Clarence Thomas wants to crush the free press just like Southern segregationists of the 1960s. By Will Bunch

Updated: February 21, 2019 - 2:00 PM
by Will Bunch

There was another time in America — when a young cadet named Donald Trump was still parading the grounds at New York Military Academy and the Supreme Court consisted of nine old white men — when a gaggle of high-level elected officials declared that journalists were an enemy of the people.

And that’s not the worst part. What’s really scary is that attacks on a free press that were centered in Alabama during the early 1960s nearly worked — and that their malicious campaign might have shut down the civil rights movement led by Dr. Martin Luther King Jr., before it got off very far off the ground, thus continuing to deny African-Americans the right to vote or even use the same water fountain as a white person.
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In 1960, as King — the well-known leader of the Rosa Parks-sparked Montgomery bus boycott — was looking to expand his movement against Southern segregation, officials in Alabama charged the young minister with perjury. A group calling itself the Committee to Defend Martin Luther King and the Struggle for Freedom in the South placed a full-page ad in the New York Times calling attention to the case and seeking to raise money for King’s defense. It was headlined “Heed Their Rising Voices.”

Alabama’s white, pro-segregation leaders had other ideas. Having vowed “massive resistance” to racial integration, top officials — beginning with Montgomery’s public safety commissioner L.B. Sullivan, later joined by Alabama’s governor — sued the New York Times as well as prominent black ministers for libel over the allegations in the ad, Bringing their cases in state court before all-white juries who’d been whipped into a frenzy against “outside agitators” by their political leaders, Sullivan eventually won a $500,000 judgment — a sum that would have been highly damaging to the Times in those days.

But even worse, the case had a chilling impact on coverage of the civil rights movement by the New York Times and other Northern newspapers right at a critical moment for King and other activists. They desperately needed publicity outside the South — to raise money, rally public support, and woo Northern members of Congress to their cause. But the legal proceedings, and fear of being served with court papers, kept the Times’ legendary reporter on the civil rights beat, Claude Sitton, out of Alabama for much of a two-year period.

Hank Klibanoff, the former Inquirer journalist who co-authored (with former Inquirer editor Gene Roberts) the Pulitizer Prize-winning book The Race Beat about journalism and the civil rights movement, told me that Sitton chafed under the notion that government officials could prevent him from covering a story. One night, he said, the Times man lost his cool over the phone with his editors as he missed another Alabama scoop. Sitton snapped: “How long are you gonna let the damn lawyers run the newspaper!”

The answer, it turned out, was until 1964. That’s the year that the case called New York Times Co. v. Sullivan finally reached the U.S. Supreme Court and justices issued a landmark 9-0 ruling that said public officials couldn’t sue journalists for libel except in the unlikely event that a newspaper knowingly published a recklessly false story. Subsequent court cases would extend that standard to any public figure.

Today, few people know this story behind New York Times Co. v. Sullivan, but the impact of that ruling has shaped modern American politics, by freeing investigative journalists to expose not only national scandals such as Watergate or the conduct of the Vietnam War but hundreds of cases of local graft and corruption — all without fear of unwarranted libel suits as a form of harassment. This modern notion of this role that an unfettered free press plays in our democracy is now so ingrained it’s easy to take for granted.

Until the people who run this country threaten to take it away.

That’s why the opinion issued this week by Supreme Court Justice Clarence Thomas — in a libel case involving comedian Bill Cosby and one of his sexual-assault accusers — stating that he wants the High Court to take a second look at New York Times Co v. Sullivan, that the 1964 ruling and later cases that strengthened it were "policy-driven decisions masquerading as constitutional law.”

Thomas argued that since there’s no specific language in the Constitution protecting public figures, the Sullivan case was wrongly decided. It’s a point that embraces the justice’s so-called Originalist view of the Constitution, but Thomas could not have picked a more fraught time to make it. For one thing, Thomas’ position aligns closely with that of President Trump — a life-long tabloid celebrity who declared as a candidate that he wanted to make it easier to sue journalists for libel. Since then, Trump has appointed two of the other eight justices and one of them, Neil Gorsuch, concurred with Thomas’ statement.

More importantly, the legal thunder bolt came at a moment when press freedom is under verbal and occasionally physical assault from the president and his supporters. Just hours after Thomas’ opinion, Trump tweeted that the New York Times is “a true ENEMY OF THE PEOPLE,” a Stalin-flavored threat that the president has resorted to on nearly two dozen occasions. And shortly after that, an active Coast Guard member with a large cache of weapons was arrested and charged with threatening to kill journalists from MSNBC and CNN (as well as Democratic politicians.) Christopher Hasson was stopped in time — but the Trump rally attendee who recently jumped into the press area and pummeled a BBC cameraman was not.

If threats and physical bullying doesn’t chill press freedom, the idea that the president of the United States could, at some future date, sue the New York Times over stories he doesn’t like, like this week’s report on his alleged efforts to interfere in federal probes of him and his allies, is downright terrifying. Donald Trump and Clarence Thomas long for an America where powerful people like them cannot be held accountable.

What’s more, the notion that the only black member of the Supreme Count — named to the seat as a replacement for civil right icon Thurgood Marshall — wants to blow up the court ruling that aided Martin Luther King in taking down segregation is beyond irony.

Christopher Schmidt, a professor at Chicago-Kent College of Law who focuses on the Supreme Court, wrote a lengthy history of the New York Times Co. v. Sullivan case on its 50th anniversary. He found that pro-segregation Southern officials used a variety of legal tools — tax investigations, student discipline, regulation of protests — in seeking to squelch the civil rights movement. But libel lawsuits — particularly in Alabama — proved an especially effective tactic...for a time.

“They used this as a legal tool to send a message to civil rights activists — and to the press,” Schmidt told me. Sullivan was just one of five Alabama officials who sued the New York Times over the King ad; in addition, a sheriff sued the Ladies Home Journal seeking $3 million for a story on police brutality, and CBS News and Times reporter Harrison Salisbury, who accused Birmingham’s white establishment of racism, were also targeted in the courts. That form of harassment-by-lawsuit — and the burdens for news organizations to mount a legal defense — might have lasted for years if not for the Sullivan ruling.

Schmidt said it wouldn’t be easy today for Thomas to get the five votes necessary to overturn the 1964 ruling, since two of the Supreme Court’s conservative majority — Chief Justice John Roberts and Justice Samuel Alito — don’t share his Originalist philosophy. But maybe that wasn’t so much Thomas’ point as simply raising the question of whether the role that journalism plays in a democratic society is even essential, at a moment when a president who works to spin his own reality out of fiction is about to seek re-election.

On the other hand, Thomas’ judicial broadside could backfire — but only if it helps to remind everyday Americans that we can’t take it for granted that investigative journalism will always be there to ask tough questions of the high and mighty. That’s why it’s also important to remember the history of how ill-intention politicians nearly spiked the story of Martin Luther King.

I asked Klibanoff to imagine what America would look like without the bold press protections that were defined in the original 1964 decision. He said, “You would see one tombstone after another for all of the stories that never made it to print.”
by Will Bunch
Posted: February 21, 2019 - 2:00 PM
Will Bunch | @will_bunch | bunchw@phillynews.com