Last week I discussed oral argument in New York Times v. Sullivan, the landmark First Amendment case that limited the use of libel suits based on criticism of public officials. The case arose from an fundraising advertisement that ran in the New York Times on March 29, 1960. Titled “Heed Their Rising Voices,” the ad was intended to raise money to support Martin Luther King Jr. and others involved in the civil rights struggle. It included some factual inaccuracies about the way police in Montgomery, Alabama, treated King and civil right protesters. Montgomery’s commissioner who was in charge of the police, L.B. Sullivan, won a $500,000 verdict against the New York Times, which was upheld in the Alabama Supreme Court. Sullivan also included in his libel suit four African American preachers, all leading figures in the civil rights movement, whose names were listed as endorsing the fundraising ad. The U.S. Supreme Court heard their appeal, Abernathy v. Sullivan, alongside the New York Times case. It was a colloquy with Sullivan’s lawyer in the ministers’ appeal that led Chief Justice Earl Warren to talk about his hate mail.
Sullivan’s lawyer, Roland Nachman Jr., was explaining to the justices how Alabama libel law allowed a potential defendant to avoid liability by issuing a retraction. But when the four ministers who were defendants in this case received notice of the defamation suit, they failed to respond. The reason they did not respond was that they knew nothing about the advertisement—the people who ran it had added their names without their knowledge. But Nachman insisted that even if this were true, a jury could have interpreted their non-response as evidence “to the effect that the charge is correct.”