U.S. Constitutional rights to freedom of speech, to be free of unreasonable searches and seizures, and to refrain from incriminating ourselves are revered by the whole world. But these rights exist only on paper until Courts uphold them in real life cases.
Good people don’t get into cases that preserve our rights. Cases define and preserve our rights when criminals do things that then raise questions about police or prosecutorial conduct that appears to violate the rights memorialized on paper. We have what are now called “Miranda” warnings because courts recognized a pattern of corrupt police behavior, in which fake confessions were extracted from arrested criminal suspects. Indigent defendants have a right to counsel because courts recognized that zealous prosecutors were churning up their conviction stats by prosecuting defendants who had no attorneys to insist on compliance with procedural and substantive laws.
March 9 marks the 50th anniversary of one of the central 1st Amendment cases in our national history: New York Times vs. Sullivan. In 1960, the New York Times ran a full-page advertisement raising funds for the Civil Rights movement. The ad listed abuses that black Americans suffered in Southern states, and particularly at the hands of the police and other government officials. The ad solicited donations of funds to assist Dr. Martin Luther King, Jr. and others in their defense of legal claims against them for their civil rights efforts.
Sullivan, a white politician in Montgomery, Alabama, who was not named in the ad, saw an opportunity for a payday and a boost in his support from segregationist voters by attacking the ad, the Times and the civil rights leaders responsible for the ad. He sued for libel, claiming that the ad was about his segregationist activity, and also that it was factually wrong. An all-white Alabama jury drooled over the chance to ‘stick it to’ the Times and the civil rights workers, and awarded Sullivan damages of $500,000 (1960 dollars). The all-white Alabama State Supreme Court upheld the verdict and the Times appealed to the U.S. Supreme Court.
The U.S. Supreme Court reversed the verdict. It acknowledged that there were clear factual errors in the ad. But the Court then held that the 1st Amendment gives people the right to criticize public officials and to comment on matters of public concern, even if that criticism is sometimes inaccurate.
One of the parts of the Sullivan decision that is generally forgotten is the Court’s observation that many states allowed government officials to sue people who criticized them, and that power was used to discourage expressions of dissent. That particular tactic was evident in Sullivan’s lawsuit – he hadn’t been criticized by the ad, but he jumped at the chance to attach his name to it, for the purpose of building up his own political career and his bank account.
The New York Times v. Sullivan decision did not open the floodgates to libeling politicians. The Court held that a politician could sue for libel, but that to win he would have to prove that false statements about him were made knowingly, and with malice. The Court held that our democracy’s need for robust public debate on important issues requires that those who participate in the debate have to accept that some inaccuracies are inevitable and that redress through libel actions was only available when it was shown that a misstatement of fact was intentional or reckless, and was intended to injure another person, rather than intended to further the public debate.
As with Miranda warnings and other rights for defendants, the Sullivan case affirmed the rights of people whom many, perhaps a majority, of Americans despised. When the ad ran, in 1960, segregation was widely accepted and legally enforced in much of the nation. In 1964, when the Supreme Court issued its opinion, Civil Rights Movement leaders continued to be reviled as dangerous radicals, even by many people who were beginning to accept that legally enforced segregation was wrong.
The 1st Amendment protects people from government action, not private actions. So how was it that Sullivan’s private complaint against other private individuals and the private New York Times corporation ended up violating the Constitution? It didn’t. What implicated government was the Alabama state court system’s involvement. Providing Sullivan with a venue to prosecute his private attack on the defendants, was state action, by Alabama, that made the 1st Amendment applicable.
When people want to promote grand ideas, like universal civil rights, or evil ideas like segregation or religious bias, they are free to do so, without state interference. But when they want to move from mere idea promotion to action based on their ideas, they often run into state issues, and that implicates the 1st Amendment. Decisions holding that majority Jewish suburbs cannot deny parade permits to Nazi groups, and that cities can’t allow some groups to have public space for religious displays unless all similarly situated groups are given equal public space access, grow directly from the Sullivan case.
If all people don’t enjoy equal protection under the 1st Amendment, what good does it really do? This question was raised in January by the California Supreme Court, when it denied the application of Stephen Glass for admission to the State Bar. In the 1990s, after college but before graduating from law school, Glass worked as a “journalist”. He wrote stories “deluding the public, maligning individuals, and disparaging ethnic minorities.” Unlike the New York Times ad, that never named Sullivan, Glass’ articles named names. But the names he named were fictitious. He made up people and quotes to make his stories more exciting and to justify his bigoted viewpoints.
Libel does not apply to fictitious people. Call Albus Dumbledore a pedophile and you will never be sued for defaming his character. No one ever sued Glass for libel. But when his fabrications were revealed, his journalism career ended. That was in the 1990s, before Fox News raised “fabrication journalism” to high art.
The California Supreme Court found Glass to be morally unfit to be a lawyer. The Court noted that after being found out, Glass had lied about his history, and when he applied for both New York and California Bar admission, he did not fully disclose his past. But the core of the Court’s umbrage at Glass was its finding that he had not apologized and made restitution to those his writing had victimized.
The case includes evidence from psychologists who have treated Glass, from law school faculty, from judges for whom in interned, and from lawyers with whom he has worked in legal matters (as a non-lawyer). The therapists say that he has addressed his problems and reformed his thinking. The law school, judges, and lawyers say there is no record of dishonesty related to his legal studies or work. The California Supreme Court didn’t care. Like the Alabama Supreme Court in Sullivan, they wanted to strike a blow for what they see as current morality.
Is that acceptable to progressives? Should the State take action to keep Glass from practicing law – to keep him out of a profession where his every written document will be questioned and scrutinized by opposing counsel? Should he be perpetually punished for wrongs (not crimes) he indisputably committed in the 1990s, or even the 2000s, if substantial evidence shows that he has reformed, or been rehabilitated?
It’s easy for progressives to condemn a state prison system which increasingly abandons any pretense of rehabilitation, or providing prisoners with drug counseling, or education, or even basic medical care. But what do we care about treatment or rehabilitation if our society continues to punish people long after they serve their time?
We still call our prison system a “correctional system”. But doesn’t the Glass case reinforce the truth that correction is irrelevant to the system? Is what the California Supreme Court did to Stephen Glass any less bigotry driven than what the Alabama Supreme Court did to the New York Times defendants in the 1960s? Is it any less an infringement of 1st Amendment rights for a state to deny a man a Bar license because it dislikes what he wrote about minorities than for the state to slap a newspaper with a huge libel verdict because the state dislikes what the newspaper published against segregation?
Is denying a Bar license to a man because he fabricated racist, bigoted magazine articles really what we mean by “Justice for All”? Is this how we honor New York Times v. Sullivan, or the people who put themselves at risk in the Civil Rights Movement?
Subscribe to LA Progressive's daily newsletter
* indicates required
Email Address *
Powered by MailChimp