Heed Their Rising Voices
While I gather my thoughts and feelings about the live issue of free speech and suits for defamation, another case relating to free speech, the media and a suit for libel came to mind.
Fifty years ago this month, the US Supreme Court heard the cases of New York Times v. Sullivan and Abernathy v. Sullivan. On 29 March, 1960 The New York Times published a full-page advertisement from the Committee to Defend Martin Luther King. It included the names of twenty religious ministers working in the south in the civil rights campaign.
The Montgomery Police Public Safety Commissioner L. B. Sullivan sued both The New York Times and four of the ministers named, Ralph Abernathy, S. S. Seay, Fred Shuttlesworth and Joseph Lowery, for $500,000, based on inaccuracies in the text of the ad. For example, the ad stated that King had been arrested seven times, when in fact he had been arrested four times. The Alabama trial court and supreme court both found in favour of Sullivan, and awarded him the full sum of money. This led to similar suits, which would have hurt both the civil rights movement and the possibility of press coverage of abuses in southern states quite severely. It was widely believed that this was the ultimate aim; not the award of money to Sullivan and others, but to ensure that they could continue to act without scrutiny.
They appealed to the US Supreme Court, which heard their cases on 6 and 7 January 1964, and reversed the Alabama decision 9–0 in favour of The New York Times and Abernathy and his colleagues, based on the First Amendment, “Congress shall make no law … abridging the freedom of speech, or of the press”, extended to the states by the Fourteenth Amendment. The opinion of the court was written by Justice Brennan. He combed American jurisprudence to form a coherent view of the importance of free expression. Some sections of it stand out particularly as principles of freedom of speech and of the press in the liberal spirit of free inquiry:
He quoted Judge Learned Hand, who wrote in United States v. Associated Press (1943) that freedom of speech,
presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.
Also Justice Louis Brandeis in Whitney v. California (1927), who looked to the principles of those who set to secure freedom of speech in 1791,
They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form.
Then from Judge Edgerton in a unanimous decision of the DC Circuit Court of Appeals, for a unanimous court in Sweeney v. Patterson (1942) which affirmed the dismissal of a Congressman’s libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial appointment, which might be a particularly apt point of comparison,
The protection of the public requires not merely discussion, but information. Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man’s mental states and processes, are inevitable … Whatever is added to the field of libel is taken from the field of free debate.
In Justice Brennan’s own words, “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive,’”.
Can this great US case be considered in Ireland? Writing 24 years ago, Eoin O’Dell considered this in the Dublin University Law Journal. A common law approach could leave us in the same position as that of the Alabama courts, so he assesses the constitutional protection. The provisions in the Constitution of Ireland are weaker than the unequivocal statement of the US First Amendment. Article 40.6.1° provides,
The State guarantees liberty for the exercise of the following rights, subject to public order and morality:
i. The right of the citizens to express freely their convictions and opinions. …
This is also balanced against Article 40.3.2°
The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
Within this context, O’Dell wrote,
With Brennan J, we must recognize the inevitability of erroneous statement which nevertheless is subjectively believed. We must also now recognize that the Constitution protects free expression of opinions and convictions based not upon fact but upon perception of fact. The strict liability rule, by insisting on the actual objective truth of the facts, thus cannot stand with a constitutional provision which protects speech which refers not just to facts, but also to the subjective perception of the facts on the part of the speaker.
The US Supreme Court in New York Times v. Sullivan, by constitutional interpretation, radically altered the previously accepted common law, and dragged defamation law into the twentieth century in light of contemporary US reality. It is hoped that in light of modern Irish reality, the issues raised by New York Times v. Sullivan line of cases will be fairly examined so that Irish defamation law may also lose its Victorian shackles.
I’m not too familiar with the course of changes to defamation law in the years since 1990. I hope to become much more so before long. However, with the events of the last two weeks, at least in their chilling effect, Eoin O’Dell’s words unfortunately seem as true today as they did then.
But it also makes me wish RTÉ had the fighting spirit The New York Times did.
The New York Times v. Sullivan 376 U.S. 254 (1964).
Anthony Lewis, Make No Law: he Sullivan Case and the First Amendment (Vintage Books, 1992).
Eoin O’Dell, “Does Defamation Value Free Expression? The Possible Influence of New York Times v. Sullivan on Irish Law”, (1990) 12 DULJ 50.