Actual Malice by Samantha Barbas;

Author:Samantha Barbas;
Language: eng
Format: epub
ISBN: 9780520385825
Publisher: University of California Press

11

Make No Law

Not long after the Alabama Supreme Court’s decision in the Sullivan case, the libel cases intersected, rather fortuitously, with First Amendment theory.

In 1962, U.S. Supreme Court justice Hugo Black, famed for his “absolutist” position on freedom of speech, gave a public address in which he rejected the long-held maxim that libel was outside the First Amendment’s protections. “My view is, without deviation, without exception, without any ifs, buts or whereases, that freedom of speech means that you shall not do something to people either for the views they have or the views they express or the words they speak or write,” he said.1 Because the First Amendment’s directive that “Congress shall make no law” was an absolute, even false and defamatory statements were protected, he insisted. Black’s controversial statements brought national attention to the libel cases and unwittingly inspired the New York Times’ argument in its appeal to the U.S. Supreme Court.

• • • • •

Hugo Black was one of the most liberal jurists on a liberal court. The Warren Court, so named after Earl Warren, former California governor who was appointed to the Court by President Eisenhower in 1953, had undertaken a program of constitutional reform that transformed the lives of ordinary Americans in a way no previous Court had ever done.2 Expanding its conventional jurisdiction, the Supreme Court reached out to decide important social issues such as civil rights, privacy, reapportionment, due process, and censorship. For the first time, the Court established itself as a forum for the resolution of social problems, an activist, democratic institution that would boldly implement social change.3

The Warren Court struck down the censorship of books and films. It supervised the procedures and mechanisms of criminal law enforcement. It initiated a revolution in race, expanded the guarantees of equal protection of the laws, overturned unequally apportioned legislative districts, afforded criminal defendants expanded constitutional protections, and recognized a constitutional right to privacy. This “judicial activism,” as it was deemed, attracted no small criticism.4 In 1957, a coalition of Southern congressmen introduced legislation that would have curbed the Court’s power by reversing all or part of particular decisions, curtailing its general appellate jurisdiction, and changing the qualifications for service on the Court. In 1964, a congressional committee considered no fewer than 147 proposals to undo the school-prayer decisions. Thirteen states approved a proposed constitutional amendment to reverse the voting-reapportionment rulings. The right-wing John Birch Society launched a national campaign to drive out Earl Warren.5

The Court’s rulings on race were among its most sweeping and controversial. Moved by the sympathetic activism of the civil rights movement and an expansive view of equality and citizenship, the Court transformed deeply rooted patterns of segregation and discrimination. In a series of decisions in the 1950s, it extended Brown v. Board of Education to end segregation in public beaches, parks, recreational facilities, housing developments, public buildings, eating facilities, and hospitals.6 In 1955, it ended racial segregation in University of Alabama admissions.7 Browder v. Gayle (1956) declared unconstitutional intrastate segregation on Montgomery’s buses.

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