Jason Zirbel

Prof. Barbas

20th Century American Legal History

17 May 2013

In Pursuit of Honor or Sedition: A Look into the Southern Intentions Behind New York Times v. Sullivan

“Good name in man and woman, dear my lord,Is the immediate jewel of their souls;Who steals my purse steals trash; ‘tis something, nothing;T’was mine, ‘tis his, and has been slave to thousands;But he filches from me my good nameRobs me of that which not enriches himAnd makes me poor indeed.”

-William Shakespeare, Othello

“A bird without wings” is what Congressman John Lewis of Georgia called the Civil

Rights Movement without the media.1 Having been beaten, bloodied, and jailed, Lewis is one of

the Movement’s most distinguished and iconic veterans, a leader of those who achieved the

impossible task of challenging the infamous Jim Crow laws, which sat marrow deep in Southern

society. He therefore owns an expertise about the movement few possess.

It is significant, therefore, that on the fortieth anniversary of Bloody Sunday,

Congressman Lewis stood at a podium in front of the House of Representatives and spoke not

about Dr. King or himself, but about print and broadcast media. In fact, he accredited the

success of the Civil Rights Movement in mountainous measure to the media. Never allowing his

immense gratitude to escape the listener, Lewis called the reporters who covered the Movement,

1 On the Contribution of the Press to the Civil Rights Movement, Hon. John Lewis. Congressional Record: September 8, 2005. Pg E1812-E1813.

and who oftentimes “were beaten and bloodied” themselves, courageous.2 He even noted that “a

resolve grew in them [the reporters] that was similar to those in the Movement.”3 Lewis then

elaborated on why the press was so vital to the Movement’s success:

There was a violent desperation among local and State officials and the citizens to maintain the traditional order. People wanted to keep their injustice a secret. They wanted to hide from the critical eye of a disapproving world. They wanted to flee from the convictions of their own conscience.4

But as Congressman Lewis suggested in his speech, the media would not let them.

Instead, it exposed those secrets, opened the world’s eyes, and made every American a witness to

the injustices perpetrated against their fellow citizens. Without the media’s role in the

Movement, in short, Congressman Lewis attested that he was “not certain where we would be

today as a nation.”5 The media truly gave the Civil Rights bird wings.

But the media’s saga in the Movement cannot be divorced from the episode that

threatened to derail it significantly, a story grounded in libel law. In fact, southern officials

began to file defamation suits against newspapers and other media outlets for inaccuracies and

exaggerations in civil rights coverage. In addition to print, production, and salary costs, these

suits threatened to heap sizable judgments on these outlets. Potentially, civil rights stories would

become too costly to run.

These were no phantom threats. When New York Times v. Sullivan reached the United

States Supreme Court docket, nearly $300 million in defamation claims had been filed against

various national media outlets.6 Turner Cateledge, managing editor of the New York Times,

2 Id.3 Id.4 Id.5 Id.6 Harrison Salisbury, Without Fear or Favor. (New York: Times Books, 1982) 388.

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wrote in the face of these mounting lawsuits to his friend, W.F. Aycock of the Associated Press.7

“This is an expensive business,” he wrote, and if such suits prevail, “then all of us are out of

business, because we will not be able to do our jobs.”8

Abundant scholarship exists on New York Times v. Sullivan. But what has and

continues to divide academic circles is the question of what truly motivated the suit. At the

forefront, two possible motives behind the suit have been advanced. The first, argued by

Anthony Lewis, a Times reporter who covered the Sullivan case and a subsequent law professor

at Harvard Law School, and Rodney Smolla, another distinguished law professor, holds that

Southern officials in general sought to craft libel law into a weapon to parry the Movement and

deliver to it a mortal blow. Under this theory, defamation suits were part of a larger, calculated

scheme to repel an interloping Northern press. This would allow the traditional order, protected

against seditious scathing, to endure amid a blinded world eye. The theory suggests, in effect,

that southern officials came to the same realization as Congressman Lewis. Without the media,

the Movement was “a bird without wings.”9 Wingless, it could not migrate.

On the other hand, a second possible motive, proposed by Kermit Hall, a distinguished

professor and a President of SUNY Albany, is that the suit was about southern honor. According

to the theory, the New York Times’ sensationalist coverage of civil rights impugned the

reputation and honor of the South, and the suit was a redress to that grievance. In effect, the

advertisement was an affront to Southern honor; the suit, a duel in its defense. Hall does not rule

out the sedition argument, but he advances that to fully understand the case is to study the impact

it had on southern culture and honor.

7 Edmondson, Aimee. In Sullivan’s Shadow: The Use and Abuse of Libel Law During the Civil Rights Movement. (Dissertation: Proquest, LLC, December 2008) 63-64.8 Id. at 64.9Congressional Record. September 8, 2005. Pg. E1812-E1813

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The two theories are vastly distinct. The first motive is condemnable; the second,

understandable in isolation as the defense of an ideal. The first casts the officials in the troupe of

Civil Rights era villains; the second, by itself, does not. Nevertheless, analysis of the evidence

demonstrates not only that both arguments are compelling, but that they are reconcilable. In fact,

if any truth is extractable from the case, it is most likely that beyond the Civil Rights struggle,

the case was also another civil war between old conceptions of honor, battling in the shadows, at

contest in New York Times v. Sullivan.

Background: History of Libel Law in the United States

Before New York Times v. Sullivan, libel law in the United States was very much an

artifact of its English ancestry. The American colonies inherited the English common law of

libel, and this law remained in large measure in the United States following the Revolution.10

Libel law in England, which would form the basis of the American form, emerged from

feudalism.11 Feudalistic society was based around social relations, and English kings instituted

libel laws to curb the violence that resulted from one noble impugning the reputation and honor

of another.12

England’s Star Chamber developed the early common law of libel through its decisions.13

Eventually, it would define libel as that which “robs a man of his good name, which ought to be

more precious to him than his life.”14 It would afford defamatory statements little value and

afford reputation, as a vestige of feudalism’s concept of honor and as an increasingly important

10 Lawhorne, Clifton O. The Supreme Court and Libel. (Southern Illinois University Press: 1981) xv.11 Rosenberg, Norman L. Protecting the Best Men: An Interpretive History of the Law of Libel. (The University of North Carolina Press: Chapel Hill, N. Carolina, 1986) 3.12 Id. at 3-4.13 Lawhorne, The Supreme Court and Libel, xv.14 Lawhorne. The Supreme Court and Libel, xv.

