Actual Malice Given Constitutional Significance After Sullivan Ruling

The Supreme Court voted 9-0 against the Alabama court’s decision that found the law applied was found constitutionally deficient for failure to provide safeguards for freedom of speech and of the press, as required by the First and Fourteenth Amendment. This decision provided states that even with the proper safeguards, the evidence presented in this case was insufficient to support a judgement for Sullivan. This case has gone to show that the law should, and will protect the media from criminal libel and malice if the situation is deemed correct.

On March 29, 1960, the New York Times printed a full-page advertisement titled “Heed Their Rising Voices”, paid for by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South”. This advertisement re-created actions that were happening towards civil rights protesters, some of them inaccurately, including the police force in the city of Montgomery, Alabama. One of the fallacies that was listed in the advertisement referred to the local police and how, “They have arrested (King) seven times” when in fact he had been arrested four times.

L.B. Sullivan, the Montgomery Public Safety commissioner was not named in the advertisement specifically. He was subject to inaccurate criticism of actions by the police and considered this to be defamation by the New York Times as well. This was his highly considered true because of his duty to supervise the police department. After being denied recovery of punitive damages by Alabama law in a libel action, Sullivan sent a request for a written demand for a public retraction and if the Times did not retract their statements. They did not retract statements about Sullivan, rather they sent out an advertisement upon the demand Governor John Patterson of Alabama, who also alleged him with “grave misconduct and improper actions and omissions as Governor of Alabama and ex efficio chairman of the State Board of Education of Alabama.”

In a statement, why the Times did not retract their advertisement against Sullivan, rather went after the Governor of the state, their secretary said this:

“We did that because we didn’t want anything that was published by the Times to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the state and, furthermore, we had by that time learned more of the actual facts which the ad purported to recite and, finally, the ad did refer to the action of the state authorities and the Board of Education and presumably of which the Governor is the ex officio chairman….”

Because all justices of the Supreme Court voted in favor of the New York Times, there was not a publicized dissent, rather a few concurring statements and the overall opinion of the court. Actual Malice was taken into legal context and was the focus of this case. This phrase refers to knowledge or reckless lack of investigation, rather than its ordinary meaning of malicious intent.

Justice Brennan delivered the opinion of the court and said, “Although neither of these statements mentions respondent by name, he contended that the word “police” in the third paragraph referred to him as the Montgomery Commissioner who supervised the police department, so that he was being accused of “ringing” the campus with police”.

Justice Brennan continued to state that, “We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and other, are under the control and direction of the city governing body, and, more particularly, under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body.”

He added, “Because of the importance of the constitutional issues involved, we granted the separate petitions for certiorari of the individual petitioners and of the Times. We revers the judgement. We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct. We further hold that, under the proper safeguards, the evidence presented in this case in constitutionally insufficient to support the judgement for respondent. “

In concurrence of the opinion, both Justice Black and Justice Goldberg delivered their own concurrence statements. Justice Black started off by saying, “I base my vote to reverse on the belief that the First and Fourteenth Amendments not merely “delimit” a State’s power to award damages to “public officials against critics of their official conduct,” but completely prohibit a State from exercising such a power. The Court goes on to hold that a State can subject such critics to damages if “actual malice” can be proved against them. “Malice,” even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides, at best, an evanescent protection for the right critically to discuss public affairs, and certainly does not measure up to the sturdy safeguard embodied in the First Amendment. Unlike the Court, therefore, I vote to reverse exclusively on the ground that the Times and the individual defendants had an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials.”

