.
The American press celebrates the case of ‘New York Times’ v. Sullivan as its greatest legal victory in modern times. But it was not a press case in the narrow sense. The crux o Justice Brennan’s opinion is in a passage noting that, under our law, officials are broadly immune from libel actions for what they say in the course of their duties, the purpose being to encourage vigour in their performance. ‘Analogous considerations,’ Justice Brennan said, ‘support the privilege for the citizen-critic of government. It is as much his duty to criticise as it is the official’s duty to administer.’ The passage expressed James Madison’s view. The object of the Constitution is to preserve public control over the men and measures of government. The press is protected not for its own sake but to enable a free political system to operate. In the end, the concern is not for the reporter or the editor but for the citizen-critic of government.
The Sullivan case demonstrates what is at stake on so many of the occasions when we speak about freedom of the press. It is the freedom to perform a function on behalf of the polity. Nowadays, Justice Powell of our Supreme Court has said: ‘no individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities ... By enabling the public to assert meaningful control over the political process, the press performs a crucial function in effecting the societal purpose of the First Amendment.’