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.”
This argument hit close to home for the Chief Justice:
Chief Justice Earl Warren: Mr. — Mr. Nachman, it is not unknown to at least one member of this Court that he receives letters from various parts of the country claiming that he has made statements that are libelous on certain groups or certain individuals and demanding an apology for it.
If that member of the Court has made no such statements, is he under obligations to — to apologize or to deny that he made any such statements at the peril of being sued for libel and having that offered as sufficient proof to get a $500,000 verdict against him?
Mr. Roland Nachman, Jr.: Your Honor, of course — obviously, I’m not familiar with — with the content of the letter but this letter sir –
Chief Justice Earl Warren: Well, they were —
Mr. Roland Nachman, Jr.: — specified —
Chief Justice Earl Warren: They’re far worse that this one.
Mr. Roland Nachman, Jr.: But — but — this letter Mr. Chief Justice, specified a particular publication by date, they quoted from a part of it. It — and — and in that kind of a circumstance, as distinguished from a general kind of a comment, “you libel me”, so to speak, without any real specification of what was done, I think there would be a distinction sir. But in this case, the demand for retraction actually specified it. It said that you published this ad in the New York Times on March 29, 1960, saying specifically this and it quoted two paragraphs from it, the two paragraphs which were — were discussed at some length yesterday and — and — and referred to the ad as a whole. I believe them that there should be a distinction between a generalized kind of a statement in the letter and — and a statement in the letter referring to a specific publication.
Chief Justice Earl Warren: Well, I’m willing to make it just as specific as you want it to be made, where in fact, the — the person I’ve been talking about has made no such statement. Is he obligated to deny that he said it in order to prevent being sued and — and recovered against for libel.
Mr. Roland Nachman, Jr.: But we — we would contend Your Honor that if somebody is charged with making a specific publication and if it becomes important at a lawsuit later, whether or not he has made this publication, whether he had anything to do with it. That his failure to deny in response to such to a demand can be considered as evidence of the fact that he did actually publish the material that he was charged with publishing. And we don’t say there’s an obligation sir, but we say that — that it is within the rule of evidence that if a person is charged with doing something —
Warren’s “person I’ve been talking about” was, of course, the Chief Justice himself. As the leader of a Court that had issued some notably controversial decisions—the 1954 school desegregation ruling, rulings protecting the civil liberties of suspected subversives, and a ruling striking down school prayer in public schools, among them—the Chief Justice had received a fair share of hate mail. And apparently none of the moved him to feel the need to apologize for his Court’s rulings.