MLK's First Amendment Legacy

Their Rising Voices Sang Alongside Martin Luther King

Their Rising Voices Sang Alongside Martin Luther King

If I were to write about Martin Luther King, Jr.’s contribution to civil rights, I think I would be wasting my time. Far more qualified views are out there, especially today.

However, I feel like it is worth mentioning that he had a part in a profound change in favor of Civil Liberties as well. I speak of nothing less important than N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).

That case is the foundation upon which stands most of our modern First Amendment jurisprudence, without which we would not have modern investigative journalism, the right to express our opinions, nor very likely much content on this blog.

That case concerned an advertisement that ran in the New York Times in 1960. The ad, titled “Heed Their Rising Voices,” stated: “As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.” The ad went on to state that “In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom.” The ad illustratse the “wave of terror” by describing events that took place across the South, concluding with an appeal for donations in order to support the right to vote, the student movement, and Martin Luther King, Jr.'s legal defense fund.

There were indeed some slight inaccuracies in the ad. L.B. Sullivan, a Montgomery, Alabama City Commissioner sued the New York Times for libel, claiming that the advertisement targeted him. The Alabama state court held in his favor, and awarded him $500,000. This was unsurprising given the time, place, and jury makeup.

In writing for a 9-0 majority, Supreme Court Justice William Brennan wrote:

[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent. N.Y. Times Co., 376 U.S. 254, 271.

How beautiful that language is. The Court went on to reject any notion that the burden of proving truth is laid at the feet of the speaker. Id. And even though the advertisement had some minor errors, New York Times v. Sullivan held that if there is to be wide open and robust debate, the First Amendment needs “breathing space” in order to survive. And in order to impose liability for merely erroneous reports on political conduct reflects the “obsolete doctrine that the governed must not criticize their governors.” Id.

The ad was, according to the Court, “an expression of grievance and protest on one of the major public issues of our time.” N.Y. Times Co., 376 U.S. 254, 271. And since the decision, it has only gained more traction and more strength, being firmly entrenched to the point that one can not usually write a brief defending a defamation case without citing to Sullivan. Similarly, one should not bring a plaintiff's side defamation case without seeking to avoid its shores upon which many a censorious asshat finds his ship dashed.

This leaves the American press wildly free — at least in theory.

But for Dr. King’s struggle, we would never have had New York Times v. Sullivan. It may not have been a case or event central to his legacy, but it is central to our profound national commitment to wide-open and robust debate.

In this day and age those who seek to promote Civil Rights often seem to be at odds with Civil Liberties. The First Amendment is seen as the enemy to the "Social Justice" crowd. Today, I try and remind them that there was a time when Civil Liberties and Civil Rights were symbiotically joined.

Lets remember that, on this day set aside to honor Dr. King.

Last 5 posts by Randazza

Comments

  1. says

    The liberalization of free speech and the African-American struggle for justice went hand in hand. Cases holding that various means of silencing or intimidating opponents of white supremacy and segregation violated the First Amendment include:

    Shuttlesworth v. Birmingham, 394 US 147 (1969)
    Adderley v. Florida, 385 US 39 (1966)
    Dombrowski v. Pfister, 380 US 479 (1965)
    Cox v. Louisiana, 379 US 536 (1965)
    Bouie v. City of Columbia, 378 US 347 (1964)
    NAACP v. Button, 371 US 415 (1963)
    Shelton v. Tucker, 364 US 479 (1960)
    Bates v. Little Rock, 361 US 516 (1960)
    NAACP v. Alabama ex rel. Patterson, 357 US 449 (1958)

    Also noteworthy are Hamm v. Rock Hill, 379 US 306 (1964), Edwards v. South Carolina, 372 US 229 (1963), and Garner v. Louisiana, 368 US 157 (1961). In each of those, the court overturned convictions of civil-rights protesters, though not on first-amendment grounds. Let's not forget Street v. New York, 394 US 576 (1969), overturning the conviction of a flag burner protesting James Meredith's murder.

  2. Jim Tyre says

    In writing for a 9-0 majority

    Hmm, Marc, I don't think I've ever heard it phrased quite that way. '-)

  3. Iain says

    @Sylocat. There is a theme going round (some sections of) that crowd, that free speech on particular topics is harmful and ought to be limited. If you are new here and in need of links, I can oblige.

  4. solo Atkinson says

    @Syslocat Popehat targets specific sections of the progressive movement that are muddy on free speech. Their aim is hair-sharp. They don't bother the others. It takes a lot of discipline to do this. Appreciate!