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property interest in a developing commercial society, immensely greater weight. 15 As a result,

libel law in England developed into an extremely plaintiff-friendly doctrine. In practice, a judge

would decide whether a statement was libelous.16 A jury would then decide if the defendant was

in fact the one who made it.17 The truth or falsity of a defamatory statement as well as the

libeler’s intent, moreover, was irrelevant.18

With respect to political criticism, or seditious libel, Star Chamber law was

uncompromising. All libel of government or of government officials subjected an author to

criminal penalties, “regardless of accuracy, motives, and intentions.”19 It was justified under the

theory “that all political criticism endangered the body politic and was, therefore, illegal.”20

This English common law of libel took root in the American colonies. However, some of

its roots would be cut and some would grow in new directions. The common law, for instance,

was followed exactly in the case of Roger Williams, who was expelled from the Massachusetts

Bay Colony after writing and circulating a pamphlet “accusing the General Court there of

oppression of religion.”21 But libel law would take on new forms in the face of a budding

American identity. As early as 1692, for instance, Quaker judges in Philadelphia began to allow

juries to determine whether a particular statement was libelous.22 The defense of truth,

moreover, increasingly became a principle in Anglo-American libel law. In the monumental

case of John Peter Zenger, for instance, Zenger was allowed the defense of truth and a jury

determination of libel when, in 1735, he was tried for “printing criticisms” in his New York

15 Hall, Kermit L. and Melvin L. Urofsky, New York Times v. Sullivan: Civil Rights: Libel Law, and the Free Press. (University Press of Kansas: 2011) 37-38.16 Id. at 38.17 Id.18 Id. at 40.19 Rosenberg, Protecting the Best Men, 259.20 Id. at 83.21 Lawhorne, The Supreme Court and Libel, xvi.22 Id.

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Weekly Journal of Governor William Cosby.23 Increasingly, colonial courts were introducing

new concepts to common law libel.

After the Revolution, the further development of Anglo-American libel law was left to

state determination. However, almost every state followed the strict English model with the

additional caveats of jury determinations of libel and the defense of truth.24 These states

employed what was called the “galloping presumptions” in favor of plaintiffs.25 The falsity of

defamatory statements was presumed, for instance, and the defendant bore the burden of proving

truth.26 Furthermore, malice was presumed “from the simple act of publication,” and a plaintiff

did not have to demonstrate any actual harm to his reputation.27

With respect to seditious libel, the early Star Chamber decisions were enforced in the

colonies.28 Colonial grand juries, however, often refused in the mid to late 1700s to indict

political libelers, a result growing out of the rising political unrest that would culminate in

revolution.29 In fact, after the Revolution, many Americans were loath to any law criminalizing

sedition in their newly-established country.30

Nevertheless, the unhappy experience with Great Britain did not prevent many

Americans from dividing on the limits to political criticism.31 Some in the Federalist camp, such

as Alexander Hamilton, were still inclined toward a restrictive model of political criticism.32 The

Federalists justified their position by emphasizing that restraints on political libel “provided

necessary stability in a republican polity.”33 Others, such as Thomas Jefferson and the Anti-23 Id. at xvii.24 Hall, New York Times v. Sullivan, 42.25 Id.26 Id.27 Id. at 41-42.28 Lawthorne, The Supreme Court and Libel, 1.29 Id. at xvii.30 Id. at 1.31 Rosenberg, Protecting the Best Men, 259.32 Id.33 Id. at 83.

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Federalists, opposed this view.34 They stressed the principle of popular sovereignty, and a wide

freedom to criticize government as a necessary means to sustain it.35

The Sedition Act of 1798 was the progeny of a Federalist-dominated government

arguably intended in large part to silence its Anti-Federalists critics.36 Adopting “the old English

common-law concept that it was a crime to publish ill opinions of the government and public

officials,”37 it made it a crime to “utter or disseminate any false, scandalous and malicious

comments about the government, members of Congress, or the President.”38 The short-lived law

resulted in few indictments and even less convictions, and it never reached the Supreme Court

for determination of its legality under the Constitution. Nevertheless, it would provide the bases

for similar state laws, “triggering a number of state common-law prosecutions for seditious libel,

along with civil libel suits [by public officials], and it firmly established state authority to

prosecute newspapers for attacks on government officials.”39 That was until the Supreme Court

decided New York Times v. Sullivan.

“Robust, Uninhibited, and Wide open” Debate—New York Times v. Sullivan

New York Times v. Sullivan revolutionized libel law in the United States with respect to

criticism of public officials. In effect, it nationalized what was hitherto left to state-

determination and incorporated First Amendment protection to political libel.40 It established an

“actual malice” standard, which shifted the burden of proof on public officials claiming libel to

prove that the defendant published falsehoods with actual malice or with a reckless disregard for

34 Id.35 Id.36 Hall, New York Times v. Sullivan, 36.37 Lawhorne, The Supreme Court and Libel, 2.38 Rosenberg, Protecting the Best Men, 81.39 Lawhorne, The Supreme Court and Libel, 3.40 Smolla, Rodney A. Suing the Press: Libel, the Media, and Power. (Oxford University Press: New York, 1986) 25.

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the truth.41 It forced, in effect, a potential plaintiff to have to prove the defendant’s state of mind,

an enormous burden that would guarantee enormous protection in political criticism, and very

importantly, in reporting of the Civil Rights Movement. And it would come into being as the

result of an advertisement published in the New York Times entitled Heed Their Rising Voices.

The Times published “Heed Their Rising Voices” on March 29, 1960.42 The ad was an

emotional appeal to readers,43 intended to bolster donations for Martin Luther King, Jr.’s defense

against a perjury charge in relation to alleged tax evasion in Alabama.44 The ad stated that

“thousands of Southern Negro students are engaged in wide-spread nonviolent demonstrations in

positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution

and the Bill of Rights.”45 But, it went on, “[these demonstrators] are being 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 for modern freedom.”46 Giving examples, it

continued:

When 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district [of Orangeburg, South Carolina], they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold.

In Montgomery Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truck-loads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.47

41 New York Times v. Sullivan, 376 U.S. 254, 283-84 (1964).42 Heed Their Rising Voices, New York Times. March 29, 1960.43 Hall, Kermit L. Dignity, Honor, and Civility: New York Times v. Sullivan. (OAH Magazine of History, Winter 1995) 34.44 Hall, New York Times v. Sullivan, 15-16.45 Heed Their Rising Voices, New York Times. March 29, 1960.46 Id.47 Id.

