by Kermit L. Hall and Melvin Urofsky. Lawrence, Kansas: University Press of Kansas, 2011. 222 pp. Paperback $17.95 ISBN: 9780700618033.
Reviewed by Rick A. Swanson, Department of Political Science, University of Louisiana—Lafayette. E-mail: swanson [at] louisiana.edu
One of the greatest landmark U.S. Supreme Court cases ever involving the Freedom of Speech is New York Times v. Sullivan.(1964). In Sullivan, the Supreme Court ruled for the first time that the Free Speech Clause of the First Amendment to the U.S. Constitution provides individuals and the press wide latitude to criticize public officials without fear of being sued by those officials under state libel law. Writing a detailed history of the case are the late Kermit L. Hall, and his long-time academic collaborator Melvin Urofsky. This work is part of the series titled Landmark Law Cases & American Society, with series editors Peter Charles Hoffer and N.E.H. Hull, published by University of Kansas Press.
According to Urofsky’s introduction, after legal writer Anthony Lewis published his study of New York Times v. Sullivan. (Lewis, 1992), Hall told Urofsky “he had a different take on the case. Where Lewis had emphasized New York Times as a First Amendment decision championing freedom of the press, Kermit saw it as involving civil rights and Southern legal culture as much as, if not more so than, the press” (p.1). Unfortunately, however, Hall had “written only two articles” (p.2) towards a planned book before his untimely death. Urofsky had a “general idea from these articles what Kermit wanted to do” and shared “the basic assumption . . . about the importance of civil rights in the case” (p.2). With permission from Hall’s estate and contracted publisher, Urofsky decided to finish the work. Urofsky included the two articles Hall had written “as parts of chapters 1, 2, and 11” (p.2). Based on his understanding of Hall’s goals, Urofsky sought to fill in the missing chapters between the small bookends Hall had written. Thus, Urofsky’s completion of Hall’s work intends to have “several threads[:] . . .the civil rights movement, . . . a competing [Southern] vision of public discourse . . . and free press in a democracy” (pp.2-3). The result is a mostly-chronological examination of the background behind, the decision in, and the consequences of, New York Times v. Sullivan.
Chapter one details the racial tensions and civil rights activities in Montgomery, Alabama in 1960. This includes a description of some of the leading characters in the drama, such as Police Commissioner L.B. Sullivan. The chapter also chronicles the publication of the “Heed their Rising Voices” ad in the New York Times, and the reaction of Sullivan and other white political leaders in Montgomery to the ad, which was sponsored by “The Committee to Defend Martin Luther King and the Struggle for Freedom in the South.” The second chapter details the history of libel law, and how it applied in Alabama at the [*466] time Sullivan filed suit against the New York Times.
The next eight chapters were written exclusively by Urofsky. Chapter three describes the initial case in the Alabama trial court in detail, which culminated in the local jury finding the New York Times guilty of libel and assessing damages of $500,000 (the ad had contained errors of fact, and had been retracted by the Times). Chapter 4 explains the broader national civil rights context leading up to the moment that the New York Times decided to appeal the jury’s decision. Chapter five then describes the path to, and decision by, the Alabama Supreme Court upholding the jury verdict. This includes details regarding how the press, such as the New York Times, and civil rights groups like the NAACP battled attempts by Southern whites to suppress participation in, and press coverage of, civil rights activities through the application of state libel laws: Southern juries had awarded perhaps as much as $300 million in libel judgments against papers covering civil rights (p.84). The next four chapters chronologically detail the path and outcome of the case in the U.S. Supreme Court. This includes the petition for writ of certiorari, briefs, oral argument, and Justice Brennan’s drafting of the opinion that offered vigorous First Amendment protection for criticism of public officials, overturning the Alabama Supreme Court. These chapters offer elaborate analysis of the relevant legal issues and precedents argued by the litigants and applied by the Court. Chapter ten then examines how the U.S. Supreme Court has continued to modify libel law since the case.