  5. Taliesyn says

    @solo Atkinson It would be less annoying for those who identify as liberals or progressives if his pot shots weren't ONLY aimed at the "Social Justice" crowd. It makes him come across as just another reactionary MRA knuckle-dragger afraid that the big bad feminist conspiracy is getting ready to show up and lop off his gonads.

  6. says

    Give him a year, Talisyn, and I'm sure we'll find him participating in next year's Blasphemy Round-up.

    Attacking freedom of speech is the tactic of the <a href="http://www.paulgraham.com/say.html&quot; powerful and the insecure. At this time and in certain places, that happens to be the social justice set.

    I mean, are there people or political affiliations trying to fight free speech that you see being overlooked? If so, bring them up!

  7. Argentina Orange says

    @Taliesyn

    It makes him come across as just another reactionary MRA knuckle-dragger afraid that the big bad feminist conspiracy is getting ready to show up and lop off his gonads.

    What a charitable interpretation. I'm sure that just as soon as an MRA starts writing "Dear Colleague" letters or pulls a Van Valkenburg v. Gjoni, that Marc will be bashing them even harder. Hell, Ken will probably write an amicus brief in the latter case.

  8. Sami says

    I think some of the problem with the perceived hostility to free speech from social justice advocates is really a matter of addressing the wrong problem.

    Because there's this cycle:

    10 Someone says something really offensive, be it racist/misogynistic/whatever.
    20 Social justice advocates point out that what they said is offensive and that they shouldn't say that thing.
    30 OMG SJW CENSORSHIP SJW OVERSENSITIVE SJW LIBERAL FASCISTS SJW SJW SJW SJW SJW
    40 CRITICISM IS OPPRESSION
    50 FREEEEEE SPEEEEEECH I CAN SAY WHAT I WANT
    60 Well, apparently it's censorship and oppression if we try to get these dickwads to choose not to say this shit, and they're not going to stop on their own… so maybe they shouldn't be allowed to.
    70 SJWS HATE FREEDOM EVERYONE IGNORE THEM
    80 GOTO 10

    A better response would be to tell the relevant dickwads to grow the fuck up. It is not censorship if someone calls you out for being an ass. It is not censorship if people call for boycotts of your media platform, even if that costs you your job, because the only way to get racist/misogynistic/whatever dickwads off air is to make them commercially unviable. Welcome to the free market. If you want to keep your media job, it's up to you to be a saleable media product.

  9. Castaigne says

    @Sami:

    A better response would be to tell the relevant dickwads to grow the fuck up.

    *dismisses* They'll never grow up. The same people doing edgelord crap now are the same people doing it back in the 1990s. They think SWATting and the like are maximum lulz or top kek or whatever the chan slang is these days.

    There's really no solution for these people. You either have to let them totally win and destroy you or you have to salt their earth. It's sad, but that's the way it is.

  10. birdboy2000 says

    @Taliesyn

    Maybe this is because of a certain segment of the feminist movement which equates any criticism of authoritarianism done in their name with "being a reactionary MRA knuckle-dragger".

    I'm well to the left of the current progressive movement and I'm 100% fine with this. Authoritarians are authoritarians whether they act in the name of the right or the left, and the end result is the same.

  11. says

    @ Argentina Orange:

    What a charitable interpretation. I'm sure that just as soon as an MRA starts writing "Dear Colleague" letters or pulls a Van Valkenburg v. Gjoni, that Marc will be bashing them even harder.

    Damn fucking skippy I will.

  12. Coward says

    @sami

    So the people who need to grow up are the ones who said something awful and then said mean and stupid things when criticized not the people who had a tantrum (with no authority of any kind) thrown at them and responded by saying, "it should probably be illegal for those people to talk; let's make some laws that will definitely be abused by those who enforce them!" that's what you're getting at?

    Yeah, the MRA set are children; especially when their feelings are hurt. The hardline SJW set makes themselves out to be worse when they expect that speech should be made illegal because it causes some kind of special hurt feelings when their feelings are hurt.

  13. Taliesyn says

    Oh, don't think for a minute that I'm one of the idiots who think that speech I disagree with should be censored. I never have, nor will I ever do so.

    The point, however, is that Marc (and apparently quite a few of the rest of you) shows nothing but contempt for progressive ideas or speech, immediately dismissing even the mildest of left-leaning discussion as 'Social Justice' worthy of nothing but scorn. Neither he nor you show that same level of disgust or contempt when discussing (or even opposing) people on the Right demanding that Muslims be tagged and barred from entering the country, that LGBT people be disallowed the right to marry, copyright trolls (including folks working as copyright trolls while shutting down other copyright trolls), or even the assorted SLAPP cases we read about here constantly.

