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Ask the authors: Conflict in the Court — an inside look at New York Times v. Sullivan and its progeny

The following is a series of questions posed by Ronald Collins on the occasion of the publication of The Progeny: Justice William Brennan’s Fight to Save New York Times v. Sullivan (American Bar Association, 2014).

Welcome, Lee and Stephen. Thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your latest book.

Question: One of you is a media lawyer (Levine) and the other a law professor (Wermiel). Given that, you seem a natural pair to write this book. Can you say a few words about how it came about?

Wermiel:  I first came across Justice Brennan’s unpublished defense of Sullivan in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) while preparing a talk for the ABA Forum on Communications Law to promote the Brennan biography I co-authored, Justice Brennan: Liberal Champion.  That material did not make it into the biography, but I mentioned it to Lee, who was intrigued by the idea that it and other unpublished documents in Brennan’s papers might shed valuable light on Brennan’s approach to First Amendment cases and the impact that it all ultimately had on the law. We got together and started reviewing the Brennan papers with that idea in mind. We pretty quickly concluded that there was a wealth of such material, too much in fact to compress in any meaningful way into a single book.

Picking up on Brennan’s papers in Greenmoss Builders, however, we decided to focus on the surprisingly large number of defamation cases that the Court decided during Brennan’s tenure and discovered that, in the roughly twenty-five years after Sullivan during which he served on the Court, he demonstrated an obvious passion for both preserving what he thought he had accomplished there and, to the extent he could, extending its reach when he deemed it necessary to fulfill Sullivan’s promise. We thought we could tell a good story about how all that played out in ways that also add to the overall understanding of a very important line of cases.           

Question: In many respects, this is an inside account of the struggle to preserve and perpetuate New York Times Co. v. Sullivan. Can you explain that insider’s perspective?

Levine:  As Steve has explained, the impetus for the book was the Brennan biography and the wealth of unreported materials in Brennan’s papers about his First Amendment decisions that simply could not, as  a practical matter, be included in it. From the beginning, therefore, our mindset was to tell this story about Brennan’s role in crafting modern First Amendment law from his perspective and to focus specifically on where he wanted to take the law following Sullivan and how successful (or not) he was in getting there.

Along the way, we decided that we needed to consult the available papers of some other Justices as well – most notably Justices Byron White, Lewis Powell and William Rehnquist – either to fill in holes in the Brennan papers or to understand more clearly what Brennan thought he was up against.  Still, this book is definitely Brennan’s account of the substantive and strategic draws he made, starting in Sullivan, in crafting what was essentially a new body of law in the name of the First Amendment.

Question: If left to his own devices, where might Justice William Brennan have taken Sullivan after it was handed down in 1964? Your book contains several unpublished opinions, for which Brennan could not muster a majority. Share with us a little something on that score.

Wermiel: The record of the Court’s internal deliberations, including unpublished drafts, suggests that Justice Brennan would have made it even tougher for plaintiffs to prevail in libel cases. He would have insisted that judges look at the entire context of a case and make an initial determination of whether material in a lawsuit was capable of having defamatory meaning. Next, he would have made it clear that there was no place for laws making libelous communications a crime. Additionally, he would have made the focus of libel law the subject matter of the words, not the identity of the person about whom they were spoken or written. And finally, he would have made it very clear that these rules applied to all speakers or publishers, not just to the news media.

Question: There is much in The Progeny about the changing relationship between Justices William Brennan and Byron White insofar as the First Amendment and defamation law are concerned. Tell us a little a bit about that.

Levine:  Anyone who has read the Court’s decisions in defamation cases specifically, and in First Amendment cases involving the press more generally, is aware that, some years after joining Justice Brennan’s opinion in Sullivan, Justice White became disillusioned both with Brennan’s handiwork there and apparently with the media itself.  Ultimately, he went so far as to make those views explicit in his concurring opinion in Greenmoss Builders. What was remarkable to us from Justice Brennan’s papers is just how committed Justice White was to Sullivan, and indeed to working with Justice Brennan to expand its reach, before his public change of heart.

