New York Times v. Sullivan and the Forgotten Session of the US Supreme Court

A forgotten session of the US Supreme Court shows a Chief Justice at odds with conservative calls to overrule a landmark precedent.

New York Times v. Sullivan

In Sullivan, L.B. Sullivan, a commissioner in Montgomery, Alabama, sued The New York Times for libel after it published a full-page advertisement from the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. That ad was critical of Montgomery police and their “unprecedented wave of terror” against civil rights protestors.

The Aftermath and the Attacks

New York Times v. Sullivan has become such an important case then — a integral thread of the fabric of the United States even — because it declared to the world our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

The Forgotten Session

Before the Court’s conservatives go down the path of further questioning Sullivan though, they should stop and consider what one of the most influential conservative justices of the twentieth century said about the case.

Brennan read the “Bill of Rights in defense of the innate dignity of the individual, not as an alienated island but as a participant in a democracy of equals”

Reno then rose: “Mr. Chief Justice and may it please the Court.” Despite the hundreds of opinions to choose from, she too turned to Sullivan. That case, she said, was “one of the leading free speech cases of this century” and it “articulated the fundamental principle of the opinion, and one of the foundations of this Court’s First Amendment jurisprudence.”

Rehnquist’s Discussion of Sullivan

Rehnquist thanked Waxman and Reno and found: “Your motion that [the Resolutions] be made part of the permanent record of the Court is hereby granted.”

In the End

Rehnquist’s comments that day in Washington, D.C. in May 1998 have for years been forgotten, unnoticed by commentators, attorneys, and academics. But those comments stand as one of the last, best defenses of Sullivan in the Court’s record. All of the Justices on today’s court would do good to revisit these comments.



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Matthew Schafer

Media Lawyer. Adjunct Professor/Mass Media Law at Fordham University School of Law. Twitter @MatthewSchafer