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The article then stated that Dr. King had been arrested 7 times and was now facing a perjury

charge, “under which [Alabama] could imprison him for ten years,”48 the purpose of which “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.”49 Finally,

the ad concluded with an appeal for donations. “We must…render the material help so urgently

needed,” it stated, “by those who are taking the risks, facing jail, and even death in a glorious re-

affirmation of our Constitution and its Bill of Rights.”50 The ad then listed the names of those

who it said supported the ad, which included the names of 20 people, most of whom were “black

ministers in the South.”51

The ad, however, had some factual inaccuracies. Dr. King, for instance, had been

arrested 4 times, not 7.52 Students on the capitol steps, moreover, sang the national anthem, not

“My Country, ‘Tis of Thee.”53 And not all of the students protested, and those who did

boycotted a single day of classes and did not protest by refusing to re-register.54 Finally, no

padlock was placed on the dining hall door.55

Although “only 394 copies of the Times were sent to Alabama newsdealers,” only 35 of

which “found their way into Montgomery, Alabama,” the “Heed Their Rising Voices” article

was quickly passed around Montgomery circles.56 Soon after, the Governor of Alabama and

three Montgomery Commissioners, most notably L.B. Sullivan, filed libel suits against the

Times.57 Sullivan, a staunch segregationist, a member of the Ku Klux Klan, and an elected 48 Id.49 Id.50 Id.51 Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. (Random House: New York, 1991) 7.52 Smolla, Rodney. Suing the Press: Libel, the Media, and Power. (Oxford University Press: New York, 1986) 31.53 Id.54 Id.55 Id.56 Id. at 30.57 Id.

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official committed to “the continuation of Southern traditions and customs,”58 would thereafter

make his name synonymous with American libel law.

Sullivan sued the Times, as well as four of the ministers mentioned in the ad, for

$500,000.59 Addition of the ministers was on the advice of counsel.60 It was an attempt to

remove complete diversity from the suit, thus preventing the Times from removing the case to

Federal court.61

The trial began on November 1, 1960, presided by Judge Walter Burgwyn Jones, a

“devotee of the Confederacy and the Southern way of life.”62 Jones’ father was Thomas Goode

Jones, a Confederate officer who “carried the flag of truce from Lee to Grant at Appomattox.”63

Prior to the case, Judge Jones had “published a document entitled ‘The Confederate Creed,’” in

which he wrote:

With unfaltering trust in God of my fathers, I believe, as a Confederate, in obedience to Him; it is my duty to respect the laws and ancient ways of my people, and to stand up for the right of my state to determine what is good for its people in all local affairs.64

Of note, the Times’ lawyer in the case, the Alabaman attorney T. Eric Embry, was convinced that

Judge Jones helped plan the suit.65 “Grover Hall [an editor of the Montgomery Advertiser who

will be mentioned later] and some others,” Embry maintained, “met in Jones’ office and

concocted all these lawsuits.”66 Anthony Lewis notes, “If there had been such a meeting, it was

too late to find evidence of it.”67

58 Hall. New York Times v. Sullivan at 12.59 Smolla. Suing the Press at 30-31.60 Lewis. Make No Law at 13.61 Id. at 13.62 Id. at 25.63 Id.64 Smolla. Suing the Press at 32.65 Lewis. Make No Law at 26.66 Id.67 Id.

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An all-white jury would decide the case, applying Alabama’s law of libel, which stank of

Star Chamber, to the facts of the case. The instruction of the law was as follows:

Where the words published tend to injure a person libeled by them in his reputation, profession, trade, or business, or charge him with an indictable offense, or tend to bring the individual into public contempt, they are libelous per se. The publication is not to be measured by its effects when subjected to critical analysis of a trained legal mind, but must be construed and determined by its natural and probable effect upon the mind of the average lay reader.68

After three days, the jury was charged to decide three issues: “(1) Had the defendants

published the advertisement? (2) Were the statements in it of and concerning L.B. Sullivan? And

(3) if so, how much money should be awarded to Sullivan as damages?”69 After only two hours

and twenty minutes the jury decided.

The jury decided that even though Sullivan was not mentioned in the article, he was

defamed. In fact, it awarded him $500,000 to be paid by the Times and the four ministers.70 On

appeal, the Alabama Supreme Court affirmed the decision.71

The United States Supreme Court, however, granted certiorari, heard the case, and

delivered its opinion on March 9, 1964.72 Justice Brennan delivered its opinion.73 In it, he stated:

We consider this case against the background of a 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 public officials74…the present advertisement as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection.75

68 Hall. New York Times v. Sullivan at 43.69 Lewis. Make No Law at 25.70 Id. at 33.71 Hall. New York Times v. Sullivan at 99.72 New York Times v. Sullivan, 376 U.S. 254 (1964).73 Id.74 Id. at 270. 75 Id. at 271.

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Asserting this, he continued. “Erroneous statement is inevitable in free debate, and it

must be protected if the freedoms of expression are to have breathing space that they need to

survive.”76 As such, when a public official brings a libel claim, he must hereafter prove “actual

malice.”77 Sullivan’s case was therefore overturned, and Alabama’s libel law, when applied to

public officials, was now unconstitutional.

The Anti-Sedition Motive

Anthony Lewis, a Times reporter who covered the Sullivan case and a subsequent law

professor at Harvard Law School,78 wrote in his book Make No Law that “Commissioner

Sullivan’s real target [in the case] was the role of the American Press as an agent of democratic

change.”79 Sullivan and other officials in the suit, he wrote, “were trying to choke off a process

that was educating the country about the nature of racism and was affecting political attitudes on

that issue.”80 Thus, he asserts that arresting sedition was the real Southern motive behind New

York Times v. Sullivan. In effect, he suggests that in the Southern United States around the

1960s, Star Chamber law was still alive and well.

Lewis is not alone. Rodney Smolla, another law professor, wrote in Suing the Press that

the suit was intended as a weapon against the Civil Rights Movement. “The last desperate

reaction of a clinging Jim Crow regime,” he wrote, “was to try to suppress the message itself,

using whatever pretextual legal devices were at hand, including the law of libel.”81 Moreover, he

asserted, “The strategy of the South was ultimately pushed to its logical end: if one could not

76 Id. at 272.77 Id. at 283.78 Lewis. Make No Law, About the Author, 335.79 Id. at 42.80 Id.81 Smolla, Suing the Press, 43.