Continuing with his concurrence, Justice Black said, “The half-million-dollar verdict does give dramatic proof, however, that state libel laws 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. The factual background of this case emphasizes the imminence and enormity of that threat. One of the acute and highly emotional issues in this country arises out of efforts of many people, even including some public officials, to continue state-commanded segregation of races in the public schools and other public places despite our several holdings that such a state practice is forbidden by the Fourteenth Amendment. Montgomery is one of the localities in which widespread hostility to desegregation has been manifested. This hostility has sometimes extended itself to persons who favor desegregation, particularly to so-called “outside agitators,” a term which can be made to fit papers like the Times, which is published in New York. The scarcity of testimony to show that Commissioner Sullivan suffered any actual damages at all suggests that these feelings of hostility had at least as much to do with rendition of this half-million-dollar verdict as did an appraisal of damages.

Sharing his concurrence with the court’s decision, Justice Goldberg said, “It has been recognized that “prosecutions for libel on government have [no] place in the American system of jurisprudence.” City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. 86, 88. I fully agree. Government, however, is not an abstraction; it is made up of individuals — of governors responsible to the governed. In a democratic society, where men are free by ballots to remove those in power, any statement critical of governmental action is necessarily “of and concerning” the governors, and any statement critical of the governors’ official conduct is necessarily “of and concerning” the government. If the rule that libel on government has no place in our Constitution is to have real meaning, then libel on the official conduct of the governors likewise can have no place in our Constitution.”

In addition to his statement, Justice Goldberg also shared that, “This is not to say that the Constitution protects defamatory statements directed against the private conduct of a public official or private citizen. Freedom of press and of speech insures that government will respond to the will of the people, and that changes may be obtained by peaceful means. Purely private defamation has little to do with the political ends of a self-governing society. The imposition of liability for private defamation does not abridge the freedom of public speech or any other freedom protected by the First Amendment. This, of course, cannot be said where public officials are concerned, or where public matters are involved.”

Because of this case, the Supreme Court has officially adopted the term “actual malice” giving it constitutional significance. This case will go down in history as a time when the constitution was challenged and our appointed officials took the time to study further and share the true meaning behind the First and Fourteenth Amendment we all as Americans have.

Police Chief Michael Tupper

When you think of a police officer, many things can come to mind. That’s exactly what happened when I decided to interview an old family friend. Police Chief Michael Tupper is the Police Chief for Marshalltown, IA and has been since 2011. I was fortunate enough to get a hold of him and ask him a few questions about his career, personal life, and anything else that come up in the conversation!

We started off the interview by talking about how Michael got his start with the police force and how he has moved throughout the state as his profession has allowed him to do so.

Q: How did you get your start with the police force and what has been the journey that got you to the Marshalltown Police Chief position?

“I have worked in law enforcement for nearly 25 years. The last 13 years have been as a chief of police. I grew up in Dubuque and moved to Ottumwa out of college to go to work for the Ottumwa Police Department. I was in Ottumwa for 11.5 years. I worked my way up the ranks there from patrol officer to detective and ultimately sergeant. The last 3.5 years I worked in Ottumwa I was in command of the Investigation Unit. In 2004, I accepted the job as chief of Police in Nevada, Iowa.

I worked in Nevada until October of 2011 when I took the job as chief of police in Marshalltown. In 2011, my wife, Sarah, and I were looking for new professional challenges and wanted to live in a diverse community. We also wanted to remain in Central Iowa because it keeps us close to family. My early career in Ottumwa provided me with an opportunity to work in a very diverse community. I missed that. The opportunity to work in Marshalltown was a great fit for me professionally because it allowed me to grow as a professional and learn. Marshalltown was also a great fit for my family and we are very proud to call Marshalltown home.”

Nevada is where  I am originally from and actually graduated with one of his daughters. She also attends UNI and has been just as much part of his journey as he has. Because of these changes in his personal and professional life, I wanted to know more about how the police force has changed specifically to meet with demands of either crime or just community involvement.

“The biggest change is technology. When I walked in the door with the Ottumwa Police Department, there were three computers in the entire building. The detective commander, chief of police and the chief’s assistant had computers. That was it. Now we have computers in cars, cameras are everywhere and technology significant part of the law enforcement profession. Technology has allowed law enforcement to work smarter and be more efficient. Technology has also increased the costs of providing police services and it is very difficult to keep up with. Staying current and make good use of available technology is critical for law enforcement because the criminals are also using technology to their advantage.

