Justice for All (87 page)

Still, time appeared to be running out for the liberals, as Southern Democrats waged a historic filibuster to block the Civil Rights Bill even in the face of President Johnson's active support. My mid-March, Brennan had concluded that he could not outlast Black's forces, but he continued to try to pick off one vote from the other side, since one defection would be enough to change the outcome. As Black circulated drafts through March and April, he was fighting hard to hold on to his five votes—“a scant and scared majority,” as his wife put it to her diary.
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Brennan responded, circulating dissents, trolling for another ally. The debate grew complicated and fierce, until, on May 15, Clark suddenly announced that he was inclined to side with Brennan. Black was shocked and angry. The conference discussion that day was, in the words of the Brennan clerks, “brief and exceedingly tense, with Justices Black and Clark saying virtually nothing.”
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The matter continued even after that, however, as Clark agreed only to join a narrow ruling that passed on the larger constitutional questions; Douglas, typically, wanted broader strokes, so now Douglas threatened to bolt the liberals even as they edged toward victory. That technical debate, made more emotional by the wrangling among the brethren, finally subsided after a final gasp of acrimony.

On Friday, June 19, Congress passed the Civil Rights Act and sent it to Johnson for his signature. It prohibited discrimination in any place of public accommodation, defined in the act as any restaurant, cafeteria, lunchroom, lunch counter, or soda fountain; any hotel or motel; any movie theater or gas station. Three days later, the Court announced its rulings in the sit-in cases; Douglas had already left for the summer; Black now spoke only for himself, Harlan, and White, having lost Clark and even Stewart in the term's endgame; Brennan delivered the majority opinion in
Bell
. Johnson signed the act, the most important piece of civil rights legislation in American history, on July 2. “Five votes,” Brennan remarked near the end of the session, “can do anything around here.”
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The sit-in cases were explicitly about civil rights and the Court's role in protecting that movement against its opponents. The term's other historic decision also was, at its core, a civil rights case, though its larger impact was on the development of a modern free press.
New York Times v. Sullivan
began with a fundraising advertisement in the
Times
that appeared on March 29, 1960, beneath the headline “Heed Their Rising Voices.”
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The ad charged that Negro protesters who engaged in nonviolent resistance to segregation were being met “by an unprecedented wave of terror,” and it asked readers to contribute money to support the student protesters, to assist in securing the right of Negroes to vote, and to help pay the legal defense bills of Martin Luther King, Jr., in a perjury case.
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In the ad, student protesters were said to have sung “My Country, 'Tis of Thee” on the steps of the Alabama state capitol, for which they were allegedly expelled from school. “Truckloads of police” were accused of ringing the Alabama State College campus, and when the students refused to reregister for classes, “their dining hall was padlocked in an attempt to starve them into submission.” “Southern violators” were accused of directing intimidation and violence at King, who, along with his wife and child, had been bombed, assaulted, and arrested seven times, the ad reported.

Many of those statements turned out to be false, though many were trivially so. The students sang the national anthem, not “My Country, 'Tis of Thee.” They were expelled from school, but not for demonstrating at the capitol; their expulsions were for a lunch-counter sit-in. The dining hall was never padlocked, and though large numbers of the police were deployed during the protests, they never “ringed” the campus. King had been arrested only four times, not seven.
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L. B. Sullivan was one of three commissioners of the city of Montgomery, and though his name never appeared in the ad, he filed the libel suit against those whose names appeared on it and against the
Times
for running it. Sullivan said the ad defamed him because it was widely known that the city commissioners oversaw its police and therefore the ad's misstatements about police actions could logically be inferred to be about him. As to the accusations against “Southern violators,” he argued that because those charges also included references to police action—King's arrests—the ad again implied that he was responsible. Sullivan did not show that he had suffered any damage as a result of the ad—one could argue that it only helped his standing in Montgomery in 1960—but Alabama's juries and courts happily lent their assistance to his campaign against a Northern newspaper in a climate of anger toward “outside agitators.” After a trial in Alabama, the
Times
was ordered to pay Sullivan $500,000 in damages, an award upheld by the Alabama Supreme Court.

