I

On February 1, 1960, four black college freshmen in Greensboro, North Carolina, went to the downtown Woolworth's, sat down at the whites-only lunch counter, and, after being refused service, stayed all day. Sit-ins had begun. Seven weeks later, the New York Times editorialized: "The growing movement of peaceful mass demonstrations by Negroes is something new in the South, something understandable." The Times urged Congress to "heed their rising voices." Two weeks later Bayard Rustin and Harry Belafonte decided to use the latter phrase as a lead to a fund-raising appeal to assist with Martin Luther King, Jr.'s rising legal fees.^[2]

King's was a life filled with firsts; he was, among other things, the first citizen in the history of Alabama to be charged with felony tax evasion for perjuring himself when he signed his tax returns. This first was all the more notable because when he moved from Montgomery to Atlanta he had been assessed for back taxes, and rather

than fight, he paid. That should have ended everything right then and there. Even if it had not, the worst a taxpayer could expect under the circumstances would be misdemeanor tax evasion charges. Alabama, which was in the process of attempting to ban the NAACP, upped the ante and now appeared intent on sending the civil rights movement's most eloquent leader to jail as a greedy preacher who had lied to cheat the government.^[3]

King's problem was that his bank records were a complete mess. Attempts to straighten them out were transferring money from King to those helping him. His accountant, a trustee at his father's Ebenezer Baptist Church in Atlanta, was running a tab that equaled a year of King's salary to go over the two tax years in question. Five lawyers weren't coming free either. The Northerners believed King's Southern lawyers were charging beyond their competence; the latter were complaining about the Northerners' unwillingness to disclose their rates. Against this background, Rustin and Belafonte set out to raise money for King's defense by taking out a fullpage ad, in the name of sixty-four prominent citizens, in the New York Times to solicit funds. The ad ended by calling on "men and women of good will" to do more than "applaud." They should give material support as well. They did. The ad, which cost $ 4800, paid for itself many times over.^[4]

Soon the ad would be creating legal fees even more times over, but in the meantime King's perjury trial was fast approaching. His lawyers, who may have believed him guilty and laughed behind his back at his claim of innocence, delivered their unhappy prognosis that a jury would convict and there would be little chance of getting an appellate court to upset a jury verdict. Fortunately, William Ming of Chicago brought a young member of his firm who had a tax and accounting background, Chauncey Eskridge, to assist with the defense. When Eskridge gingerly talked with King, he learned that although the bank records were in shambles, King had kept meticulous notes in a diary. A night with the diary and an adding machine convinced Eskridge that King was more honest than any man he had ever hoped to meet.^[5]

Now there was a clear trial strategy and, although it would not have been wise to place even a hedged bet, the Alabama jury, after three hours and forty-five minutes of deliberation, acquitted King. Even he could not explain it: "Something happened to the jury." It

would be a different story when the New York Times ad received its day in the Alabama courts.^[6]

The ad began with an appeal: "three needs—the defense of Martin Luther King—the support of the embattled students—and the struggle for the right to vote"; it then moved on to describe the situation in the South. The first paragraph alluded generally to the "non-violent demonstrations" as a "positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights." It charged that in efforts to uphold these guarantees the demonstrators had been "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 of modern freedom."^[7]

After mentioning the teargassing of demonstrators in Orangeburg, South Carolina, the ad turned, in paragraph three, to Montgomery. It began by complaining of mistreatment of demonstrators who sang in the state capital. It charged that leaders of the demonstration were expelled from Alabama State College, that truckloads of police "armed with shotguns and tear-gas" had ringed the Alabama State campus, and that when "the entire student body" protested by refusing to register, the college dining hall was padlocked in an effort to starve the protesters into submission. Paragraph four made reference to other Southern cities where "young American teenagers" were facing the "entire weight" of the state and police.