The second thing that has changed significantly is the number of people who want to work in law enforcement. It has become very difficult to recruit and retain good employees. People just do not want this job anymore and the decline in both quantity and quality of candidates has been increasing steadily for 20 years. It used to be a community like Marshalltown might attract 100 applicants for one job. Now we are fortunate if we have 25-30. The small applicant pool means that police agencies all over Iowa are competing for the same applicants in many cases. The hiring process has become a competitive and difficult endeavor.

The third thing that has changed is the professionalism and skill level of law enforcement officers. Despite the limited number of applicants, the ones that do ultimately earn the job are highly skilled and educated professionals. The education level and overall professionalism of law enforcement in Iowa has never been better.”

That professionalism and skill level he is talking about is taken very seriously with Michael. Because of that, a code of ethics must be taken into account for each officer. There has been a lot of negative stories about officers in the news lately and that is what prompted this next question.

Q: There are a lot of negative stories in the news about law enforcement’s relationship with the citizens of each community and you as police chief seem to have a positive relationship with the people of the Marshalltown community… How did this come about?

“I am blessed to work with, around and for great people. I am also blessed to work in a great community. A community which supports public safety. This is rural Iowa. The heartland. We are down to earth and we support men and women in uniform and the people who serve in our communities. We work very hard at the Marshalltown Police Department to build and maintain the public trust. I deserve no credit for any of this. It is the men and women in the field, the rock stars working in the E911 center and all of our support staff who deserve all of the credit. Inside the walls of the PD, we talk about serving with passion and compassion. We have a golden rule of policing which asks our employees to serve unto others, as they would want a loved one served in a like position. We also ask our team members to lead each day with a sense of urgency. Our staff has bought into these concepts and they work tirelessly each day to serve and protect. I could not be more proud of their work.

We have also asked the community to be our partners. As community members, we all have a responsibility for policing our community and for keeping our neighborhoods safe. We have a community that is buying into this and is supportive. Sir Robert Peel is credited with founding modern policing. He established the Metropolitan police force in 1829 and once said, “The police are the public and the public are the police.” I believe this concept and we try to live this concept daily. Marshalltown is like no other community in Iowa. When there is a problem, we come together and solve the problem. Working as a community, we have been able to maintain positive police-community relationships despite the negative narrative we see on the national level.”

To me, I felt the same way when he was the Police Chief in Nevada, and I know that the community of Marshalltown are in good hands. In closing, Police Chief Tupper wanted to say this to all members of their community:

“We have a safe community here. Our schools are safe. The men and women of the Marshalltown Police Department work for you and want to be your partners. Working together, there is no problem we cannot solve.”


Texas v. Johnson

Tuesday, March 21st 1989, with a 5-4 vote, the United States Supreme Court has ruled in favor of Gregory Lee Johnson’s civil liberties and said that his constitutional liberties were indeed violated as a result of his arrest and fine. The United States Supreme Court claimed that the Johnson’s expression of burning the flag is protected and legal according to the United States Constitution. This now pushes future rulings in that now burning an American flag is a kind of symbolic or political speech and is protected from criminal prosecution by the First Amendment.

This appeal, brought by Johnson, was brought about when he stated that the arrest sparked by flag burning activities by stating that the Dallas police department had violated his 1st Amendment rights. Being an American means that your 1st Amendment right preserves and protects the right of speech and expression. Another aspect that was included in this appeal, is that Johnson believed that the state law was not appropriate because the government cannot define what a “respected” object is.

The actual flag burning occurred at the Republican National Convention to protest the policies of President Ronald Reagan and some Dallas based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured, although several people were very offended by the flag burning.

The court concluded that the State could not criminally sanction flag burning in order to preserve the flag as a symbol of national unity. It also said that the statute did not meet the State’s goal of preventing breaches of the peace. The court also said that if this action would have worked as a such a serious disturbance than the 1st Amendment would not protect Johnson or anyone else who would follow these actions.

