When NYT v. Sullivan was in Jeopardy: New Article Reveals Burger Court’s Internal Assault on Landmark Case

Wednesday, April 3, 2013

In First Amendment law, the U.S. Supreme Court case, New York Times v. Sullivan (1964) is uniformly considered bedrock—the foundational First Amendment case of modern times.  What many do not know is how very close the Burger Court came to cracking the Sullivan bedrock principle of “uninhibited, robust, and wide-open” freedom of expression.

Enter Lee Levine (a seasoned First Amendment lawyer) and Stephen Wermiel (a seasoned commentator and co-author of the definitive biography of Justice William Brennan).   They have just published a remarkable First Amendment article.  The article is titled “The Landmark that Wasn’t: A First Amendment Play in Five Acts” and appears in the current issue of the Washington Law Review.  First Amendment scholar Robert M. O’Neil calls it “one of the most ambitious and accomplished case studies of constitutional litigation to be found anywhere.”

Until now, Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) was never much seen as a case of great importance to even the most ardent of First Amendment scholars and lawyers.  Little did we know.  By painstakingly detailing the Burger Court’s internal deliberations in Dun & Bradstreet, Levine and Wermiel attempt to change this view.  Drawing on heretofore unpublished internal memos and papers (from the chambers of Justice Brennan and others), Levine and Wermiel reveal in spades a previously off-the-records debate among the justices about the continued soundness of New York Times v. Sullivan.

Beyond this incredible revelation and the informative detail with which it is presented, the case study provides a rare glimpse of the inner workings of the Court and its clerks and how their work-product played into the constitutional scheme of things.  The Levine-Wermiel article relies on many unpublished internal Court documents, which are now nicely posted on the Washington Law Review’s website along with an interactive version of the article that directly links to these documents.

To make the conceptual pie even sweeter, three former Supreme Court clerks provide insightful commentary. The three commentators are:  Scott L. Nelson (Justice Byron White), Robert M. O’Neil (Justice William Brennan), and Paul M. Smith (Justice Lewis Powell).

As the fiftieth anniversary of New York Times v Sullivan approaches, Levine and Wermiel have provided a valuable account of how the case has remained a true landmark even when it was in jeopardy of being partially dismantled.

Ronald Collins is the Harold S. Shefelman Scholar at the University of Washington and a former fellow at the First Amendment Center.  One of his latest books is Nuanced Absolutism: Floyd Abrams and the First Amendment (2013).  His next book, with David Skover, is On Dissent: Its Meaning in America (Cambridge University Press, May 2013).

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