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stop the marches, one might at least keep the marches off television and out of the

newspapers.”82 Smolla then elaborated on how that strategy would work:

No strategy for squelching the media’s portrayal of conditions in the South…carried more potential for success than the creative use of the law of libel. Certainly, jury after jury could be counted upon to deliver gigantic verdicts against the likes of the New York Times. No national media outlet could endure a succession of such verdicts, mounting up to millions of dollars of liability.83

Three things substantially support Lewis and Smolla’s sedition argument. The first is the

context in which the suit arose. As Smolla suggested, southern officials used many “pretextual

legal devices,” in addition to libel law, to combat the Movement.84 Libel law was, according to

Smolla, one among many desperate efforts, and but one legal weapon in an arsenal that would be

unleashed against the civil rights struggle. Thus, it was just another legal devise used against the

Movement.

The second supporting factor is the strategic value of the libel suits as a weapon against

the Civil Rights Movement. As Lewis suggested, the Times and other media outlets were

educating the country about the race issue in the South.85 A national press silenced by libel law

would, however, stop this education and preserve the nation’s ignorance, allowing the South’s

traditional order to survive, hidden in the dark.

The third supporting factor is the pattern of use of libel law by southern officials. In fact,

besides New York Times v. Sullivan, several other libel suits arose within the Civil Rights

context. These often-forgotten cases assist the anti-sedition argument in raising a plausible

argument that Sullivan was just one part of a larger, calculated scheme.

A. Context

82 Id.83 Id.84 Smolla, Suing the Press,85 Lewis, Make No Law, 42.

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To give it proper justice, the anti-sedition argument must begin within the context in

which the suit arose. It is apparent, for instance, that a great many southern states shot every

available legal arrow at the Movement, whether aiming true or not. With a background like that,

Libel law would seem to be just another arrow in that quiver.

Smolla helps demonstrate this by providing a laundry list of such legal weapons. He

writes:

In almost every state in the South efforts were made to undermine the various organizations that were orchestrating these efforts of high-visibility resistance. For instance, Arkansas made it illegal for any member of the National Association for the Advancement of Colored People (NAACP) to be employed by the state government, or any of its subdivisions; Louisiana required groups like the NAACP to file affidavits of nonsubversion (and let there be no doubt that in Louisiana, any such affidavit filed by the NAACP in the year 1960 would have been deemed perjurious by the state); Virginia attempted to make the NAACP’s courtroom efforts the illegal practice of law; Alabama sought to oust the NAACP from doing business within the state because its civil rights efforts had cause the state “irreparable injury.” The reported opinions of the Supreme Court in the late 1950’s and early 1960’s were punctuated with case after case striking down these heavy-handed efforts at “legal” retaliation.86

Beyond targeting its groups, southern officials also went after civil rights leaders, most

notably Dr. Martin Luther King, Jr. In fact, the very charge which “Heed Their Rising Voices”

attempted to solicit funds for is one such example. Dr. King was charged with perjury in his

Alabama state income tax return.87 It was alleged that “he had diverted money raised for the

Southern Christian Leadership Conference (which King had founded) into his own pockets

without ever reporting it as income.”88 Notably, this was the first time such a charge would be

86 Smolla. Suing the Press at 43.87 Hall. New York Times v. Sullivan at 15.88 Id.

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brought in Alabama.89 King was eventually acquitted of the charges, which Smolla say, “were a

rather transparent attempt to punish King for his civil rights activities in Alabama.”90

With all this in mind, it is apparent that many southern officials abused the law in seeking

to stifle the movement. It opens up, therefore, a strong possibility that libel law was yet another

example of such abuse.

B. Libel’s Strategic Value

The strategic value of libel law for segregationists was first presented, albeit indirectly,

by Gunnar Myrdal. Myrdal, a citizen of Sweden,91was a renowned economist, chair of

economics at the University of Stockholm, a member of the House of the Swedish Parliament,

and a director of Sweden’s national bank.92 At the University, he was regarded as “one of the

nation’s most brilliant academics.”93 Brilliant though he was, he was an unlikely candidate to

study race relations in the United States.

Nevertheless, the Carnegie Corporation recruited Myrdal in 1938 for the task of studying

race in the United States.94 Influenced by Alexis de Tocquevilles’ Democracy in America, it

sought to have an outsider, uncorrupted by American bias, lead the task of unearthing the roots

of the race problem.95 Myrdal at first refused the offer, but in September of 1938, finally

relented.96

When Myrdal arrived in the Southern United States, he was appalled at the situation of

African-Americans in the South. Most were “destitute,” deprived of substantial property

89 Edmonson, In Sullivan’s Shadow at 14.90 Smolla. Suing the Press at 29.91 Klibanoff, Hank and Gene Roberts. The Race Beat: The Press, the Civil Rights Struggle, and the Awakening of a Nation. (Random House Inc.: New York, 2006) 3.92 Id. at 7.93 Id.94 Id. 95 Id. 96 Id. at 8

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ownership, and among many other things, largely unrepresented in the court system or in jury

roles.97 Myrdal, soon after arriving, wrote to his sponsor at the Carnegie Corporation.98 “What a

terrible problem you have put me into.”99 He wrote. “I mean we are horrified.”100

Myrdal suffered in his horrified state for almost 3 years, until in 1941, he assembled his

findings in a book called An American Dilemma, which was a voluminous 1,483 pages and

15,000 pages in manuscript. 101 In his book, Myrdal concluded with some optimism that “a great

many Northerners, perhaps the majority, get shocked and shaken in their conscience when they

learn the facts [about the situation of African-Americans in the South].” In fact, he concluded,

“There is no doubt, in the writer’s opinion, that a great majority of white people in America

would be prepared to give the Negro a substantially better deal if they knew the facts.”102 But

Myrdal’s argument then took on a realist’s tone. “The average northerner,” he wrote, “does not

understand the reality and the effects of such discriminations as those in which he himself is

taking part in his routine of life.” Explaining the problem, he continued:

The northerner does not have his social conscience and all his political thinking permeated with the Negro problem as the Southerner does. Rather, he succeeds in forgetting about it most of the time. The Northern newspapers help him by minimizing all Negro news, except crime news. The Northerners want to hear as little as possible about the Negroes, both in the North and in the South.103

Myrdal thus concludes that national attention is the best hope for these plighted people. In fact,

he wrote, “To get publicity is of the highest strategic importance to the Negro People.”104

97 Id. at 8-10.98 Id. at 899 Id.100 Id.101 Id. at 7.102 Id. at 6.103 Id. at 5-6.104 Id. at 6.

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Nevertheless, publicity would elude the plight of the African-American people in the

South. Just prior to the Civil Rights Movement, for instance, “no national publication had a

news bureau in the South.”105 What’s more, between 1935 and 1940, only one prominent

African-American was featured on the front page of a national news publication.106 It was, A.