The fifth paragraph speculated that "Southern violators of the Constitution fear this new, non-violent brand of freedom fighter . . . even as they fear the upswelling right-to-vote movement" and that they were determined "to destroy the one man who more than any other, symbolizes the new spirit now sweeping the South—the Rev. Dr. Martin Luther King, Jr." The next paragraph asserted that the "Southern violators" had repeatedly "answered Dr. King's protests with intimidation and violence"; it referred to the bombing of his home, assault on his person, his seven arrests, and the pending perjury charge. It asserted that "their real purpose is to remove him physically as the leader to whom the students—and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South." It concluded that King's defense was "an integral part of the total struggle for freedom in the South."^[8]

The first indication that the ad might generate more legal fees than it brought in came a week after it ran, when the Alabama attorney general announced that Governor James Patterson had instructed him to consider suing the Times and the signatories of the ad for libeling Alabama officials (even though none were specifically named). Then on April 8, Montgomery Police Commissioner L. B. Sullivan wrote four Alabama ministers who were listed in the ad's endorsement section, demanding a "full and fair retraction of the entire false and defamatory matter." As Taylor Branch recounts, these letters came as a "chilling surprise to the four ministers, none of whom had known of the ad's existence, much less that their names had been used."^[9]

An identical letter from Sullivan, misdated March 8, was also sent to the New York Times . After checking with its Montgomery stringer, the Times wrote back that it was "puzzled as to how you think the statements [in the ad] in any way reflect on you." The point was a good one; Sullivan, like everyone else, had not been mentioned by name, nor was there any mention of his job.^[10]

Alabama law required Sullivan to request a retraction before suing. It did not require that he continue the correspondence to explain how he felt he had been harmed. On April 19 he let his lawyers do the talking by filing suit against the Times and the four Alabama ministers, demanding $ 500,000 in damages. That was ten times higher than the highest libel award that the Alabama Supreme Court had ever sustained.^[11]

A day later the Alabama attorney general recommended that "proper public officials" follow Sullivan: "File a multi-million dollar law suit." His price advice was unheeded, although Sullivan's fellow commissioner Frank Parks, Montgomery Mayor Earl James, and former commissioner Clyde Sellers followed Sullivan's lead precisely. Then on May 6 the mayor of Birmingham and the city's two commissioners each filed $ 500,000 suits against the Times based on stories Harrison Salisbury had written in early April. Similar suits, again based on Salisbury's stories, were filed by three Bessemer officials.^[12]

The toppers were yet to come. On May 9 Governor Patterson wrote the Times demanding a retraction. Unlike Sullivan, Patterson indicated why he thought the ad implicated him. Not only was he governor, he was also ex officio chairman of the state board of

education. This time the Times printed a retraction: "To the extent that anyone can fairly conclude from the statements in the advertisement that any such charge [of wrongdoing by Patterson] was made, the New York Times hereby apologizes." It wasn't enough. Patterson filed suit for one million dollars, naming King as a defendant as well. Finally, the distinguished Times correspondent Harrison Salisbury, who had written two stories on conditions in Birmingham and Bessemer, was hit with a forty-two-count indictment for criminal libel. The Montgomery Advertiser accurately informed its readers: "State and city authorities have found a formidable legal bludgeon to swing at out-of-state newspapers whose reporters cover racial incidents in Alabama."^[13]

Although CBS was also hit with libel suits out of Birmingham, it was the Times that was seeing the "legal bludgeon" up close and personal, in a state where it could legitimately claim to be a stranger. Only 394 (out of 650,000) copies of the Times came in daily, some 35 to Montgomery. Moreover, only two of its regular reporters, Salisbury and Atlanta-based Claude Sitton, had even been in the state in 1960 (and as a result of the lawsuits, on the advice of counsel, Salisbury, Sitton, and other Times reporters were instructed to stay away from Alabama). If Alabama courts had jurisdiction over the Times —and the courts would hold that they did—then trouble lay ahead.^[14]

Jurisdiction aside, both Sullivan and the Times had problems. Sullivan's was basic; he had to convince a jury that an ad mentioning neither him nor his position libeled him. The Times' s problem was that there were indeed several technical, and one more substantial, factual errors in the ad. Under Alabama defamation law—which was the same as that in the majority of American jurisdictions—these errors would strip the Times of the common-law defense of truth, because that defense existed solely for perfectly true statements. The errors in the underlying statement of facts also negated the common-law defense of fair comment. The Times' s fate would presumably be in the hands of an Alabama jury no more admiring of it than was the 1918 Ohio jury that had blandly convicted Eugene Debs, the leading Socialist of his time.^[15]

The ad's technical errors were just that. Paragraph three said the students sang "My Country 'Tis of Thee," when in fact they sang the national anthem. Paragraph six said King had been arrested

seven times—three too many. Police never "ringed" the Alabama State campus, although they were deployed nearby in large numbers. A large portion, but not "all," of the student body participated in the demonstrations. A more serious error was the charge that the dining room had been padlocked to starve the protesting students into submission. That simply was not so, and the only students who were barred from eating were a relatively small number who lacked the necessary documentation.