In the book, we relate one revealing episode in which White, who was very much out in front of Brennan on this, devised and implemented an ingenious (and arguably devious) strategy in Time, Inc. v. Hill (1967) that not only changed the result in the case (the Justices has initially voted in conference overwhelmingly to affirm the judgment for false light invasion of privacy that the Hills had secured in the New York courts against Life Magazine) but expanded the reach of the Sullivan  “actual malice” standard beyond suits by public officials and public figures to cases involving speech addressing matters of public concern, regardless of the status of the plaintiff (at least in false light cases). That was, needless to say, a big step that effectively set the stage for the short-lived and ill-fated plurality opinion that Brennan wrote a few years later in Rosenbloom v. Metromedia, Inc. (1971), adopting that same standard in defamation cases, as well as the Court’s (and White’s) ultimate rejection of it in Gertz v. Robert Welch. Inc. (1974).

We can’t know for sure what caused Justice White to move from perhaps Justice Brennan’s most reliable ally in these cases to his most formidable adversary, but the book does offer some clues, including a fascinating (at least to us) conversation that Steve himself had with Justice White about the press, Brennan, and defamation while they both were still serving on the Court.

Question: The Progeny reveals how the outcome in a case changed (often dramatically) following the initial vote at conference and the assignment of the opinion – and this occurred in several cases. Would you please give our readers a sense of how that played out?

Levine: The number of times the result of a case changed following the initial vote at conference and what a substantial impact at least some of those changes had on the law as we now know it was actually a surprise to us. As I’ve already noted, following the conference after what would become the first of two arguments in Time, Inc. v. Hill, Justice White engineered something of a coup that turned what had been a very sharply anti-press majority opinion by Justice Abe Fortas into what that opinion ultimately became – an angry dissent from a sweeping ruling in favor of a media defendant that  expanded the reach of the actual malice standard.

Perhaps most significantly, however, our book documents how, in Philadelphia Newspapers v. Hepps (1986), Justice Sandra Day O’Connor dramatically switched her vote and turned a 5-4 majority for placing the burden of proving truth on the defendant in non-public figure cases into a 5-4 majority placing the burden on the plaintiff to prove material falsity.

Our book also documents how and why Justice Brennan, as the senior associate justice in the majority, came to assign the opinion to Justice O’Connor as well as how, a few short years earlier, the Court not only sought to seize the opportunity to decide the same issue, but most likely would have come out the other way if it had succeeded. Needless to say, the placing of the burden of proving falsity on plaintiffs in Hepps has had a dramatic practical and doctrinal impact on not only the law of defamation, but on the Court’ s construction of the First Amendment in other cases, ever since.

Question: I was fascinated to read about the interaction between Chief Justice Warren Burger and Justice Brennan in the post-Sullivan defamation cases. What can you tell us about that interaction?

Levine:  Justice Brennan’s papers leave little doubt that, shortly after he became Chief Justice, Warren Burger took great pains to deprive Brennan of the authority to write for the Court in defamation and related First Amendment cases specifically because he feared what Brennan would write and the extent to which he would seize the opportunity to expand the scope of Sullivan.  Although early on in his tenure, Burger did assign Brennan to try to craft a majority opinion in Rosenbloom (Burger ultimately joined the plurality opinion that Brennan wrote because, he later said, he could not stomach the thought of awarding money damages to a “smut peddler”), thereafter, the Chief Justice would with some regularity vote with a majority that included Brennan for the apparent purpose of controlling the assignment and then, somewhere down the road after someone other than Brennan had crafted the Court’s majority opinion, change his vote.

It appears that Justice Brennan took specific offense to this practice in Bose v. Consumers Union (1984), which was decided at about the time of Sullivan’s twentieth anniversary and which Brennan apparently thought ought therefore have been his to write. Chief Justice Burger, however, assigned the majority opinion to Justice John Paul Stevens, although he later declined to join Stevens’s opinion and instead concurred only in the judgment, without explanation.

Question: Anyone interested in First Amendment law or constitutional law generally might be a little more than surprised by the role played by William Rehnquist, after he became Chief Justice, in the defamation line of cases. What was that role and how determinative was it?

Wermiel: William Rehnquist seemed quite antagonistic to Sullivan when he was an Associate Justice, but then as Chief Justice, he wrote the Court’s opinion in Hustler Magazine v. Falwell (1988), which generously applied the principles of Sullivan to the tort of intentional infliction of emotional distress and expanded First Amendment protection for parody, satire and other criticism of public figures.

In one of his interviews for the biography, Brennan told me he thought that Rehnquist’s opinion in Falwell was “remarkable,” and even suggested the press “ought just to kiss” Rehnquist for it. Brennan felt that this emphatic reaffirmation of Sullivan by Rehnquist remarkably put to rest the ongoing concern, which stemmed from White’s opinion in Greenmoss Builders, that Sullivan might be in danger of being overruled.