Philip Randolph, an African-American labor leader.107

As a result, African-Americans had to rely on their own presses to publicize their

maltreatment. A small African-American middle-class was growing, which produced black

newsletters. Yet, as Gene Roberts and Hank Klibanoff demonstrate in The Race Beat, these

papers “lived hard and died young.”108 Of 2,700 black newspapers that existed in the United

States, for instance, only 175 remained in 1951, and the average life of these papers was only

nine years.109

The white moderate press was a potential alternative source for publicity. Yet, these

papers paid little attention to African-Americans, and in the limited cases of when they did,

Roberts and Klibanoff argue, there was often a backlash pressuring them to conform.110

What was left was a segregationist press that seemed to be growing amid the Civil Rights

Movement. An example is the White Citizens Councils. This group emerged in Mississippi in

response to school desegregation.111 The group was a “propaganda machine,” which “cranked

out newspapers, newsletters, flyers, and even television and radio programming.”112 Within only

105 Id. at 10.106 Id.107 Id.108 Id. at 13.109 Id.110 Id. at 5.111 Edmonson. In Sullivan’s Shadow at 31-32.112 Id. at 31.

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two years, it would have 80,000 active members.113 Thus, African-Americans had scant support

in the media prior to national intervention, and instead faced fervent opposition.

With all this in mind, if southern officials could have succeeded in using libel suits to

repel the national press, it would preserve the status quo ante of a largely ignored, short-lived

black press, an often apathetic moderate press, and a press that was staunchly segregationist.

This would deprive African-Americans of Myrdal’s “publicity” and prevent, as Anthony Lewis

suggests, “national education on the race issue.”114

C. Other Libel Cases

New York Times v. Sullivan stands among those monuments of landmark Supreme Court

decisions, and its name is ubiquitously spoken in law school classrooms. Yet, what is often

forgotten, and important to the anti-sedition argument, is that Sullivan was no outlying case.

Instead, it was accompanied by a pattern of similar cases, a pattern which may sketch-out an

anti-sedition motive.

First, many commentators have noticed how seemingly simultaneous another case,

Connor v. New York Times, arose with respect to Sullivan. This case began as the result of a

Times article, written by Harrison Salisbury, entitled “Fear and Hatred Grip Birmingham,”

published on April 12, 1960.115 The article stated:

Birmingham, Alabama: From Red Mountain, where a cast-iron Vulcan looks down 500 feet to the sprawling city, Birmingham seems veiled in the poisonous fumes of distant battles…more than a few citizens, both white and negro, harbor growing fear that the hour will strike when the smoke of civil strife all mingle with that of the hearths and forges.116

113 Id. at 32.114 Lewis. Make No Law at 42.115 New York Times. Fear and Hatred Grip Birmingham, April 12, 1960.116 Id.

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The article then explained the reasons for this climate:

Every channel of communication, every medium of mutual interest, every reasoned approach, every inch of middle ground has been fragmented by the emotional dynamite of racism, reinforced by the whip, the gun, the bomb, the torch, the club, the knife, the mob, the police, and many branches of the state’s apparatus.117

The article also provided a picture of Birmingham’s police commissioner, Eugene Connor, under

which a caption read, “Police Commissioner Eugene Connor was elected in 1958 on a race hate

platform.”118

Soon after, Connor, along with 2 other city commissioners, filed a libel suit against the

Times as well as Harrison Salisbury on May 6, 1960, each asking for $500,000 in damages just

as Sullivan had done.119 Connor and the others argued that the Article “subjected them to public

contempt, ridicule, shame and disgrace.”120 Specifically, they argued, the Article:

Falsely inferred or falsely insinuated that each commissioner was derelict in his duty as a public official, that he encouraged racial hatred, that he encouraged or condoned religious intolerance, that he encouraged or condoned violence against Negroes.121

Objectively, the Article seemed sensationalist. But Eugene Connor was a vicious

segregationist. In fact, “newsmen reported that when his police officers held back a group of

white people from attacking [black demonstrators], he told the police, ‘Let those people come to

the corner sergeant. I want ‘em to see the dogs work. Look at those niggers run.”122 Connor

117 Id.118 Id.119 New York Times. 3 in Alabama Suing Times over Article, June 1, 1960.120 Id.121 New York Times. Times and Reporter Sued for $1.5 Million, May 7, 1960.122 Hall. New York Times v. Sullivan at 81.

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even went so far as to arrest 2,000 children demonstrators.123 In an Alabama courtroom,

however, Connor won and Harrison Salisbury, the articles author, was even indicted “on 42

counts of criminal libel.”124

Connor’s wrath, and southern libel suits in general, did not stop at national newspapers.

In fact, Connor would go on to sue CBS for its documentary “Who Speaks for Birmingham.”125

The documentary, featuring CBS reporter Howard K. Smith, was an hour long series of

interviews between white and black citizens of Birmingham.126 One black interviewee was

Shuttleworth, a defendant in the Sullivan case.127 When interviewed, Shuttleworth talked of his

fearfulness. “I have to have somebody to guard my house at night,” he said, “the police won’t do

it. Life is a struggle here in Birmingham, but it is a glorious struggle.”128 Shuttleworth, when

asked about the Salisbury article, agreed with many of its points.129 As a result, Connor sued

CBS, and CBS retracted the story and fired Howard Smith.130

More libel cases would be brought by southern officials. T.B. Birdsong, for instance,

“head of the Mississippi Highway Patrol,” would sue the Saturday Evening Post in 1962 for $1

million for himself, and another $220 million for each of his patrolmen.131 The suit was the

result of the Post’s article entitled “What’s Next in Mississippi,” written after the horrific

violence that ensued when James Meredith attempted to desegregate the University of

Mississippi.132 Quoting a Department of Justice official present at the scene of the incident, the

123 Id. at 82.124 Edmonson. In Sullivan’s Shadow at 57.125 Id. at 63.126 Id.127 Id. at 64.128 Id.129 Id. at 65.130 Id. at 65-66.131 Edmonson, In Sullivan’s Shadow at 7.132 Id.