    THOSE are all approached with a certain degree of seriousness, but the instant the topic changes to ANYTHING involving feminism, LGBT issues, or anything else traditionally progressive, the contempt and disgust just POURS forth. Whether it's the blatantly partisan rhetoric that "The First Amendment is seen as the enemy to the "Social Justice" crowd" or referring to closeted gay teens getting outed by his actions as 'little shits' who should just lie to their parents, his continual disgust and contempt for anything that can be seen as Liberal or Progressive gets annoying. Especially coming from someone I had respected for his First Amendment work.

    And for those butthurt by the MRA reference, perhaps you should consider that it was made with malice aforethought, to give you a basis of comparison. :-) I will say that the use of "SJW" is right up there with "Republitard", "Demoncrat", "Lieberal", "Cuntservative", "Libtard", and the like in the ability to show that the speaker is entirely closed-minded, unwilling to accept that any opinion other than their own has validity, and that they feel those who disagree with them are in some way 'beneath' them. Makes it easy to spot the Clarks.

    (Also, I do find it interesting that even the slightest bit of feminist or progressive idealism warrants a contemptuous dismissal as a fanatical, overblown, "Social Justice Warrior" who is a threat to all things American, but Men's Rights Activism (which even MRA's acknowledge is about stripping women of political and societal power) is perfectly accepted, and even defended here.)

    Oh, and Argentine Orange: Oh, so some terrible liberal wrote Dear Colleague letters? What a horrifying thing. Poor boy, perhaps they should instead have done the MRA thing and killed 7 people and wounded 14 more because they weren't being granted the sex they deserved? Maybe had their friends go on about how it was justified because SJW's were preventing them from getting laid?

  14. says

    @Taliesyn – well this is a bit scattershot

    The point, however, is that Marc (and apparently quite a few of the rest of you) shows nothing but contempt for progressive ideas or speech, immediately dismissing even the mildest of left-leaning discussion as 'Social Justice' worthy of nothing but scorn. Neither he nor you show that same level of disgust or contempt when discussing (or even opposing) people on the Right demanding that Muslims be tagged and barred from entering the country, that LGBT people be disallowed the right to marry, copyright trolls (including folks working as copyright trolls while shutting down other copyright trolls), or even the assorted SLAPP cases we read about here constantly.

    THOSE are all approached with a certain degree of seriousness, but the instant the topic changes to ANYTHING involving feminism, LGBT issues, or anything else traditionally progressive, the contempt and disgust just POURS forth. Whether it's the blatantly partisan rhetoric that "The First Amendment is seen as the enemy to the "Social Justice" crowd" or referring to closeted gay teens getting outed by his actions as 'little shits' who should just lie to their parents, his continual disgust and contempt for anything that can be seen as Liberal or Progressive gets annoying. Especially coming from someone I had respected for his First Amendment work.

    I am setting aside "Quite a few of the rest of you" (are you addressing the authors? commentors? Both? It's not possible to say with certainty). You appear to be conflating Marc's and Ken's reactions to things. It's not really valid. Marc hasn't been here very long. He might treat some of those subjects in a different manner than Ken, but in a manner that's wholly consistent with how he goes about his work. Differences in tone are to be expected when Ken's criteria for asking people to come be a part of the site did not include "react to all things in a manner similar to me". Each of us (even those of us who don't blog very often) employs the various tools of the trade in manners of our own choosing. The variety was certainly part of our draw, for Ken.

    With Clark having moved on to a new home, there's not anyone here that's an "MRA defender"; Marc does not strike me as such (calling out ridiculousness amongst enemies of MRA does not make one an ally. I could be mistaken on his position, of course). Though it's probably worth pointing out for posterity's sake "Clark did not take a side on the issue".

  15. says

    I can't possibly express how happy I am that the same stupid tropes that right-wing shitheads threw at me when the Right was the enemy of free speech are now being repeated almost verbatim by left-wing shitheads.

    Taliesyn's comment makes me happier than fan mail. Well, on one level. The poor reading comprehension skills make me sad that it is more proof that Idiocracy is a documentary.

    EDIT: I get a kick out of how he whines that I am not sufficiently caustic when it comes to taking the ass out of opponents of gay marriage.