That alone threatened the ability of the
Times
to cover news in Alabama, and in the weeks following it, others piled on. By the time the case had reached the United States Supreme Court, in 1964, there were eleven pending libel cases against the paper in Alabama alone, seeking a combined $5.6 million.
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Few doubted who would win those cases in Alabama courtrooms. The effect on the
Times
was potentially devastating; while
New York Times v. Sullivan
was pending, the paper pulled its reporters out of Alabama, achieving precisely what the state had hoped—an end to national attention to its racial policies, at least in the pages of the
Times,
and a portent of diminished coverage by other national news organizations.
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What's more, the
Times
was not the only defendant in the case. Ralph Abernathy, who helped pay for the ad, was sued as well, along with three other civil rights leaders. Their personal financial security was at stake, and the movement depended on drawing attention to its suffering in order to change minds. If innocent mistakes, as interpreted by hostile Southern juries, would be enough to shut down coverage, then the movement itself was in peril.

It was that threat, more than sympathy for the newspaper, that captured Warren's interest and attention. By 1964, he had spent a full decade confronting Southern authorities as they attempted to shut down dissent. He had led the Court through years of keeping the NAACP in the fray, and certainly he would not fold his cards now. The
New York Times
case was argued on January 6, 1964, and Warren, then less than a month away from beginning to take testimony for the President's Assassination Commission, looked to hand it off. Warren turned, as he so often did, to Brennan. For three months, Brennan circulated drafts, trying to articulate a rationale that would dismiss the lawsuit against the
Times
and the other defendants while holding open the possibility that a future public official, confronted with more egregiously bad reporting, might be able to bring and win a libel suit. Through his seven drafts, Brennan settled on the idea of “actual malice” as the relevant standard, meaning that public officials could recover libel damages from news organizations only if the reports about them were not just false but also willfully or recklessly malicious.
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Stories or advertisements about public officials conducting public business could be false and they could be defamatory, and the defendants could still be protected from lawsuits if those false and defamatory statements were innocently made.

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice,' ” Brennan wrote, “that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
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That language set the new standard simply by declaring it, and what the Court did next helped make clear its main objective: to shut down this litigation and others of its type. Rather than send the case back for a new trial in order to determine whether Sullivan could show that the
Times
and the civil rights leaders had in fact acted with “actual malice,” Brennan established the new standard and then simply declared that Sullivan could not meet it. “Since respondent may seek a new trial,” he wrote, “we deem that considerations of effective judicial administration require us to review the evidence in the present record to determine whether it could constitutionally support a judgment for respondent.”
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The Court was not naïve; it well knew what the outcome of a new trial would be. There would be another judgment for Sullivan, upheld again in Alabama's courts, and more years of delay and squelched dissent. So the Court ended the case while it could, freeing the
Times
to return to reporting and the civil rights leaders to resume their work, the work blessed and encouraged by the United States Supreme Court.

New York Times v. Sullivan
freed the press to pursue its momentous coverage of the civil rights movement and greatly strengthened national debate in other areas as well. It was, one scholar noted, “an occasion for dancing in the streets.”
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Over time, some cracks in its edifice undermined that early euphoria. By relying on malice as a standard, the ruling allowed plaintiffs latitude to explore the motives of reporters and editors, an intrusion into newsgathering that press organizations would come to lament. It also sanctioned substandard reporting, as it allowed news organizations to make mistakes without legal consequence, a zone of protection that would be expanded in later rulings, that the press would too often exploit, and that even its defenders would have difficulty defending. Edward Bennett Williams represented the
Washington Post
. He worshipped Earl Warren and cherished their friendship. But even Williams worried about
New York Times v. Sullivan
. When a judge complained to him that the opinion gave the press a “license to lie,” Williams responded, “That's right.”
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Those were long-term consequences, none of them salutary. But in the context of early 1964, the ruling achieved all that Warren and Brennan had hoped: it removed the threat to the civil rights movement, and it kept public attention focused on Southern racism.
Sullivan
was greeted with relief and exultation by the press. The point of
New York Times v. Sullivan
was the same as the point of the stall in the sit-in cases—it was to keep civil rights alive, and it succeeded.