Still, Sullivan had to prove identity, defamation, and damages, the issue of identity being his greatest hurdle. It would be a jury question, and Sullivan's goal was to demonstrate that references to police in the ad would be interpreted as referring to him in his official capacity as the police commissioner. Thus in paragraph three, the ad stated that in Montgomery "truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested . . . their dining hall was padlocked in an attempt to starve them into submission." Then in paragraph six the ad referred first to "Southern violators" and then to the seven arrests of King. Sullivan contended that since arrests are normally made by the police, the references to "they" and "Southern violators" would be read as describing the Montgomery police, and hence him, as lawbreakers and people who would padlock a dining hall to starve students. If Sullivan could convince the jury that the words "they" and "police" referred to him, then, surprising as it might seem, he could be home free; the ad's references to brutality, harassment, and illegality by the police were clearly defamatory, and, as we have just seen, the Times would be defenseless because the ad's statements were not 100 percent true.

Nor would it be relevant that the Times did not write the ad and that the ad's real authorship was undisputed. At trial the Times would attempt to disclaim responsibility for Rustin's errors, while Sullivan would have the more enviable position of being portrayed as the "innocent victim of powerful corporate interests in the North." Sullivan's point was the better one, rhetorically and legally: the Times had circulated the libel and therefore had legal responsibility for it.^[16]

The trial's beginning on November 1, 1960, was most inauspicious for the Times . An all-white jury was empaneled, and Sulli-

van's counsel established the right to use the word "nigger" in the courtroom, on the ground that it was the customary usage of a lifetime. Then followed the establishing of Sullivan's case. Grover Hall, editor of the Montgomery Advertiser , testified that most Montgomery citizens would take the ad to be defamatory of Sullivan if they believed the charges. Sullivan's other witnesses testified that they understood the ad to refer to the police department and Sullivan—although none of the witnesses testified that he believed the truth of any of the statements deemed to apply to Sullivan. Naturally Sullivan took the stand, and on cross-examination he helped his own case when in separate answers he stated, "Certainly I feel it reflects on me," and "I have endeavored to try to earn a good reputation and that's why I resent very much the statements contained in this ad which are completely false and untrue."^[17]

None of Sullivan's witnesses thought less of him because of the ad. That was not relevant, however, because of a unique facet of libel law, again common to most American jurisdictions: damage, falsity, and malice could be presumed without being proved. Such "galloping presumptions" can produce amazing results. Thus, whereas the jury was to decide the issue of identity—and they found that the ad did refer to Sullivan—the judge properly ruled that no damage need be shown. Sullivan was entitled to a presumption of general damages, based on presumed harm to his reputation—never mind the compelling irony that the ad, if believed, would probably have enhanced Sullivan's reputation in the Montgomery of 1960! Similarly, as the Times was unable to establish truth, the trial judge ruled, again properly, that the charges in the ad were libelous as a matter of law. Defamation is a tort of strict liability, so it did not matter that the Times did not know whether the facts were untrue. By publishing the ad, the Times took its chances. When the jury came back, giving Sullivan every cent he had asked for, the Times learned the costs of taking its chances.^[18]

Again it bears repeating, as Harry Kalven has so carefully noted, that "Alabama did not create any special rules of law for these defendants. It simply applied the existing principles of the law of libel," namely, (1) whether the statements would be understood as referring to the plaintiff was a question of fact for the jury to decide; (2) the plaintiff could recover damages for statements tending to injure him in his office, without proving actual injury; and (3) the

privilege of fair comment did not protect false statements of fact. All this didn't make the Times feel any better, and it didn't make Alabama's legal bludgeon look any tamer—a point reinforced on February 1, 1961, when a jury awarded an identical $ 500,000 judgment to Mayor Earl James in his libel action against the Times and the Alabama ministers. Only by successfully, although possibly temporarily, removing the remaining cases from state to federal court did the Times prevent additional judgments from rolling in.^[19]

If the battles in the Southern streets and in the arena of public opinion were largely draws, the legal arsenal contained in the law of libel enabled the South to make a powerful counterattack. A former vice-president and general counsel of the Times reflected: "Without a reversal of these verdicts, there was a reasonable question of whether the Times , then wracked by strikes and small profits, would survive."^[20]