The case that made Watergate possible

Monday Book Review

October 14, 1991|By Steven Stark

MAKE NO LAW: The Sullivan Case and the First Amendment.

By Anthony Lewis.

Random House.

354 pages. $25. AS OUR foremost teller of non-fiction legal tales, Anthony Lewis is the poet laureate of the legal process. In his hands, the complicated workings of our legal system -- its baffling procedures, customs and history -- are explained with such sympathy and narrative ability that they assume a significance befitting what may be, after all, the most successful experiment in law and government ever established.

In his acclaimed book, "Gideon's Trumpet," Lewis chose to tell the story of how the case of one pauper established the right of all indigent criminal defendants to be represented by a lawyer. In his latest work, "Make No Law," Lewis -- a columnist for the New York Times -- takes on the job of explaining the evolution of the law of libel, and how it has affected free speech, the press and the conduct of government. Though it is a difficult task, Lewis does it splendidly, with a chronicle that reads more like a good mystery novel than a legal text.

Working from interviews, trial transcripts and the invaluable memos and notes of Supreme Court Justice William Brennan, Lewis' book focuses primarily on the 1964 case of New York Times vs. Sullivan. That case led the Supreme Court to recast the law of libel so as to afford far broader protections to the press.

Lewis traces how the matter arose when the police commissioner of Montgomery, Ala., L.B. Sullivan, sued the New York Times. He charged that a rather innocuous ad -- placed in the Times by supporters of Martin Luther King Jr. -- libeled him. Sullivan's lawsuit was clearly aimed at intimidating the national press, then beginning to descend on the South to cover the civil rights struggle. If the case had not been a civil rights matter but a more traditional libel case -- the printing of an inflammatory and damaging untruth -- the Supreme Court probably never would have agreed to hear the case.

Had that happened, the history of the '60s and '70s would have been far different. As Lewis illustrates, harsh libel laws don't only restrict potentially defamatory statements; they limit the publication of many true statements as well, since many news organizations can ill-afford the cost or stigma of defending even a frivolous lawsuit. Thus, the Supreme Court's new doctrine of libel law helped create an atmosphere in which the press felt freer to question government actions and policies. That led to the type of investigative reporting that helped expose what would happen in Vietnam, or in the Watergate scandal.

Lewis also discusses how these new libel standards may have led to a societal backlash against the press and, ironically, an outburst of libel suits in the last decade. While the standards discussed in the book have played a role in the rise of anti-press sentiment, there are other factors at work as well. As the press has grown more powerful, Americans have come to view reporters not as independent crusaders, but as just another professional elite. That development has inevitably made journalists part of the same malpractice litigation explosion that has affected doctors and lawyers.

What's more, the recent growth in libel litigation has reflected a larger societal culture of narcissism. Until recently, the American tradition of wide-open debate ensured skepticism about the power of words to damage reputations. But Americans now take damage to their reputations -- and their senses of "self" -- far more seriously than they did. In the age of the "Me Generation," libel actions have become the legal counterpart to consciousness raising, health clubs and even jogging.

Sullivan's lawsuit against King ended up having ramifications for all Americans. No one, it can safely be said, could have better related the story of how that came about than Tony Lewis.

D6

Steven Stark is a columnist for the Boston Globe.

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