Roland Nachman (left) commemorating the anniversary of Times v Sullivan. Photo: Supplied
21-12-1923 – 24-11-2015
Fifty-five years ago Alabama lawyer Merton Roland Nachman won a libel case against The New York Times but the victory was short-lived – the law was changed by the US Supreme Court, establishing greater leeway for newspapers and individuals to criticise government officials and other public figures.
A prominent figure in Alabama legal circles Nachman became part of history when he agreed to represent L.B. Sullivan, a Montgomery city commissioner who had brought suit against the NYT for an advertisement it published on March 29, 1960.
The ad, a full-page request for financial support for the legal defence of Martin Luther King, who had been charged with felony perjury, and more generally for the struggle for civil rights in the South, appeared under the headline “Heed Their Rising Voices”, a phrase taken directly from a Times editorial 10 days earlier.
Sullivan’s name was not mentioned in the ad but he contended that he had been defamed because his responsibilities included oversight of the Montgomery Police Department. The ad, he said, implied that the police had responded to civil rights protests with intimidation and violence.
At the time, libel was not considered within the purview of the First Amendment’s protection of free speech and a free press, and in Alabama the standard for proof of libel was simple – it had to be shown that a statement had been published, that it had been about the plaintiff, and that it was defamatory, meaning that it stained the plaintiff’s reputation.
Demonstrable truth was a defence against libel but the ad had contained minor errors. Nachman, a moderate who was in favour of civil rights and represented newspapers in the past, nonetheless recognised that he had a winning case. Initially, he was right. After a three-day trial, an all-white jury ruled in favour of Sullivan, awarding him $500,000. In August 1962, the Alabama Supreme Court upheld the judgment.
The oral arguments on the case before the US Supreme Court took place in January 1964. As recounted by the Times columnist Anthony Lewis in his 1991 book Make No Law: The Sullivan Case and the First Amendment, Nachman told the justices: “We say there was ample and, indeed, overwhelming evidence to support the jury verdict.”
But it was also clear that he understood the legal precipice on which the case teetered. In a eulogy, his daughter Linda Connelly said her father told colleagues and family: “Either I will win the case or they will change the law of the land.”
That, too, was prescient. In an opinion written by Justice William Brennan, the court ruled unanimously that the Alabama libel standard “abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments”.
The court further established the “actual malice” standard by which libel cases would henceforth be judged. A state cannot, the court held, “award damages to a public official for defamatory falsehood relating to his official conduct unless he proves ‘actual malice’ – that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false”.
George Freeman, a former Times lawyer who is now the executive director of the Media Law Resource Centre, said Nachman accepted his loss in the Supreme Court with good humour and a sense of irony.
“He usually defended newspapers and was a well-educated political moderate, so representing the segregationist Southern establishment in the person of Commissioner Sullivan was unusual for him,” Freeman said.
New York Times