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article stated, “A sizeable portion of the blame must go to the gray-uniformed men of the

Mississippi Highway Patrol. Those bastards just walked off and left us.”133

Later in 1965, Edwin Walker, a former Major General in the United States Army and a

devoted segregationist, was awarded a $3 million judgment against the Associated Press by a

Mississippi jury.134 Walker had filed the suit because he claimed the A.P. had falsely identified

him as a leader in the violence perpetrated during the Ole Miss riots.135 He claimed this even

though the majority of reporters present at the incident identified him as such.136

Although such cases might be attributable to a financial motive in the wake of Alabama’s

decision in Sullivan, it is equally likely that for these segregationists, money was just another

bonus behind a predominantly anti-sedition motive. With all this in mind, a series of libel cases

were brought by southern segregationists against civil rights reporting. These cases were

brought within a context of abuse with respect to the law against civil rights groups and leaders,

and such cases had the potential to strip the wings from Congressman Lewis’ Civil Rights bird.

Such is the crux of the anti-sedition argument.

The Defense of Honor Motive

In contrast to Lewis and Smolla, Kermit Hall has advanced that the suit truly put southern

honor at stake. Hall takes the position that although punishment for the Times’ position on civil

rights may have been a goal for some plaintiffs, this is a deficient reading of the case. In fact, he

wrote in New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press, “The plaintiffs

saw not only their own honor and dignity impugned, but that of the South as a whole.”137 Hall

133 Id. at 8.134 New York Times. Walker is Awarded $3 Million in a Libel Suit against the A.P., October 30, 1965.135 Id.136 Edmonson. In Sullivan’s Shadow at 76.137 Hall. New York Times v. Sullivan at 44.

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does not exclude Lewis or Smolla’s sedition argument. He states, “There is no doubt…that one

strand of the Sullivan case, identified by Lewis and others, stemmed directly from white

opposition to the Civil Rights movement. Yet what all commentators, including Lewis have

missed, is that Sullivan was also a case about the role of the press in the social order.”138 In fact,

he writes, “The South…had a long tradition of treating reputation more as honor and dignity.139140

The Sullivan case, he goes on, “exploded” this cultural assumption, making this the “the true

revolution wrought by New York Times v. Sullivan.”141

A. Background to Honor:

To adequately understand Hall’s argument, a definition of “honor” may be necessary.

However, an exact definition of the word is quite elusive. In fact, this inability to cage the

concept ironically plays all the more into Hall’s argument.

Shakespeare well captured how illusory the task of defining honor might be. In Henry

IV, for instance, Shakespeare ascribes to each character a different meaning of honor.142 To the

King, for instance, honor is noble behavior.143 To Hotspur, it is battlefield glory.144 But it is

Falstaff, the fat, drunkenly knight who has all the literary markings of a character of ill-repute,

who ascribes to no definition and instead scoffs at the concept:

What is honor? A word. What is in that word, “honor?”What is that “honor?” Air. Quite a bargain! Who has it? A guy who died last Wednesday. Does he feel it? No. Does he hear it? No. It can’t be detected, then? Right—not by the dead, anyway. But won’t it live with

138 Hall, Kermit. L. Dignity, Honor & Civility: New York Times v. Sullivan. (OAH Magazine of History: Winter 1995) 34. 139 Dignity is often synonymous with honor. It is defined as, “The state or quality of being worthy of respect.” Merriam-Webster Dictionary. 140 Hall. Dignity, Honor & Civility at 34.141 Id. at 36.142 Sparknotes. Henry IV: Themes, Motives, and Symbols: The Name of Honor.143 Id.144 Id.

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the living? No. Why? Slander won’t allow it. That’s why I don’t want any part of it. Honor is nothing more than a gravestone, and that concludes my catechism.145

Admittedly, “honor” can be defined in words. Webster’s dictionary, in fact, achieved this

by defining “honor” as “high respect and esteem.”146 Dictionary.com also achieved this but

defined honor as “honesty, fairness, or integrity in one’s beliefs or actions.”147 Webster’s

definition appears to introduce an external conception of honor, focusing on respect and esteem.

On the other hand, the online dictionary seems to conceptualize honor as something internal. It

centers upon a code of behavior or faithfulness to one’s beliefs. Each definition introduces a

facet to honor: the first, that honor is how society perceives you; the second, that it is how you

perceive yourself. An external and internal distinction within honor is important. Though not

mutually exclusive, the two components could form very different notions of honor when they,

like a chemical compound, exist in different amounts.

In order to lay the foundation for Hall’s argument, it is important to demonstrate how

evolutionary and diverse the conception of “honor” really is. In Southern Honor, for instance,

Bertram Wyatt-Brown, a distinguished historian of the South, demonstrates that honor has well

eluded universality. He suggests, in fact, that although the basic idea of honor has remained

relatively stable for centuries, changing forces within such things as culture, demographics, and

economics have evolved the concept differently within each of its particular habitats.148 Indeed,

he shows that honor is very much a Darwinian finch, and its conception has existed in different,

145 Shakespeare, William. Henry IV. Part I, Act IV, Scene I. 146 Merriam-Webster’s Dictionary: Honor.147 Dictionary.com: Honor.148 Wyatt-Brown, Bertram. Southern Honor: Ethics and Behavior in the Old South. (Oxford University Press: 1983) 4.

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yet simultaneous forms. Wyatt-Brown instantiates this in the case of the American North and

South.

A. Development of “Honor” in the South verses the North

Wyatt-Brown maintains that honor became two very different things in the North and in

the South. He attributes this to the drastic difference in each regions early development. For

instance, in the antebellum North, which Wyatt-Brown refers to as “dynamic,” industrialization

and urbanization contributed to a climate of mainly secular, economic concerns. This fostered,

he suggests, a devalued notion of honor that remained, in residuary form, as a private idea of

personal morality and individual economic concerns.149 Looking back to the previous definitions

of honor, this suggests honor in the North would take on a predominantly internal conception,

thus diminishing its social importance.

In the South, however, the rapid industrialization and urbanization so common in the

antebellum North would be relatively nonexistent, explaining Wyatt-Brown’s decision to single

out the North as “dynamic.” He succinctly draws the distinction, stating, “the quickly

industrializing North, with its urban, polyglot populace, had increasingly little in common with

the still agrarian, underpopulated, and deeply parochial South.”150 Thus, the cultural changes that

would transform the North’s conception of honor never set foot in the old South. The North and

South, sibling regions, were thus growing less recognizable.

