Lawyer v. Journalist
Debate at UM recognizes landmark libel case

By Chelsea DeWeese
J-School web reporter

photo by Luke George

University of Montana J-School Dean Jerry Brown (right) moderates the discussion between Anthony Lewis (left), a former Times reporter who covered Times v. Sullivan, and M. Roland Nachman, who was Sullivan's attorney in the case.

Forty years later, major players in the Supreme Court case that redefined libel law are still at odds whether New York Times v. Sullivan has helped or hurt the relationship between journalists and politicians.

Former New York Times reporter and columnist Anthony Lewis and Constitutional law expert M. Roland Nachman debated the implications of the court’s decision before an audience of approximately 100 people  — students, faculty members, local journalists and area residents — at the University of Montana on Oct. 26.

Times v. Sullivan stemmed from a 1960 civil rights advertisement the paper ran called “Heed Their Rising Voices” that addressed segregation in Alabama. The ad contained inaccuracies, and L.B. Sullivan, the police commissioner in Montgomery at the time, won a $500,000 libel suit against the Times in an Alabama state court. The Times appealed the case to the U.S. Supreme Court. The precedent-setting 1964 decision by the Court in favor of the Times places the burden of proof on public officials in libel cases, rather than on the press.

Lewis, currently a visiting professor of media law at Columbia University, said freedom of speech on the whole is in good shape in this new era of journalism. But Nachman, who represented Sullivan, argued that Times v. Sullivan allows the press to be sloppy and turns decent people wanting to run for office into sitting ducks for defamatory coverage.

“My appearance here is a paradox,” said Nachman, who joined in the University Center Theater via speakerphone from his home in Montgomery. “I was invited here not because I won a case, but because I lost a case — New York Times v. Sullivan. The (court’s) decision staggered me.”

Nachman, whom UM School of Journalism Dean Jerry Brown introduced as a lawyer’s lawyer, argued the case for Sullivan at both the state and the federal level.

The key to the New York Times case is that it required public officials — in order to win a libel suit — to prove “actual malice” on the part of the press. Actual malice is a legal term that means the knowledge that something is false or reckless disregard for whether it is true or false. Previously, when public officials brought a libel suit, the burden of proof was on the press to prove the information true.

The decision had unforeseen consequences. Nachman said. Making papers less susceptible to libel suits has discouraged accuracy in the nation’s newsrooms, he said, and the threat of potentially libelous information in media coverage has deterred people from running for public office.

Echoing a sentiment voiced by former Supreme Court Justice Byron White, Nachman said it would have been more effective for the court to establish a ceiling on damages awarded in public official libel cases rather than transfer the burden of proof to public officials.

Lewis, who was visiting UM as a guest for the university’s 2004 President’s Lecture Series, for which he would speak about the war on terrorism later that evening, said it would have been impossible for the court to decide a on ceiling that would be fair to media outlets as well as lone pamphleteers.

A two-time Pulitzer Prize winner in the 1950s and 60s for his national and Supreme Court reporting, Lewis covered the case for the Times.

“(Times v. Sullivan) has many knobs and gnarls and covers quite a bit of ground,” Lewis said.

He said that the precedent set by Times v. Sullivan was important because it gave American media the right to freely criticize the government without fearing financial retribution in the form of libel suits — a privilege journalists in England (where he formerly worked as a Times bureau chief) don’t have.

Lewis said the Times v. Sullivan case was decided in the context of the civil rights movement in the United States at the time, and that some Southern officials at the time tried to scare national media off the civil rights story with the threat of libel damages.

“(They) were out to transform the traditional libel action, designed to repair the reputation of a private party, into a state political weapon to intimidate the press,” Lewis wrote in “Make No Law,” his book about the case. “The aim was to discourage not false, but true accounts of life under a system of white supremacy…”

As for Times v. Sullivan in the current media environment, Lewis said he believes the precedent should not have been expanded to include public figures. The right to criticize public officials, but not public figures, should be a Constitutional guarantee, he said.

Lewis also said the media still plays an important role as a watchdog of the government. The biggest threat to the national press is the national government, he said, because, although libel suits are not the threat they once were, government officials sometimes socially shun zealous reporters and become uncooperative.

“You’re frozen out if you write things the president and his people don’t like,” Lewis said.

Nachman agreed that the responsibility of the press in a democracy is important, but added journalists shouldn’t be able to hide behind the shield of the First Amendment every time they make a mistake. Potentially libelous mistakes need to be prevented in the newsroom, he said, not defended in the courtroom.

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