A Free-Speech Milestone

USUALLY it is an author's ability to clarify and expand upon one theme that helps make a book convincing to the reader."Make No Law" is an exception. Anthony Lewis ably intertwines multiple themes - free speech, racial justice, judicial compromise, and public-versus-private power, for example - in recounting the story of the most important libel ruling in United States history. New York Times v. Sullivan (1964) is the classic defamation case. Its impact extends not only to a host of areas of American life but also to the development of representative government elsewhere. The recent emergence of the concept of free speech in the Soviet Union and Eastern Europe will doubtless be touched by Sullivan concepts. This volume is a tribute to contemporary civil libertarian and free-speech advocate William Brennan, a recent retiree from the US Supreme Court. Justice Brennan's painstaking scrutiny of First Amendment law in Sullivan, including his ability to bring his fellow justices together on the complications of libel law, is considered one of the great judicial feats of the 20th century. Brennan turned a splintered court into unanimity on this issue. The jurist's ringing opinion reversed the Alabama courts, which had upheld a libel claim by city commissioner L. B. Sullivan against the New York Times. Sullivan alleged that the newspaper gave the impression that he had illegally aided the cause of segregation. The controversy arose not over an article or editorial in the Times but in connection with an advertisement with the headline "Heed their Rising Voices." This suggested terroristic repression of the civil-rights movement in the South, specifically in Montgomery, Ala. It also contained some factual inaccuracies. Commissioner Sullivan was never directly named in the advertisement, but his charge over the police - and the allegation of police misconduct - gave him grounds for legal action. The state courts awarded him $500,000 in damages in upholding the libel claim. Brennan's ruling striking down the trial-court verdict based his finding on the belief that "... 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 high court's fervent defense of free expression in the Sullivan case, Lewis points out, did not, however, give the press absolute immunity from libel claims. Justice Brennan crafted a standard, endorsed by his judicial colleagues, that protected all but knowing or reckless falsehood. But he took into consideration the value of a claimant's reputation. Lewis notes that the jurist saw reputation as an "aspect of our sense of self; to injure it is almost to violate one's physical integrity." Lewis, a veteran journalist and Supreme Court reporter, adds a note of warning to the press, which, he says, often gives the impression of arrogance by refusing to admit mistakes. The writer, at the same time, lauds his journalistic cohorts for vigorous reporting on such controversial issues as civil rights, Watergate, and US involvement in Southeast Asia. But he reminds them that the First Amendment was not designed for editors, publishers, and writers alone, but for the public at large. "Press exceptionalism - the idea that journalism has a different and superior status in the Constitution - is not only an unconvincing but a dangerous doctrine," he writes. Although a landmark verdict for free speech and expression, Sullivan had the effect of encouraging libel suits against the press, rather than inhibiting them. Lewis says there has been more hard-hitting reporting since Sullivan than before, especially involving criticism of government. The Sullivan standards, as one might suspect, are subject to continual legal scrutiny. Although some would strengthen them, a conservative Supreme Court could well make it easier for plaintiffs to prevail in libel claims. Interestingly, re-evaluations of protections of some forms of speech could also alter rights associated with expression connected with abortion, an issue very much alive in the courts now. The spirit of Justice Brennan's ruling in Sullivan will permeate discussions of free speech during the Bill of Rights bicentennial celebration later this year. The retired justice may be on the sidelines, but one of his most enthusiastic champions, Anthony Lewis, is still writing about the First Amendment in his New York Times columns and longer opuses like "Make No Law." He does us a distinct service by doing so.