Because of a static environment, Wyatt-Brown demonstrates that an older concept of

honor, based extensively on the very public (external) notion of one’s standing in the social

order, persisted in the South.151 Absent forces of change, he suggests, honor in the South would 149 Id. at 19-20150 Id. at 20.151 Id. at 21.

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not be subject to erosion.152 He asserts, in fact, that community consensus is essential to defining

the facets of honor.153 It makes sense, therefore, that a “polyglot” North, riddled with a diverse

urban immigrant population, could not make such an agreement.154 As a result, honor could not

form an extensive thread in the North’s social fabric. In the homogeneous South, however,

consensus would be easy, and when social agreement is readily attainable, it is often more

powerfully enforced.155

Wyatt-Brown concludes by calling honor in the old South the “keystone in the arch of its

social order.” 156 In contrast, honor in the North would be stripped from its social arch, as

diversity would be the mason that continued to rebuild and add to its bricks. “No longer,” he

asserts, would honor “mediate” between the person and the public in the North.157 As to the

agrarian South, however, it would remain as its badge.

Beyond Wyatt-Brown’s work, other theories exist as to why honor was (and perhaps still

is) disproportionately important to southern society. One theory, for example, holds that the

South’s sensitivity to honor was and may continue to be a creature of its past, a past defined by

its cultural ancestors. In fact, herding ancestors that primarily composed the early settlers of the

South may be attributable.158 The settlers of the South were chiefly from herding cultures “on the

fringes of Britain.”159 In these societies, “lawlessness, instability, political upheaval, and clan

152 Id. 153 Id at xv.154 Wordpress. Honor in the Old South. Wordpress.com. http://honorandjusticeintheoldsouth.wordpress.com/honor-in-the-old-south/.155 Id.156 Wyatt-Brown. Southern Honor at 21.157 Id. at 20.158 Bowdle, Brian; Cohen, Dov; Nesbitt, Richard E.; Schwarz, Norbert. Insult, Aggression, and the Southern Culture of Honor: An “Experimental Ethnology.” (Journal of Personality and Social Psychology, Volume 70, No. 5: May 1996). 159 Id.

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rule had been present for centuries,” and in Britain, such groups were “forced to be self-reliant in

their pursuit of justice.”160

To maintain order in these societies, “unity, self-reliance,” and “retributive justice”

predominated.161 The “law of lax talionis, the rule of retaliation,” was the “prevailing

principle”,162 and in order to survive, an “ethic of self-protection” thrived.163 This ethic mandated

that the individual preserve his status in society or else fall victim to being cast as a prey. In a

sense, honor was language. Affronts were to be met with retribution.164 Otherwise, the

individual would communicate to others that he was weak, imperiling his status in the social

order.165 Thus, honor was everything to society, and sometimes to the individual, a matter of life

or death.

The South’s aristocratic roots may also be attributable for its acute sensitivity to honor.

As Kermit Hall mentions in New York Times v. Sullivan: Civil Rights, Libel Law and the Free

Press, the old South had a social structure much akin to feudalism.166 As previously mentioned,

feudal societies revolved around social relations and the impugnation of a noble’s honor was

often violently answered. The old South, in a sense, was arguably very much feudalism in

American clothing. Plantations replaced estates; old names titles; slaves serfs. The South in the

times of Sullivan would thus have a heritage of honor in its raw, feudalist form.

Theories aside, studies have been conducted demonstrating that the southern sensitivity to

honor may still be breathing today. In fact, a team of psychologists conducted a study in 1996

160 Id.161 Id.162 Id., quoting Fischer, D.H. Albion’s Seed: Four British Folkways in America. (Oxford University Press, New York: 1989) 765.163 Id.164 Id.165 Id.166 Hall. New York Times v. Sullivan at 42.

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entitled Culture of Honor to prove just that.167 Using approximately 40 southerners and 40

northerners, the experiment subjected participants in each group to various insults, publicly and

privately.168 The results demonstrated that southerners had more aggressive responses to the

insults, while “northerners were able to brush off the insults and remain unaffected.”169 In fact,

after being insulted, cortisone levels rose “79% for insulted southerners” and only “33% for

insulted northerners.”170 Testosterone levels likewise rose disproportionately higher in

southerners than in northerners.171 Notably, the study concluded that “southerners who were

insulted in front of others saw themselves as diminished in masculine reputation and status.”172

This suggests that regardless of theory, southerners appear to be more sensitive to honor than

northerners. Whether tendered by a heritage of herding or of aristocracy, therefore, honor may

really have been at issue in New York Times v. Sullivan.

B. Kermit Hall’s Honor Argument

As the development of honor in the North and in the South differed so greatly, Kermit

Hall begins his argument by suggesting that this difference may have translated into libel law.

He states, “There is some evidence that in the North use of libel law to protect one’s reputation

may have been on the wane in the mid twentieth century,” whereas in the South, “personal

reputation still did matter.”173 He backs his assertion by pointing to David Riesman, an attorney

and sociologist (and coincidentally a former professor at the University at Buffalo Law School).

Riesman asserted that “in America’s capitalistic society, where reputation was only an asset or

good will,” having “little intrinsic value otherwise,” libel law was somewhat un-American, 167 Bowdle et al. Insult, Aggression, and the Southern Culture of Honor.168 Id.169 Id.170 Id.171 Id.172 Id.173 Hall. New York Times v. Sullivan at 42.

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which contrasted to Europe, where personal reputation was still a heightened concern growing

from a feudalist vestige.174

Riesman’s analysis appears to bring Wyatt-Brown back into play. As the North had a

greater history of capitalism than the South, the North would experience more of this

devaluation. In contrast, such erosion would escape the traditionally agrarian South. As Kermit

Hall acknowledges, “the South before the civil rights era retained many aspects of a feudal

society.” 175 Honor as reputation in the South, therefore, remained in Wyatt-Brown’s arch.

