Jerry Edwards works as a Staff Attorney for the ACLU of Florida, where he specializes in First Amendment law and free speech history. You can find his other published writings in the Harvard Law and Policy Review and the Florida Law Review Forum.
Samantha Barbas, Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (Berkeley: University of California Press, 2024). $26.95 (paperback). 290 pages.
Samantha Barbas’s Actual Malice concerns one of the most important cases in American history about the First Amendment of the United States Constitution’s Bill of Rights: New York Times v. Sullivan—a triumph of the free press. At least, that is the traditional story of Sullivan. But Barbas’s thorough research reveals a different history. Sullivan’s robust protections for speech and press freedoms were contingent results of civil rights activism, overreaching segregationists, and U.S. Supreme Court members’ internal frustrations. Today, when these formidable “constitutional protections … may be in peril,” Actual Malice reminds its readers of the circumstances that created the modern First Amendment and the illiberalism its demise could portend.[1] Barbas draws from an array of archival sources to adroitly reconstruct the origins of Sullivan, the legal strategies that ultimately constitutionalized the law of libel, and the Justices’ horse-trading that produced the expansive expressive freedoms revered by Americans today.
Barbas’s history of New York Times v. Sullivan spans sixteen chapters to explore the litigation strategies that shaped this case and the indispensable role civil rights played in its outcome. The first four chapters introduce the events that created the Sullivan litigation and segregationists’ broader legal strategy. In the early twentieth century, libel law was unforgiving because litigants could sue newspapers for libel over even innocent, small errors. Beginning with Adolph Ochs’s purchase of the paper in 1896, the Times took an absolutist, cautionary approach to libel by refusing to settle. The paper also relied on its journalistic integrity and thorough fact-checking prowess. This approach worked, as the paper paid out only $43,987 of a possible $16,344,284 on libel claims from 1923 to 1949.[2]
Unfortunately for the Times, its coverage of the Civil Rights Movement put the paper on a collision course with that era’s repressive libel laws. As the Movement intensified in the South, the New York Times and other Northern media outlets provided thorough coverage, much to the chagrin of Southern white political leaders, who were accustomed to local newspapers bending to meet their will. When the student sit-in movement spread to Montgomery, Alabama, in 1960, city authorities permitted segregationists to attack the protesters. L.B. Sullivan was Montgomery’s Public Affairs Commissioner at this time, the city official responsible for overseeing the police force. Simultaneously, the state of Alabama was prosecuting Martin Luther King, Jr., on trumped-up tax fraud and perjury charges. Seeking to raise money for King’s legal defense, a committee led by Black civil rights leaders A. Phillip Randolph and Bayard Rustin placed an ad titled “Heed Their Rising Voices” in the New York Times. The ad discussed the protests in Montgomery, criticized the city, requested money for King’s defense, and included numerous celebrity endorsers. But its description of the protests and violence contained a few errors. The New York Times’s diligent fact-checking process, “considered stricter than any newspaper in the country,” should have caught these errors but did not.[3] The Times’sAdvertising Acceptability Department, overawed by the celebrity endorsers and the cause at hand, did not adequately verify the ad’s claims. The resulting litigation in the Alabama courts led to the landmark case, New York Times v. Sullivan.
“Barbas captures the hostile environment that the Alabama courts posed for the Times and its co-defendants: prospective jurors dressed as Confederate soldiers, a staunchly segregationist judge who proclaimed that “the white man’s justice” governed his courtroom, and the use of racial slurs at trial.”
The next six chapters detail how Southern political leaders and judges used libel litigation in the state court system to try to muzzle the Northern press’s unflattering portrayals of segregation. Randolph and Rustin’s “Heed Their Rising Voices” ad, with its minor errors, gave opponents of civil rights a golden opportunity. Few Alabamians in those days had access to the Times, but a local newspaper editor brought the libel suit opportunity to Montgomery’s three commissioners—L.B. Sullivan, Earl James, and Frank Parks—who in turn hired the best libel lawyer in the area, Roland “Rod” Nachman. Nachman, a Harvard-educated Jewish attorney and political moderate who had himself faced discrimination in Jim Crow Alabama,[4] would serve as the face of segregation in the litigation against the New York Times, filing suit on behalf of each commissioner. But Alabama was not done with the Times. The paper’s meticulous reporting on the atmosphere of racial terror in Birmingham led to local officials filing seven additional libel suits and earned the Times’s reporter a criminal libel indictment. Facing the possibility of financial ruin and needing to preserve its jurisdictional arguments, in 1960, the Times ordered its personnel to stay out of Alabama and cut its ties with local journalists. Its “iron curtain” policy would last for two and a half years, forcing it to rely on other media sources for its coverage of the Civil Rights Movement in the state.[5] Alabama’s successful weaponization of libel law to muzzle reporting on the civil rights struggle soon spread across the South. By 1964, officials from three Southern states had filed seventeen libel suits against Northern media outlets seeking more than $288 million in damages.[6]
[POPOUT: Facing the possibility of financial ruin and needing to preserve its jurisdictional arguments, in 1960, the Times ordered its personnel to stay out of Alabama and cut its ties with local journalists. Its “iron curtain” policy would last for two and a half years, forcing it to rely on other media sources for its coverage of the Civil Rights Movement in the state.]