The book concludes with chapter eleven, a short six-page coda written in part by Hall. While liberal legalism may view the opinion as the height of a liberating “rights consciousness,” Hall and Urofsky also consider the unintended negative consequence of the decision in New York Times v. Sullivan.. In a Southern society centered around tradition and hierarchy and paternalism, “Brennan’s opinion degraded public life” because after his opinion, potentially talented leaders “refused to risk political careers where . . .truth took second place to criticism” (p.203). Thus, the decision “contributed to the decay of community values” (p.203) and resulted in “sleazy journalism” (p.204). As the last paragraph of the chapter states, “the justices adopted a modern, northern conception of libel law that was designed to encourage a robust exchange of ideas, but this formula rejected the South’s most enduring contribution to the body of law, the notion that habits and manners of civility should govern public discourse” (p.206).
Immediately after the text concludes, there is a chronology of major civil rights events of just over a page. This is followed by a 6-page “Bibliographic Essay.” This is provided in lieu of footnotes, endnotes, or in-text citations throughout the book, because the series editors “asked all authors in the series to omit formal citations in order to make our volumes more reliable, inexpensive, and appealing for students and general readers” (p.209). The book ends with an 8-page index.
As just noted, this book is primarily aimed at a more general audience. For readers unfamiliar with the civil rights context of the case, the authors have provided a good summary of the connection between libel law and the [*467] civil rights movement in the South. Essentially, the Southern whites attempted to use libel law against civil rights activists, supporters, and “accomplices” (such as the media) in such a way as to resurrect the crime of seditious libel, but in civil lawsuit form. Thus, New York Times v. Sullivan. not only changed libel law in the United States in a way that gave robust protection to criticism of public officials, but by doing so the case arguably prevented the death of the civil rights movement. Readers will also learn more generally about libel law and its transformation – “it is difficult to think of the Washington Post stories that exposed Watergate taking place in a pre-Sullivan setting” (p.204) – and legal procedure, especially how the Supreme Court operates. Thus, the book should appeal to the general public, and also would work well in introductory undergraduate pre-law courses, or perhaps in an upper-level undergraduate Civil Liberties course. Readers already familiar with New York Times v. Sullivan. and its civil rights context, with libel law, and with how the Supreme Court operates, will not gain as much from the book. This will be especially true for those who have already read Lewis’s (1992) study of the case. Also, given the lack of direct citations, scholars seeking sources of specific facts found in the book will unfortunately have to search through the extensive materials listed in the bibliographic essay in hopes of finding a proverbial needle in a haystack. Despite these shortcomings, however, and despite the knowledge I already had about the case, I still found the work an interesting read, and gained more knowledge about the case and its background than I had before.
Finally, regardless of the target audience, the Hall and Urofsky could have provided more evidence in support of their claims that the case is as much or more about civil rights as it is about libel law. Although the early chapters support this, the discussion of the Supreme Court’s consideration of the case, as found in Chapters six through nine, seems to show the Justices focused almost exclusively on libel law as the issue at the heart of the case, not civil rights. Also, although the book’s introduction states that it will consider “a competing [Southern] vision of public discourse” (p.3) this analysis is only touched upon in some of the early chapters, and is clearly presented only in a mere six pages in the books’ concluding chapter. I found it an intriguing and provocative claim that a culture of civil political discourse might have been lost due to New York Times v. Sullivan, so I was disappointed to see the relative lack of discussion of the issue. Because of these omissions, I wonder if despite Urofsky’s best intentions, he perhaps fell slightly short of achieving the goals that Hall had originally intended. Of course, we will never know just what Hall had intended to say in his many unwritten chapters; nevertheless, Urofsky’s completion of the work Hall began is a worthy addition to the series on Landmark Law Cases & American Society, and the book will be of interest to a wide audience of students, scholars, and the general public.
Lewis, Anthony. 1992. Make No Law: The Sullivan Case and the First Amendment. Vintage Press.
New York Times v. Sullivan. 376 U.S. 254 (1964).
Copyright 2012 by the Author, Rick A. Swanson.