  16. Eltargrim says

    @Grandy:

    calling out ridiculousness amongst enemies of MRA does not make one an ally

    To wit: the enemy of my enemy is my enemy's enemy.

  17. Matt W says

    @Grandy
    But it's hard to deny that "The First Amendment is seen as the enemy to the "Social Justice" crowd" is some reactionary bullshit. I've never met a single Republican who was a card-carrying member of the ACLU. Indeed the ACLU is seen as one of the public faces of liberalism in the U.S., generally a target of scorn from the same folks who hate social justice and political correctness, despite being an organization that vociferously defends free speech, even over-against putative liberal values. Clark used to hand-wave away the very real argument that "SJWs" are also engaging in free speech when they organize boycotts and engage in public shaming, by stipulating that they were cultivating a "public culture" that rejected free speech. This is hogwash and nothing more than the ages-old conflation of criticism with censorship that plagues every discussion of free speech anywhere in America.

    Clark wrote an entire very long article defending #gg wherein he placed its critics firmly in the sweep of history with brutal totalitarian despots and indulged ludicrous conspiracy theories (Maybe Quinn was making up her harrassment? Maybe Sarkeesian cancelled that speech for publicity? Maybe that bastion of uber-liberalism, videogaming press, coordinated their coverage of the issue? Who knows?) that come from the darkest recesses of the MRA lairs. It's a real stretch to say that he didn't take a side.

  18. TimothyAWiseman says

    Thank you for the reminder of some of the background to NY Times V. Sullivan and MLK's role in it. It is one of the more important opinions to come out of the Supreme Court

  19. says

    @ Matt W

    But it's hard to deny that "The First Amendment is seen as the enemy to the "Social Justice" crowd" is some reactionary bullshit.

    It's a direct response to the idea that there are progressives (real or imaginary) who believe they have a fundamental right not to be offended, and idea that needs to be mocked for moral and scientific reasons. That idea has come up here. A lot. Well before Marc's time here. I am not interested in whether you find the actual language inflammatory, though. I mean, it's a valid talking point but it's not one I care about. Each author at Popehat is a seeks to master his or her own style of martial art.

    Clark wrote an entire very long article defending #gg wherein he placed its critics firmly in the sweep of history with brutal totalitarian despots. . .

    Ahhh, I think I see the problem. I will quote the original text.

    Though it's probably worth pointing out for posterity's sake "Clark did not take a side on the issue".

    To sort of borrow from Leonard Nimoy (RIP), "we don't ask ourselves who will get the joke. We make the joke and then trust everything will get sorted eventually". I'll simply note my use of double inverted commas in that comment was not a quotation of direct speech.

    In any case Clark does not write here any longer, a point which I already made. If you want to dwell on what he wrote while he was here, might I suggest you check out his new digs?

  20. Matt W says

    Well shucks. Well and fairly skewered by my own righteous indignation, I creep off to the doghouse to lick my shattered nuts in desolate chagrin. Note to self: Stay off the goddamn keyboard until you can harvest some perspective from the coffee grounds at the bottom of your morning cuppa.

  21. birdboy2000 says

    @Matt W

    The idea that a couple people may have been less than truthful is hardly a wild conspiracy theory. (Although personally, I consider it far more likely that they misidentified the people sending them anonymous threats – heck, I've done that myself.) Nor is the idea that press outlets repeated falsehoods to smear a protest movement – they did it plenty with Occupy, and Black Lives Matter, and the Antiwar movement, and the Tea Party (much as I dislike them) and damn near every other protest group in this country's history..

    The idea of tens of thousands of people engaged in a boycott of Gawker Media, Vox, and other press corporations over their editorial line and repeated conflicts of interest are in reality a massive conspiracy to harass women out of gaming, on the other hand, is hard to describe as anything but a conspiracy theory.

    Like many in Gamergate, I'm on the political left. I never saw Republicans as anything but enemies of civil liberties – but these last 16 months have taught me how many Democrats (although thankfully, few of them in public office) are no better. (And honestly, Clark's pieces on the subject made me cringe; the stuff he advocates for is absolutely not a direction I want this movement to take.)

  22. Rich Rostrom says

    The case of France 2 v. Karsenty is relevant, though it did not take place in the U.S.

