Make No Law
Flaherty, Francis
GREAT CASE, DULL STORY MAKE NO LAW The Sullivan Case and the First Amendment Anthony Lewis Random House, $25, 354 pp. Francis Flaherty “Heed Their Rising Voices," said the fullpage ad in...
...The law took its stately course and, four years later, in New YorkTimes v. Sullivan, a unanimous Supreme Court revolutionized the law of free speech...
...For legal reasons, the Times kept correspondents out of Alabama for a year after the Sullivan suit was filed...
...It is a bright star in the First Amendment firmament, a bulwark of press freedom...
...But that's exactly what the Times got in Herbert Wechsler, Marvin Frankel, and other members of its legal team...
...New York Times columnist Anthony Lewis can write good stories about great cases...
...More broadly, the Justices bestowed great protections on the press from powerful politicians...
...Lewis had that rare find, a case that was both...
...Its main themes, free speech and civil rights, are two of the defining subjects of the republic...
...In Gideon's Trumpet Mr...
...And so, with optimism, I turned to Make No Law...
...But its importance is undisputed...
...New York Times columnist Anthony Lewis has written an adequate book about this landmark case...
...One need only turn to Gideon's Trumpet, his powerful account of a 1963 Supreme Court ruling about the right to counsel...
...In measured and majestic terms, the Court then did the unthinkable: it constitutionalized 24: 17 January 1992 Commonweal libel law...
...made possible the investigative mode of journalism used during the Vietnam war and the Watergate scandal...
...Its cast includes a great newspaper, Southern segregationists, civil rights leaders, and constitutional scholars...
...Lewis ably argues: The aim was to discourage not false but true accounts of life under a system of white supremacy: stories about men being lynched for trying to vote, about cynical judges using the law to suppress constitutional rights, about police chiefs turning attack dogs on men and women who wanted to drink a Coke at a department store lunch counter...
...The volume is serviceable, but these defects make reading it very rough going...
...Sullivan ushered in a new era for the Constitution and for the press...
...Swayed, the Supreme Court spoke in its 1964 opinion of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open...
...To persuade the Supreme Court always chary about treading on state sovereignty— to change this venerable rule would take compelling vision and great lawyering...
...Lewis is forced to expand on the unexceptional...
...The problem is a common one in legal literature: Cases that make great law don't always make great stories...
...Thus, to dramatize the undramatic, Mr...
...In short, the suits were a savage strategy to silence the press...
...Worse, there were a slew of other libel suits pending over the ad, with a collective $3 million claimed in damages...
...Sullivan, a city commissioner in Montgomery...
...Francis Flaherty “Heed Their Rising Voices," said the fullpage ad in the New YorkTimes of March 29, 1960...
...Sometimes these contrivings just seem silly: "Justice Brennan interrupted to say, `I am sorry...
...Bringing libel under the mantle of the First Amendment, the Court recognized the critical connection James Madison saw between free speech and self-governance, and conferred on libel procedures protections commensurate with that vital nexus...
...and gave the Court's imprimatur to the Madisonian theory of the First Amendment —that the core aim of the provision is to ensure the free and unfettered political discourse that is the sine qua non of democracy...
...Lewis also takes us on forays into First Amendment history so extended that this reader wondered if we would ever return to the case that the title promised was the subject of the book...
...He portrays well the tense times that produced it, and he demonstrates convincingly its great importance...
...That was a princely sum then, and the Times was not rich...
...It was to scare the national press—newspapers, magazines, the television networks— off the civil rights story...
...I am having difficulty hearing you.' This was unusual, and perhaps a sign of unusual attentiveness to this case...
...indeed, in a memo to Times employees early in the case, one of the paper's lawyers didn't even mention the First Amendment as a possible defense...
...But appearances can be deceiving...
...Libel was solely a state concern at the time...
...Its doctrine has been expanded and refined through the years, and criticized too, as lawyers and journalists try to find ways to streamline the complex and somewhat intrusive procedural requirements of the case...
...Commonweal 17 January 1992: 25...
...Or: "On March 3, Justice Brennan circulated a fifth draft of his opinion...
...Meanwhile, CBS and other news enterprises were similarly sued for their civil rights coverage and, within a few years, Southern officials had lodged a daunting $300 million in libel suits against the media...
...The ad triggered politically motivated libel suits by several Alabama officials, including one L.B...
...Had they worked—and the chances looked good they would—the civil rights movement might have stopped or slowed...
...While the case may make for high drama on the stage of history, it simply is not the stuff of a good tale...
...Technically, the Court imposed new evidentiary and procedural rules on libel suits brought by public officials...
...Hardly edgeofthe-seat stuff...
...And when the Montgomery commissioner won $500,000 from a friendly Alabama jury, the Times swallowed hard...
...Reaching deep into our traditions, unearthing basic but half-forgotten principles, the lawyers found a way to convince the high court that the Southerners' libel gambit was fundamentally antithetical to the nation's most cherished values...
...But with New York Times v. Sullivan, he would have been better advised to write a thematic essay...
...Yes...
...They had no inkling, though, that it marked the start of a second epic battle, one also at the heart of the country: free speech...
...But so it did...
...And scare the press it surely did...
...New York Times v. Sullivan seems a natural for a good read...
...But, while that was the legal assertion of the Southern politicians piqued by the Times ad, that is hardly what the case was about...
...Or perhaps it was a sign that, well, Justice Brennan was having difficulty hearing...
...By libel, lawyers mean an actionable falsehood that injures someone's reputation...
...For example, one chapter details the differences among the eight drafts of Justice Brennan's Supreme Court opinion: "Eleven days later, on February 17, Justice Brennan circulated a third draft among his colleagues...
...Taking its title from a recent editorial in the newspaper, the ad praised Southern black students who were fighting for civil rights and urged their protection from a segregationist "wave of terror...
...Writers and readers of the ad knew it spoke to the preeminent issue of their time...
...Anyone who can turn a potentially arid legal discussion into a masterful story and a Hollywood movie (starring Henry Fonda, no less) is doubtless a deft craftsman...
Vol. 119 • January 1992 • No. 1
