Abstract
Though legal historian Kermit L. Hall died of a heart attack while swimming on vacation in August 2006, his decades-long study of New York Times v. Sullivan continues to bear fruit with the publication of the latest volume in the Landmark Law Cases and American Society series. President of the State University of New York-Albany when he died, Hall had conducted interviews in the 1980s with many of the key players in the famous legal drama that rewrote American libel law in 1964. He published some of that research, but the bulk of his work on a book about Sullivan remained in his files. Enter Melvin I. Urofsky, a professor emeritus of history and professor of law and public policy at Virginia Commonwealth University, who picked up Hall’s work and crafted the latest interpretation of the iconic case.
Hall and Urofsky appropriately place Sullivan in the context of the civil rights upheaval that dominated the 1950s and 1960s in ways that other books on the case have not. Their work is similar to the most noted scholarship on the seminal libel suit, Anthony Lewis’ Make No Law. But the latter’s book emphasizes more completely the Court’s expansion of freedom of the press, though the context of the civil rights movement is present. In particular, Hall and Urofsky add valuable back story from the point of view of those involved in the lawsuit. Among them is T. Eric Embry, the maverick Alabama lawyer who represented the Times, along with M. Roland Nachman Jr, Sullivan’s attorney. This is perhaps the book’s most significant contribution to the literature, especially since Embry died in 1992, a retired justice of the Alabama Supreme Court, at the age of 70.
The first two chapters of the book lay the groundwork for the trial, and the reader can especially see Hall’s hand in chapter two, ‘Lies, Lies, Lies’, which was the title of an article he published in 2004 (Hall, 2004). Chapter three puts the reader at the trial and covers much of the same ground as Lewis’ narrative. Hall and Urofsky’s contribution here is a more detailed account of the connections between Judge Walter B. Jones and other civil rights-related cases, his close relationship to some of the attorneys involved and his politics as a white supremacist in general. Chapter four, ‘Let ’em See the Dogs Work’, offers a basic overview of the best-known incidents in the civil rights struggle. Chapter five discusses Sullivan’s companion cases, the chilling effect they had on press coverage of the movement, and the appeal to the Alabama Supreme Court, aptly described as a ‘hostile court dead set against civil rights’ (p. 99). Chapter six is for the most part a relevant and layman-friendly tour through key areas of free speech, from the Alien and Sedition Acts of 1798 to incitement to fighting words. Chapters seven, eight and nine are reminiscent of Woodward and Armstrong’s The Brethren, which is the most noted behind-the-scenes account of the Supreme Court in action where justices maneuver, compromise and politick as part of the process of reaching decisions. And in this case, the authors explore Times’ attorney Herbert Wechsler’s detailed briefings and the now-famous argument that the First Amendment protects criticism of the conduct of elected or appointed government officials. This was quite a novel argument at the time since the high court typically left libel law under the purview of the states.
For serious students of libel in general and the Sullivan case in particular, the use of a bibliographic essay rather than detailed footnotes might be a bit disappointing. But the editors of this series have been deliberate in their decision to make these volumes inexpensive and geared toward more general readers. And while the authors offer some new material on the four African-American ministers who were also named in companion suits after their signatures appeared at the bottom of the offending ‘Heed Their Rising Voices’ advertisement without their knowledge, detail on these men as civil rights leaders is lacking. According to the white establishment, they were troublemakers and rabble-rousers. As such, this narrative might have benefited from a detailed look at the civil rights struggle through their eyes given that the thrust of the authors’ thesis is that Sullivan was a civil rights case as much as it was a libel case. Also beneficial would have been more detail on Sullivan’s role as a heavy-handed enforcer of the racial status quo. Most troubling, however, is a thin conclusion that is not representative of the book, where the authors argue that, among other things, there were vast differences between notions of reputation as honor (the South) and property (the North), and that the high court rejected ‘the South’s most enduring contribution to the body of law, the notion that habits and manners of civility should govern civic discourse’ (p. 206). It is unclear from this writing where such generalities originate and how they connect to Sullivan as a civil rights case.