The Civil Rights Heroes the Court Ignored in New York Times v. Sullivan

by Garrett Epps

Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

I’m late to the 50th birthday party for New York Times v. Sullivan— deliberately so. It’s no fun to be the sourpuss.

Sullivan has been celebrated by top legal and media figures from the moment it was decided until its half-centenary this month. Alexander Meiklejohn, the philosopher, called it at the time “an occasion for dancing in the streets.” In his meticulous 1992 book, Make No Law: The Sullivan Case and the First Amendment, famed Supreme Court reporter Anthony Lewis wrote that the case “gave [the First Amendment’s] bold words their full meaning.” And a few weeks ago, University of Chicago Professor Geoffrey Stone wrote that, whatever its flaws, Sullivan “remains one of the great Supreme Court decisions in American history.” The New York Times itself, the winner of the case, congratulated the nation and the Court on “the clearest and most forceful defense of press freedom in American history.”

I used to be a newspaper editor. I was dealing with libel threats at my college paper before I was old enough to vote. So I’m grateful for Sullivan’s broad protection of free speech and press. The Court’s decision defused an existential threat to press freedom—a systematic campaign (detailed well by Lewis in Make No Law) to drive the major networks and papers out of the South by using local libel laws to bleed or bankrupt them. The Court was wise to stop that cold.

And yet ... and yet.

There are some ghosts at the Sullivan feast. Here are their names: Ralph David Abernathy, S.S. Seay Sr., Fred L. Shuttlesworth, and J.E. Lowery....

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