To tie honor to the Sullivan case, Kermit Hall uses Grover Hall, a prominent white

southern newspaper editor at that time, as his rope. Grover Hall, a political moderate, was a

distinguished editor of the Montgomery Advertiser in Alabama around the time of the Sullivan

case.176 Hall’s father was a Pulitzer Prize winning journalist and a “crusading editor” of the

Advertiser, in which he firmly opposed the violence perpetrated by the Ku Klux Klan.177

Presented with the Civil Rights movement, Hall followed a similar path as his father in

condemning the violence carried out against protestors. After Klansmen had used baseball bats

to brutally beat civil rights demonstrators, who were protesting outside the Alabama state capitol

building, for instance, Hall strongly objected to the violence. In fact, in the Advertiser “he

condemned the attack and rebuked Sullivan for failing to bring [the violence] to a halt.”178

Segregationist newspapers had, however, nothing but applause. The Montgomery Home News,

for example, wrote: “The crisp crack of a hickory bat on a Negro head snapped the people out of

174 Id.175 Id.176 Id. at 14.177 Hall. Dignity, Honor & Civility at 34.178 Hall. New York Times v. Sullivan at 14.

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their apathy into the realization that the steady, cold siege against their way of life was now

breaking out in…obviously Communist-inspired racial strife.”179

Thus, Hall stood on common ground with the New York Times in criticizing segregationist

violence. Kermit Hall even points out that Grover Hall admired the Times. In fact, he writes,

Grover Hall “viewed the Times as a model of modern newspaper reporting.”180 As a result,

Kermit Hall concludes that, as a pressman himself, he “should of wanted to enhance the right of

the free press to comment critically on public figures.”181 He should therefore have sided with

the Times.

Yet, after the Times published “Heed their Rising Voices,” Grover Hall did no such thing. In

fact, he passionately rebuked the newspaper in a biting editorial. “Lies, lies, lies,” he exclaimed

in his Advertiser, referencing the article.182 “Possibly willful ones,” he added.183 Continuing, he

called it an effort by the Times “to prey on the credulity, self-righteousness and misinformation

of northern citizens.”184 He even likened it to the old “hysteria and mendacity of abolitionist

agitators.”185 What’s more, Hall would take his opposition to the court, as he would later testify

on behalf of Sullivan,186 whom Kermit Hall asserts, Grover Hall despised.187

What accounts, therefore, for this apparent contradiction? Cultural differences Kermit

Hall answers. In fact, Hall explains that the South viewed reputation as honor.188 Pursuant to

this, manners of civility set the rules for public discourse.189 In the area of governance, honor 179 Id.180 Id. at 29.181 Id.182 Id.183 Id.184 Id.185 Id.186 Hall. Dignity, Honor & Civility at 35.187 Hall. New York Times v. Sullivan at 29.188 Hall. Dignity, Honor & Civility at 36.189 Id.

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would have to be protected by such rules if the community wanted the “best men” to lead.190 In

the North, however, reputation was not about honor, but rather “property” to be “tested in the

marketplace of ideas.”191 Manners of civility as protection, therefore, were irrelevant in its

discourse. Thus, the Times’ sensationalist reporting may have played by Northern rules, but it

violated those of the South and impugned its honor.

Hall’s argument makes a great deal of sense and seems to be corroborated by some of the

theories previously mentioned. First, if libel law protects reputation, a culture of honor would

necessarily equate reputation as honor. This brings Wyatt-Brown back into mind. As the static

environment of the South preserved the elevated notion of honor, reputation with respect to libel

law would inevitably gravitate toward one’s honor. Furthermore, the dynamism that eroded that

conception in the North would strip honor from personal reputation. The residual private notion

of honor, therefore, would be unaffected by public discourse, and especially, by a sensationalist

press.

Second, with respect to manners of civility, Hall’s argument is compelling. A society

that emphasizes honor would necessarily develop rules by which to protect it. Again, as Wyatt-

Brown suggests, a “polyglot” North192 would be less likely to reach agreement on a code of

civility, subjecting it instead to “the market place of ideas.”193 In the South, however, a

consensus would be easier to achieve. Looking back to the herding cultures for other evidence,

moreover, affronts to honor subjected an offender to retributive justice.194 Thus, manners of

190 Id.191 Id.192 Wyatt-Brown. Southern Honor at 20.193 Hall. Dignity, Honor & Civility at 36.194 Bowdle et al. Insult, Aggression, and the Southern Culture of Honor.

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civility might be more than just public politeness, but a means by which to protect one’s person,

as affronts to honor were historically met by “lex talionus.”195

The importance of manners of civility to an honor culture is further evidenced by the

psychological study mentioned previously. In fact, the study found that before being subjected

to insults, southerners “were more polite and deferential” than their northern counterparts.196

This suggests that even at casual levels, southerners act with manners of civility, which may very

well be attributable to their culture’s emphasis on honor.

Third and finally, with respect to “protecting the best men,”197 a culture’s emphasis on

honor would likely extend to its office-seekers. As Wyatt-Brown demonstrated, honor in the old

South was “the keystone in the arch of its social order,”198 and based on the psychological study,

it is likely that this legacy ingratiated itself in future southern culture. Furthermore, government

is arguably the apex of the “social arch,”199 and it is likely that an individual in an honor culture

would be reluctant to hold office if it exposed their honor to a diminished degree of protection.

Thus, in the Southern region, if the best men are sought for public office, they would need

assurances that their honor would be protected. Manners of civility would, therefore, likely

provide this shield and define the extent to political criticism.

Nevertheless, this approach would ultimately be rejected by the Supreme Court’s

decision.200 And as Kermit Hall maintains, “This was, for better or worse, the real revolution

wrought by New York Times v. Sullivan.”201

195 Bowdle et al. Insult, Aggression, and the Southern Culture of Honor. quoting Fischer, D.H. Albion’s Seed: Four British Folkways in America. (Oxford University Press, New York: 1989) 765.196 Id.197 Hall. Dignity, Honor & Civility at 36.198 Wyatt-Brown. Southern Honor at 21.199 Id.200 Hall. Dignity, Honor & Civility at 36.201 Id.

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Conclusion

With all this in mind, Lewis and Smolla’s argument is supported by circumstantial

evidence; Hall’s by a combination of such evidence and theory. Both arguments, if judged in the

context of a case, would unlikely satisfy the criminal standard of proof beyond a reasonable

doubt. At the same time, however, the corroborating evidence would likely satisfy the civil

standard of a preponderance of the evidence. What’s more, if held by verdict, both would likely

be found guilty as true. In fact, it is most likely that motive depended on the group within which

one belonged. For the segregationist, anti-sedition likely filled their minds; for the white

moderates, however, New York Times v. Sullivan was likely an implicit cultural rejection of

their concept of honor, and perhaps, yet another act of northern aggression.

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