Make No Law: The Sullivan Case and the First Amendment.

• Author: Leval, Pierre N.

A book reviewed two years after its publication had best be important, and lastingly so. Anthony Lewis's(1) Make No Law(2) easily qualifies. The book's importance derives in part from the immense (and easily undervalued) importance of its subject - the Supreme Court's decision in New York Times Co. v. Sullivan.(3)

This fascinating study reveals how Justice Brennan, the author of the Supreme Court's opinion, in his perspicacity, boldness, and statesmanship, rescued the nation from not one but two insidious dangers. In so doing, Brennan eamed his place in a tiny group - Madison, Jefferson, Hand, Holmes, Brandeis, Black - who, understanding how essential to a free society is a free marketplace for discussion, rescued freedom of speech from xenophobic hysteria.

Mr. Lewis is an ideal narrator of this morality play, for he is a journalist, historian, and legal scholar, as well as a lucid and exciting writer. This book harnesses all these powers. For Lewis, a story is not a single narrative line with a beginning and an end, but a confluence of innumerable rivers of history that stretch endlessly into the past and the future. The story of Justice Brennan's great, liberating opinion is inseparable from the history of slavery and the South's refusal to lose the Civil War for one hundred years after Appomattox - inseparable from the embattled concept of free speech going back through swerving changes to Madison and Jefferson, to Mill, Blackstone, Milton, and Henry VIII.

What we might call "Book One" is the story of slavery, the "peculiar institution" of the old South, the cornerstone of its economic system, euphemistically sanctioned in the original text of the Constitution; it is the story of the Civil War, which brought the issue of slavery to the fore, and of the next hundred years of defiant southern adherence to institutions designed to perpetuate the subjugation of the black race, a struggle to which the defeated proslavery forces of the South were far more deeply committed than their northern opposition. The Thirteenth Amendment in 1865 forbade slavery; the South responded with Black Codes that accomplished a subjugation almost as invidious as slavery. To the first Civil Rights Acts(4) (providing for the right to contract and hold property) and the Fourteenth Amendment, the South responded with Jim Crow laws segregating all public facilities, which received constitutional approval from the Supreme Court in 1896 in Plessy v. Ferguson.(5) For another half century little changed. Any attempts at civil rights legislation were stymied by southern senators's artful manipulation, often by filibuster, of the rules of congressional procedure. Finally, in 1954 the Supreme Court decided Brown v. Board of Education, 6 and an effective, broad-based civil rights movement came alive. There followed Dr. Martin Luther King, Jr. and his movement of nonviolent resistance, Rosa Parks and the success of the Montgomery bus boycott, and in 1957 the first Civil Rights Act since 1875. The response was White Citizens Councils and violent assaults on Freedom Riders of the civil rights movement, as well as on blacks exercising their newly accorded rights. Northern journalists, including Harrison Salisbury of the New York Times, reported on this violence. Civil rights groups placed ads in the northern press calling attention to the violence and soliciting support for their cause. This history sets Lewis's stage for New York Times v. Sullivan.

"Book Two" is a chilling, detailed account of the South's adoption, particularly in Alabama, of an ingenious, devastating counteroffensive weapon against the civil rights movement. The weapon was the libel action, brought before biased judges and juries (all white), designed to silence and punish the press. Numerous officials of local government sued for libel in the courts of Alabama, seeking many millions in aggregate damages against the New York Times. The first suits were aimed at Salisbury's news accounts and at an ad placed by a Committee to Defend Martin Luther King and the Struggle for Freedom in the South. The ad sought contributions, calling attention to the violent repression of the peaceful demonstrations protesting segregation. One of the suits was brought by L. B. Sullivan, a city commissioner of Montgomery, who was not mentioned, even obliquely, in the ad, but who claimed that the ad's mention of the Montgomery police, for which he was responsible, libelled him. The ad was found to contain a few innocuous mistakes of fact. For example, Dr. King had been arrested four times, not seven; armed police did not "ring" the campus where black students were seeking admission as the ad alleged, but were deployed nearby; protesting black students had sung the "National Anthem," not "My Country |Tis of Thee"; and students had been expelled not for demonstrating at the Capitol, but for demanding service at a lunch counter in the County Courthouse.