L.B. Sullivan’s libel action over the “Heed Their Rising Voices” ad was the first of the lawsuits to go to trial. Nachman added four Alabama ministers (Ralph Abernathy, Joseph Lowery, Solomon Seay, and Fred Shuttlesworth)—whose names were added to the ad without their permission or knowledge—to the suit as defendants alongside the New York Times to keep the case in Alabama’s state courts. Barbas captures the hostile environment that the Alabama courts posed for the Times and its co-defendants: prospective jurors dressed as Confederate soldiers, a staunchly segregationist judge who proclaimed that “the white man’s justice” governed his courtroom, and the use of racial slurs at trial.[7]
Advertisement, “Heed Their Rising Voices,” New York Times, March 29, 1960. Image courtesy of the United States National Archives-Atlanta, Records of District Courts of the United States (National Archives Identifier 2641477).
Unsurprisingly, Sullivan won, and the jury gave him every cent of the $500,000 he had demanded. More surprising was the fact that other Northern media outlets did not support the Times, as they feared retaliation. The Times also kept its co-defendants, the ministers, at arm’s length—determining that distance, rather than collaboration, best served its legal strategy. When the judgment was handed down, the wealthy Times had a cushion to wait out the appeals process, but the co-defendant ministers were stripped of personal assets. As the Alabama litigation ran its course, the Times could either capitulate to the segregationists or appeal to the U.S. Supreme Court. It chose the latter, which is the subject of the final chapters of Actual Malice.
As the case moved to the U.S. Supreme Court, the co-defendants tried their own legal strategies. The ministers relied on the Fourteenth Amendment and the Equal Protection Clause. The Times and its renowned attorney, Columbia Law School professor Herbert Wechsler, instead prioritized the spirit of the First Amendment. Wechsler’s co-counsel—Marvin Frankel, also Columbia Law faculty—ingeniously juxtaposed Alabama’s libel law to the disreputable Sedition Act of 1798. This big picture strategy enabled Wechsler and the Times to sidestep ambiguities in First Amendment law. Wechsler argued for an absolute right to criticize public officials. But he also offered a softer strategy—what he termed “accommodations”—with the hopes of reeling in the votes of more conservative members of the Court. Ultimately, however, it was neither Wechsler nor Frankel but rather Justice William Brennan who devised the standard by which the case would come to be known. In deliberations with fellow members of the Court, Brennan argued that libel should only apply to newspapers when they employed “actual malice.”[8] Brennan, an ally of the Civil Rights Movement, was determined to find a rule potent enough to thwart segregationists’ weaponization of libel.
Justice William Brennan, 6/19/[19]95 [printed between 2018 and 2021]. Photo by Nancy Lee Katz and used with permission of the Estate of Nancy Lee Katz.
The case should have gone back to the Alabama courts so that this new “actual malice” standard could be applied to the original case, but Brennan was determined to make a point. He convinced his colleagues that Sullivan and Alabama simply did not have enough evidence to prove “actual malice” on the part of the Times. Brennan did not trust Alabama’s courts to follow the rule in good faith. The Court’s 1964 Sullivan decision destroyed segregationists’ strategy of using libel to silence the Northern media. The Civil Rights Movement would be reported on without fear. Meanwhile, the press downplayed the immediate civil rights implications and instead trumpeted the decision as a victory for free speech and press freedom. In so doing, the Times,and the media more generally, lauded themselves while obscuring the activists who had suffered the most to generate the outcome in Sullivan.
Actual Malice is a thought-provoking book that challenges the conventional understanding of one of America’s most significant First Amendment cases. Ultimately, Barbas’s argument that New York Times v. Sullivan is best understood as a product of civil rights activism is persuasive. Certainly, press freedom was an inextricable part of the dispute, but Sullivan’s robust speech protections emerged in response to a Southern strategy seeking to preserve and perpetuate segregation and to scupper the Civil Rights Movement. As Barbas demonstrates throughout, this result was contingent: A quotidian libel case likely would have resulted in far weaker press and speech protections. Yet, the book does leave some important questions unanswered. Perhaps the most significant is whether the New York Times changed its fact-checking processes in the years after the decision. As Barbas herself acknowledges, a prominent criticism of Sullivan is that its protections discourage responsible journalism. Her access to the Times’s archives offered an opportunity to assess the veracity of this claim. Barbas also does not address another prominent criticism of Sullivan—that Justice Brennan’s opinion misstates First Amendment history.[9] Regardless, this should not dampen readers’ enthusiasm for Actual Malice. Blending civil rights, media, and legal history into an enthralling narrative, Barbas’s book has much to offer both historians and legal scholars. At a time when New York Times v. Sullivan is under threat,[10]Actual Malice provides an essential recounting of the history that created modern press freedoms and a convincing case for sustaining these protections.
[1] Samantha Barbas, Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (Oakland: University of California Press, 2024), 4.
[4] Ibid., 66–67. Barbas’s research reveals that Nachman’s main motivations for taking the case were “old-fashioned competitiveness” and “regional pride,” rather than “a desire to enforce segregation.” Ibid., 68.
[7] Ibid., 107, 119–22. Barbas discloses that Judge Walter Burgwyn Jones, the segregationist who oversaw the trial, had once been arrested for molesting a boy at the YMCA. L.B. Sullivan covered up the arrest. Ibid., 105.
[9] For competing views on early American press freedom, see generally Wendell Bird, The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox’s Libel Act (New York: Oxford University Press, 2020), and Leonard W. Levy, Emergence of a Free Press (New York: Oxford University Press, 1985).
[10] U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, for example, have criticized and called for the reconsideration of New York Times v. Sullivan in recent years. Barbas, Actual Malice, at 4.
