“If Madison Were Alive Today….” Oral Arguments in New York Times v. Sullivan

It was fifty years ago that the Supreme Court considered the case of New York Times v. Sullivan. The landmark First Amendment ruling arose when defenders of segregation in Alabama used their state’s libel law to strike out at the civil rights movement. In the spring of 1960, as the student lunch counter sit-in movement spread across the South, allies of Martin Luther King Jr. ran a full-page fundraising advertisement in the New York Times designed to elicit donations to cover his considerable legal expenses. (King was being prosecuted in Alabama on charges of tax evasion and perjury.) In condemning Alabama law enforcement’s treatment of King and student protesters, the advertisement made some misleading or factually inaccurate statements. Several Alabama officials, including L.B. Sullivan, Montgomery’s commissioner who oversaw the police, sued under the Times, along with four African American ministers who had been listed as endorsing the advertisement, for libel. Sullivan won a $500,000 jury verdict, the Alabama Supreme Court upheld the verdict, and the case was appealed to the U.S. Supreme Court. On January 6 and 7, 1964, the Court heard oral arguments in New York Times v. Sullivan and its companion case involving the black ministers, Abernathy v. Sullivan.

Oral arguments were notable for several reasons. One was the stature of the lawyers who argued the case. The Times was represented by Herbert Wechsler, a law professor at Columbia and one of the most prominent legal scholars of his day. The minsters were represented by William P. Rodgers, who had served as Attorney General in the Eisenhower administration and would later serve as Secretary of State in the Nixon administration. (Sullivan’s attorney, Roland Nachman Jr., was a well-respected attorney in Montgomery, but had nowhere near the national reputation of his opponents.) The fact that Dr. King himself was in the courtroom for oral arguments further added to the drama of the scene.

Another interesting dynamic that unfolded in oral arguments was the way in which the elephant in the room of the case—the fact that this particular libel suit was a transparent effort to undermine the civil rights movement—appeared and disappeared over the course of the argument. Unlike most of the cases that emerged from the civil rights movement, there was nothing about the applicable law here that was racially discriminatory on its face. (In fact, Nachman had previously used the very same libel law to secure a verdict for an African American plaintiff.) What was distinctive about this case was not the law, per se, but the way it was being used—as a weapon against those who were fighting for racial equality. Rogers, representing the black ministers, pressed the issue to the fore. At the beginning of his arguments, he stated what he saw as the real issue of the case:

“The petitioners are not in truth being punished for what they did or failed to do in this case or what they said and did elsewhere and who they are. That the central fact of this case is that they are being—drastically punished because they were Negroes residing in Alabama, who’ve had the courage to speak out in the struggle to—to achieve the rights guaranteed by the Constitution for all citizens regardless of race or color.”

Wechsler, by contrast, in defending the New York Times, largely bypassed the civil rights implications of the case, preferring to emphasize the broader First Amendment values at stake. It was this approach that led to the following striking moment, when Wechsler sought to channel the ghost of James Madison:

Justice William J. Brennan: — through official conduct, are there any limits whatever, which take it outside the protection of the First Amendment?

Mr. Herbert Wechsler: Well, if I take my instruction from James Madison, I would have to say that within any — any references that Madison made, I can see no toying with limits or with exclusions. I — I think –

Justice William J. Brennan: (Inaudible) to say then that the — if the First Amendment gives it to — in effect on absolute truth (Voice Overlap) —

Mr. Herbert Wechsler: The proposition is that the First Amendment was precisely designed to do away with seditious libel. And seditious libel was criticism of it in punishment for criticism of the Government and criticism of officials.

Justice Arthur J. Goldberg: This applies to the (Inaudible)

Mr. Herbert Wechsler: Exactly.
Of course, or any —

Justice Arthur J. Goldberg: And it was not — were not arguing here (Inaudible) rule that applies (Inaudible)

Mr. Herbert Wechsler: Certainly not. We’re talking about the full ambit of the First Amendment. Now, I realized the weight of this argument at this time, the Sedition Act was never passed on. But on the other hand, as I see our case, we’re in the same position that the contempt cases were in, in the 1940 when the scope of the contempt power had never been considered by this Court, when obscenity was here and that issue had never been considered. In — in short, this is a field of constitutional interpretation which is 35 years old, that is a fact of life.
And this is the first time that we have had — that the opportunity has arisen to make this submission in this Court.
But I believe that if James Madison were alive today, so far as anything that I can see, in anything he wrote or — and particularly in the report on the Virginia resolutions that the submission that I am making was a submission he would make.


Two months after oral arguments, Justice Brennan announced the unanimous opinion for the Court. In light of “the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” the Court held that the libel suit infringed the defendants’ First Amendment rights. In order for a public official to sue for libel, the statements at issue must be made with “actual malice,” an extremely high standard that would largely immunize newspapers and others from being held liable for inadvertent factual inaccuracies that portrayed public officials in a negative light.

In emphasizing the historical foundation for this transformative ruling, Brennan took Wechsler’s cue and turned to James Madison. Brennan’s opinion quoted Madison’s views on free speech at length and concluded that Madison viewed “[t]he right of free public discussion of the stewardship of public officials” to be “a fundamental principle of the American form of government.”

This post is the latest installment in Professor Schmidt’s series, “Drama in the Court.” If you have a suggestion for his next case to cover, let him know!

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