    In 2000, the news program of France 2 (a French public TV channel) broadcast a segment by their Jerusalem correspondent Charles Enderlin alleging that Israeli troops in the Gaza Strip fatally shot Mohammed al-Durah, a 12-year-old Palestinian boy. France 2 showed video footage of the supposed shooting taken by Palestinian "stringer" Talal Abu Rahma. Though even this broadcast acknowledged that the shooting (if it was real) had happened when an Israeli outpost responded to rocks and firebombs from a Palestinian mob, and gunfire from Palestininan police, Enderlin asserted that the Israelis had intentionally shot the boy.

    This report had a huge impact. It was repeated with complete credulity by numerous media channels, including NPR, the Guardian, TIME, and Le Monde. One prominent European intellectual described it as the moral equivalent of the Warsaw Ghetto. Al-Durah became the literal poster child of the Second Intifada, and was cited by many attackers of European Jews. It was used in recruitment by Al-Qaeda, and cited by the murderers of Daniel Pearl.

    However, by 2002, some Israelis and other observers questioned the accepted narrative, pointing out the many problems with Talal's footage and the claimed sequence of events. Some described it as staged; others asserted that the fatal shots must have come from the Palestinian side.

    In 2004, French media monitor Philippe Karsenty published an article denouncing the report as a fraud by Palestinians with Enderlin and France 2 as willing dupes, and demanding the resignations of Enderlin and France 2 news director Arlette Chabot.

    Then, as previously threatened, Enderlin and France 2 sued Karsenty for defamation, eventually winning a judgement of 7,000 euros.

    IOW, France 2, an arm of the state, used defamation law to attack a critic of its speech.

    What this means: If A asserts something as fact, and B disagrees, A can sue B for defamation, libel, or slander. If A has more money and lawyers, A can punish B or force B to retract.

    The potential "chilling" effect on speech should be obvious. Also the analogy to N.Y. Times Co. v. Sullivan.

  23. Manta says

    @Rich, I don't see the problem with the case you are quoting (as you described it): if A claim that B made stuff up, B has every right to sue A for defamation. Then the courts will decide on the merit.

  24. says

    @Matt W

    Well shucks. Well and fairly skewered by my own righteous indignation, I creep off to the doghouse to lick my shattered nuts in desolate chagrin. Note to self: Stay off the goddamn keyboard until you can harvest some perspective from the coffee grounds at the bottom of your morning cuppa.

    Well none of it was said with bad intent, if it makes you feel any better. Also, it can be easy to miss contextual clues!

  25. says

    My gripe about Marc's snotty little closer isn't that I don't believe there are people on the left who support censorship. Censorship has always had bipartisan support (and, to be fair, bipartisan opposition). This is not a recent development.

    My gripe is (1) the use of the phrase "social justice" (in scare quotes) as a pejorative dog whistle and (2) the outright trolling.

    To (1): using "social justice" as a pejorative is similar to using "feminist" as a pejorative: it defines a huge, diverse group in terms of the most extreme elements of the group, and seeks to discredit everybody in the group on the basis of that generalization.

    Does every advocate of social justice also advocate censorship? No. Do the majority of advocates of social justice also advocate censorship? Well, I suppose we'd need a scientific survey to prove that one way or the other, but I am pretty skeptical that that's the case. I think it's a loud minority.

    I think Marc is right to criticize and mock that loud minority. But I think he is wrong to exaggerate its size and influence, and to implicitly paint all social justice activists with the same broad brush.

    And to do it all the damn time, including at the bottom of a post talking about a completely unrelated subject.

    To (2): well, just look at the comments section. How many comments refer to Dr. King or NYT v Sullivan? I count exactly one. The rest are people arguing over that penultimate paragraph.

    Marc's not stupid. He knew that was exactly what was going to happen when he put his favorite shibboleth in there.

    Which makes it hard to believe that he really wanted to talk about Martin Luther King or NYT v Sullivan. He just wanted to stir up a hornet's nest in the comments section.

    Anyone can stir up a hornet's nest in a comments section. It is not a difficult task, and does not require any skill. It's boring, it's lazy, and it's a waste of Marc's talents. He wrote a thoughtful article and then ended it with something that was designed to piss people off and get them to talk about another subject entirely. Obviously he's got a right to post whatever the hell he wants however the hell he wants, but I find it disappointing every time he shifts from substantive issues to taking distracting potshots.

  26. tehy says

    the problem with Thad's assertion that this is a 'loud minority'

    why aren't you attacking the toxic minorities within your own movement?

    probably because they're either stronger than you or because you think it's OK to sacrifice certain things because the ends justify the means; perhaps a mixture of both

    and that's what makes the social justice movement as a whole, a bit of a problem. Maybe just because you were co-opted by terrible people, true, but…