Legislative reapportionment would stand as one of Warren's most significant contributions to the Court and the nation. The deft handling of the sit-in cases would help Congress along its bumpy path toward enactment of civil rights legislation that Warren saw as vital to the nation's development. The protection of speech extended in
New York Times v. Sullivan
would expand the role of an assertive American press, for better and for worse. And yet those monuments of 1964 were, for Warren, backdrops to the excruciating work of determining who killed President Kennedy and how.

 

 

ON JANUARY 20, Warren and Rankin addressed the staff of the assassination commission for the first time. Summoning the majesty of his office and the weight of his own reputation, Warren explained to the lawyers gathered that day at the office that he had reservations about the job, that he had resisted Johnson's entreaties until he felt he had to agree. Warren warned that the nation needed certainty about Kennedy's death, that rumors were dangerous, and that the truth, only the truth, would satisfy the public's need for closure. Truth, he said, “is our only client.”
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Warren meant that gravely, and no one worked harder than he did to direct the Commission's work. Over the coming nine months, Warren often would begin his day reading at home before dawn. He arrived at eight A.M. at the offices of the Commission, where he would work until just before ten A.M. He would then walk down the block to the Court, gavel it to order at ten, and preside over its business for the day. At its conclusion, he would then return to the Commission, often working into the evening or even the early hours of the following morning. He was, one staff member recalled later, a “constant presence,” his devotion to the work nothing less than “heroic.”
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For nearly a year, Warren supervised a nationally scrutinized investigation into the murder of a president without ever missing a scheduled session of the United States Supreme Court. His health paid the price of his diligence. Early that winter, Warren contracted a bronchial infection. It depleted the chief justice for much of the year, leaving him rheumy, congested, and tired.
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Rarely during that entire time was there a break from the pace of the Commission's work. Just two days after Warren met with the staff, Texas officials warned the Commission that they had stumbled upon an explosive rumor—that Oswald had been an undercover FBI agent. In support of that report were tantalizing “facts,” including the monthly payments that Oswald was said to have received and the FBI's identifying number, 179, allegedly attached to him. Warren urgently summoned the Commissioners into a special session of the panel that evening to brief them about, as he told them, “something you shouldn't hear from the public before you had an opportunity to think about it.”
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Commissioners then listened as Rankin laid before them the frightening possibility that the assassin of the president might have been an agent of the government.

The commissioners took the matter seriously. As a group, they conceived a plan to investigate it, both by approaching the FBI directly and by checking it through sources independent of the Bureau. They soon discovered that it amounted to less than it seemed. The source, it turned out, was not one with any special access to classified information but rather a reporter for the
Houston Post,
who had passed it along to a Secret Service agent. By February 24, the Commission had interviewed the reporter and checked the rumor against records and sources and had concluded that it was false.
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To those who believe to this day that the Commission participated in a cover-up, its response to that early rumor is telling. It is true that the Commission had two motives in chasing that report: Commissioners wanted to discover any hidden allegiance between Oswald and the FBI, but they also recognized the implications of such a rumor and they were eager to dispel it. That tension—between the Commission's role in finding the truth and its responsibility for mollifying a frightened public—is what causes some to question whether the Commission would sacrifice truth for peace. In fact, however, that tension proved more hypothetical than real, and in its quest to discover whether Oswald worked for the FBI, the Commission at no time gave any hint that any member was willing to cover up the truth if the rumor proved correct.