Lewis recounts a frightening tale of abuse of judicial power in the Alabama trial court (pp. 23-25): every ruling was made against the defendants, regardless of precedent, regardless even of the judge's own contrary assertions in his treatise on Alabama procedure; the judge ruled the statements libelous per se; the issue of falsity was taken from the jury because the Times had admitted the inaccuracy of certain relatively innocuous details; damage to Sullivan's reputation was presumed. The jury then dutifully awarded the full $500,000 demand, and the Supreme Court of Alabama unceremoniously affirmed. By the time Sullivan's action reached the Supreme Court, another Montgomery official's suit had also produced a $500,000 judgment. Eleven more actions were pending (pp. 35, 151). If such judgments could stand, it would not take long for the Alabama courts to put the New York Times either out of business altogether, or out of the business of reporting on the violent southern resistance to the lawful integration of the schools and public facilities.

Lewis's third history turns to explore the development of the concept of a free press (pp. 46-102). This notion, as we understand it today, managed only recently, and just barely, to establish itself on a small part of the earth's surface, thanks largely to a few visionaries.

The invention of the printing press was very soon followed by the institution of royal licensing in England. Although introduced in the guise of a revenue raising excise, the impetus for licensing derived more probably from the desire to exercise royal control over a potentially destabilizing instrument. The printing press was a menace because it facilitated the dissemination of dangerous ideas.

In England, even the most vociferous opponents of censorship had no quarrel with the infliction of severe subsequent punishment for inappropriate publications. Milton, for example, whose Areopagitica had thundered against licensing of the printed word, believed that for works "found [to be] mischievous and libelous, the fire and the executioner will be the timeliest and the most effectuall remedy ...."(7)

And long after Britain did away with censorship, it continued to punish the crime of seditious libel - the publication of statements about government officials that would tend to expose them to public disrespect. Stability of government was deemed the most highly prized value. Seditious libels might threaten that stability and thus required severe punishment. Truth was no defense. Indeed, when the libel was true, it was all the more dangerous.

The notion of a free press that developed in England was of a press that was largely free from previous restraint, but not free from punishment for inappropriate publications. According to Blackstone, "to punish ... any dangerous or offensive writings ... [because of their] pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty."(8)

It is startling how close these notions came to taking root on American soil. War and turmoil are never a healthy climate for freedom of speech. In 1798 John Adams was President of the new democracy. His Federalist party controlled both houses of Congress. Roiling with suspicion and fear of France's new populist government, which was lopping off heads with abandon and had attacked American merchant ships carrying cargo to England, the Federalists identified the opposition party of Vice President Jefferson and of Madison as dangerous French sympathizers "sowing the seeds of vice, irreligion, corruption and sedition" (p. 57).

Fresh from the establishment of the Bill of Rights, with its guarantee that "Congress shall make no law ... abridging the freedom ... of the press,"(9) the Federalist Congress passed its own Sedition Act of 1798, making it a crime punishable by up to two years imprisonment and a fine of up to $2000 (real money in those days) to "publish ... any false, scandalous and malicious writing ... against the government ..., either house of the Congress ... or the President ... with intent to defame ... or to bring them ... into contempt or disrepute ... or to excite against them ... the hatred of the good people of the United States."(10) It was against the party of Madison and Jefferson that the Sedition Act was aimed - as made unmistakably clear by the fact that, while protecting the President and the Congress, it carefully omitted the Vice President (Jefferson) from the scope of its protection. There was no penalty for exciting the hatred of the good people of the United States against him. Happily, the Sedition Act had a wonderful feature that today's Congress should be encouraged to employ: it carried a sunset provision; designed to protect the Federalist government during President Adams's term, the Act expired on the day his term ended.(11) Its Federalist proponents believed the Act passed constitutional muster by reason of the Blackstonian British view that...