The majority of the Court, according to Justice William Brennan, agreed with Johnson and held that flag burning constitutes a form of “symbolic speech” that is protected by the First Amendment. The majority (5-4), noted that freedom of speech protects actions that society may find very offensive, but society’s outrage alone is not justification for the suppression of free speech. If these actions prevented society from having their opinions be heard or taken in the same light, the law would preside on the other side of the argument.

In particular, the majority (5-4) noted that the Texas law discriminated upon viewpoint, even though the law punished actions, such as flag burning, that might arouse anger in others. The law specifically exempted 1st Amendment users from prosecution actions that were respectful of venerated objects, for example: burning and burying a worn-out flag. The majority said that the government could not discriminate in this manner based upon viewpoint.

Justice Brennan delivered the opinion of the court where he dove deeper into the background of the situation and the final opinion.

“The demonstrators marched through the Dallas streets, chanting political slogans and stopping at several corporate locations to stage “die-ins” intended to dramatize the consequences of nuclear war. On several occasions they spray-painted the walls of buildings and overturned potted plants, but Johnson himself took no part in such activities. He did, however, accept an American flag handed to him by a fellow protester who had taken it from a flagpole outside one of the targeted buildings.” Justice Brennan

He then continued on to say –

“The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the protesters chanted, “America, the red, white, and blue, we spit on you.” After the demonstrators dispersed, a witness to the flag burning collected the flag’s remains and buried them in his backyard. No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning.”

To conclude the courts opinion, Justice Brennan then stated –

“Johnson was convicted for engaging in expressive conduct. The State’s interest in preventing breaches of the peace does not support his conviction, because Johnson’s conduct did not threaten to disturb the peace. Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression. The judgment of the Texas Court of Criminal Appeals is therefore Affirmed.”

In Concurrence with Justice Brennan’s stated opinion, Justice Kennedy wrote that he was not writing to “qualify” Justice Brennan’s quote, rather –

“I join his opinion without reservation, but with a keen sense that this case, like others before us from time to time, exacts its personal toll. This prompts me to add to our pages these few remarks. The case before us illustrates better than most that the judicial power is often difficult in its exercise. We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours”

What we as Americans must keep in mind is that that both Justice Brennan and Justice Kennedy belong to two separate political parties. A common argument to the way justices place their opinion may lie in their past experiences, but should not and cannot lie with their political agenda in mind. This case, for instance, is one that had both sides of the political spectrum working together to interpret the law and then make a decision based off of facts of the case – nothing else.

But where there is concurrence, there must be dissent. Both Justice Rehnquist and Justice Stevens fell under this category. Justice Rehnquist went deeper into various places in time where the United States flag was used as a symbol of national pride and deeper symbolic’s. Because of this, he said –

“With the exception of Alaska and Wyoming, all of the States now have statutes prohibiting the burning of the. Most of the state statutes are patterned after the Uniform Flag Act of 1917, which in provides:

No person shall publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon any such flag, standard, color, ensign or shield”.

Justice Stevens then said, “A country’s flag is a symbol of more than “nationhood and national unity”. It also signifies the ideas that characterize the society that has chosen that emblem as well as the special history that has animated the growth and power of those ideas. The fleurs-de-lis and the tricolor both symbolized “nationhood and national unity,” but they had vastly different meanings. The message conveyed by some flags — the swastika, for example — may survive long after it has outlived its usefulness as a symbol of regimented unity in a particular nation.

So it is with the American flag. It is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations. The symbol carries its message to dissidents both at home and abroad who may have no interest at all in our national unity or survival.”

This case may very well bring a much larger conversation here in the United States, and each and every American will have to make a decision. Whatever their choice is on this matter, the fact that the Supreme Court has given their opinion is something to be highly considered. More information in regards to this ruling to follow.