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None of the men who brought suit had actually been named in the ad, but the Times itself admitted that the copy did contain inaccuracies: police had not padlocked the student dining hall; Dr. King had been arrested only four times, not seven. In an atmosphere steam-heated by the race issue, Alabama juries decided that the Times ad was indeed libelous. Commissioner Sullivan and Mayor James were awarded every penny they asked for; the Times appealed the Sullivan judgment all the way to the U.S. Supreme Court.
Robust Debate. Whatever merit Alabama courts had detected in Commissioner Sullivan's case was totally demolished. The First Amendment, said the Supreme Court, clearly spelled out "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." This commitment, the court has long held, binds the states through the 14th Amendment, which forbids them to abridge a person's liberty without "due process of law." Added the court: "The Times advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for constitutional protection."
As if to emphasize its point, the court took two further steps. It went out of its way to brand as unconstitutional the Sedition Act of 1798, which had levied heavy fines against anyone who uttered or printed "false, scandalous and malicious" statements against the U.S. Government or its officers. It also anticipated any ambition of Commissioner Sullivan's to revive his suit back home in Alabama. The Times may have been guilty of negligence in letting slip a few misstatements, said Justice William J. Brennan for the court, but it was not guilty of malice: "We consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands." Moreover, "there was no reference to respondent in the advertisement either by name or official position."
Say What You Please. Strong as the Supreme Court opinion was, it did not satisfy some of the most liberal Justices on the bench—Arthur J. Goldberg, former U.S. Secretary of Labor, and Justice Hugo L. Black, the court's most indefatigable exponent of free speech. Both wrote concurring opinions in which Justice William O. Douglas joined.
"If the rule that libel on government has no place in our Constitution is to have real meaning," said Goldberg, "then libel on the official conduct of the governors likewise can have no place in our Constitution." He proposed granting critics total immunity, partly on the grounds that a public official has "equal if not greater access" to public forums, and can there readily neutralize any wrongs done to his reputation.
Justice Black went even farther. The Sullivan judgment, said he, offers "dramatic proof that state libel Taws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment. I regret that the court has stopped short of this."