Question: Your book suggests that Justice Brennan had somewhat of a low regard for the press. If so, why did he care so much about this area of the law, and about Sullivan in particular?

Wermiel: Justice Brennan’s files and the interviews I conducted with him make it clear that, in terms of personal contact and experience, Brennan did not really trust the press and did not want to have much to do with reporters for most of his Court tenure. In correspondence in the 1960s, he declined suggestions that he do press interviews while on the road giving speeches, explaining that he feared being misquoted or taken out of context. He felt that the press was too ready to stomp on the privacy of individuals and knew too few bounds. But in this he was a study in contradictions. He avidly read newspapers every morning and was unsurpassed on the Court in his belief in the importance of a free press to a well-informed democracy. And in the 1980s, he became something of a media darling, giving interviews to many news outlets in 1986 when he turned eighty and celebrated thirty years on the Court.

Question: Justice Antonin Scalia has expressed some reservations about the legitimacy of Sullivan, at least insofar as its purported lack of fidelity to the Framers’ original intent is concerned. What, if anything, do you think might come of that?

Levine:  In short, nothing. I am fairly confident that not even Justice Scalia would advocate that Sullivan be revisited. As Steve has already explained, whatever momentum might have been building to do so after Justice White provocatively abandoned Sullivan in his opinion in Greenmoss Builders was effectively halted when Chief Justice Rehnquist came eloquently to Sullivan’s defense four years later in Falwell. 

I predict (and hope) that the attention that will justifiably be paid to Sullivan this year, on the occasion of its fiftieth anniversary, will serve to cement its legacy as the Court’s seminal decision construing the speech and press clauses of the First Amendment.

Although our book certainly documents the bumps in the road over the last fifty years, we at least came away from this project with the firm belief that Justice Brennan did our law a great service in Sullivan and that it remains today, as Alexander Meiklejohn put it at the time it was decided, “an occasion for dancing in the streets,” the occasional pothole notwithstanding.     

Question: Do you think that some of the revelations made in your book might one day be tapped by a future Court to reconsider the wisdom of the Sullivan holding? Or do you think that those revelations cut the other way?

Wermiel: We tried to let the documents tell the story and not to stack the deck, but in the end, I think the story we tell supports the longevity of Sullivan. To be sure, we thoroughly canvassed documents that argue against the rule in Sullivan or its expansion. But while the Court certainly curtailed the expansion of Sullivan in cases like Gertz and Greenmoss Builders, the Justices seemed in the process to settle on the basic underlying rule. A new Supreme Court majority can reconsider and undo anything, as we know, but it is safe to say that Justice Brennan left this world believing that Sullivan was secure.

Question: The Progeny benefitted greatly from the preservation of several of the Justices’ written or typed conference notes and memoranda. On that score, what difference, if any, do you think the digitalization of such information will mean for future scholars of the Court?

Wermiel: The future for Supreme Court scholars is an uncertain one from my standpoint. The good news, as you say in your question, is that digitalization of documents will make access much easier and more readily usable. Lee and I worked with the University of Washington Law Review, for example, to create links to online documents to which we referred in our article telling the story of the Greenmoss decision, The Landmark that Wasn’t: A First Amendment Play in Five Acts (2013). But while access may get easier, what documents will be available remains to be seen.

We don’t know whether any new collections of Justices’ papers will be as extensive as the Brennan or Blackmun or Powell papers, or when they will be available to researchers. We also do not know how the onset of computers in the Court will affect future archives – will memos and exchanges among Justice’s chambers continue to be preserved in files or will email and computer usage shrink the size and value of future archives?

Question: Do you have more papers from the Brennan cache that might be used for similar scholarly purposes?  If so, to what topics or cases might such papers relate to?

Wermiel:  There are certainly more papers, and I think there are more stories to be told in an array of fields. But remember, there were a couple of things that make The Progeny an important story. First  is the pivotal role Brennan played in defining the field and then fighting to save it. Second  is the fact that we were able to tell the story from Justice Brennan’s perspective but with insights from the papers of numerous other Justices, as well. It would take some real thought, research and planning to identify and develop other fields in which Brennan played the same central role defining the field and then working to preserve it. But since his influence touched so many facets of constitutional law, it is certainly possible to explore other areas.

Recommended Citation: Ron Collins, Ask the authors: Conflict in the Court — an inside look at New York Times v. Sullivan and its progeny, SCOTUSblog (Jan. 31, 2014, 11:44 AM),