Celebrating two First Amendment landmark moments

Mar 17, 2014

By Gene Policinski
Inside the First Amendment — March 13, 2014

No one I know sent flowers or candy, but on March 9 we all had cause to celebrate the anniversaries of two very different First Amendment landmark moments.

Sixty years ago, on March 9, 1954, CBS’ Edward R. Murrow hosted an episode of the prime-time television program “See It Now,” in which he successfully exposed Sen. Joseph McCarthy’s mean-spirited and shoddy tactics in pursuing alleged communists in the U.S. government.

And on March 9, 1964, the U.S. Supreme Court, in deciding New York Times v. Sullivan, set a new national standard for “uninhibited, robust and wide-open” discussion on matter of public concern and on the performance and conduct of public officials. Some say the ruling effectively provided a second ratification of the First Amendment’s protection of the freedoms of speech and press.

The Murrow broadcast program contributed to McCarthy’s downward slide toward Senate censure later that year, prompted also by eight weeks of misbegotten televised hearings targeting the U.S. Army. McCarthy had soared to national fame following a 1950 speech in which he claimed to have the names of “205 communists” in the U.S. State Department. By 1954, his combative style and high-profile congressional hearings involving hundreds of government officials had captured national attention and boosted his political power.

With film clips showing McCarthy’s tactics and a no holds-barred narrative, Murrow told viewers that “no one familiar with the history of this country can deny that congressional committees are useful. It is necessary to investigate before legislating, but the line between investigating and persecuting is a very fine one and the junior Senator from Wisconsin has stepped over it repeatedly.”

Murrow said to his audience that “we must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. ... We are not descended from fearful men — not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.”

A decade later, the Supreme Court ruled in a case involving an advertisement published in The New York Times in 1960. The ad claimed “an unprecedented wave of terror” against civil-rights workers, particularly in Alabama. Even though a Montgomery, Ala., city commissioner, L. B. Sullivan, was not named, he sued the newspaper and those who “signed” the ad, citing a number of factual errors. Alabama law — and what well may have been biased state courts — favored Sullivan and he was awarded $500,000 in damages.

In overturning the verdict, the U.S. Supreme Court set out a new libel standard for public officials: “actual malice,” a high standard requiring proof the speaker or writer knew a statement was false, or had recklessly disregarded whether it was true or false.

Justice William Brennan Jr., citing an earlier decision, Whitney v. California, wrote in the Sullivan opinion that “public discussion is a political duty.” Brennan said the court “ ... 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 and public officials.”

Neither Murrow’s medium nor the Sullivan decision survives unscathed. The news media, protected in part to be a “watchdog on government,” is castigated as biased, inept or even irrelevant. Some legal critics, including Justice Antonin Scalia, see Sullivan as an affront to the intent of the nation’s founders in balancing freedom speech and protection of reputation and as an intrusion on each state’s right to create its own libel laws.

But none can deny that each, in its own way, helped re-shaped contemporary American life and how as a nation we perceive and apply our core freedoms of free press and free speech.

In an era in which few Americans can name the five freedoms of the First Amendment (religion, speech, press, assembly and petition) — and more importantly, many aren’t sure how those freedoms apply to their daily lives — Murrow, Brennan and colleagues provided historic proof of the power of the rule of law and the ultimate value of the Bill of Rights.

The Murrow and Sullivan anniversaries are opportunities for more than a celebration of history. Rather, they are a chance to revel in our individual freedom to speak out, and in our power to challenge the powerful.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org.