Tuesday, August 5, 2008

A political ad that changed history


Yesterday, one of my aunts asked me why I have been working hard on political advertising. I explained that I believe the Democratic Party must demonstrate its commitment to democratic procedures if there is any hope of the eventual Democratic nominee winning in November. I explained the focus of the ads which urge the DNC and all Democratic Party leaders to hold a convention with procedures and a climate that permit the superdelegates to perform their function and actively decide which of the two candidates available to run should be made the the official Democratic nominee. As a certified member of my family, my aunt kept cutting in (join my family and interrupting others and speaking and listening simultaneously follow as night does day). She voiced her opinion that no matter what the DNC would never permit anything other than a foregone result, and that would be the nomination of Senator Obama.

As a certified member of my family, I stuck to my guns and continued to explain why I believed The Denver Group's political ads could actually contribute to a decision by all the players involved to let democracy unfold at the Democratic Party Convention at the end of this month. My aunt did have the last word. She told me she was glad somebody was trying to do something about the situation and asked me to keep her apprised.

This genuinely fun conversation with my aunt inspired the post you are are reading.

The ad that changed history

In 1960, the New York Times ran a fundraising advertisement, headlined "Heed Their Rising Voices" and signed by civil-rights leaders that criticized, among other things, certain actions of the Montgomery, Alabama police department. Learn more about the background of the ad here. This political advertisement had consequences far beyond those intended by its sponsors, because Alabama officials decided to sue the New York Times and some of the signatories to the ad for defamation.

Prior to 1964, it was widely assumed that state tort law was completely outside of First Amendment protection. With respect to defamation law in particular, the old rule appeared to be that the Constitution extends no protection to false statements.

All this changed with the landmark case of New York Times v Sullivan, a case whose importance it would be hard to overestimate. Had the case been decided against the Times, it almost certainly would have produced a more timid press and led to decisions to restrict the circulation of previously national magazines and newspapers to states unlikely to spawn financially-threatening defamation suits."" New York Times v Sullivan a unanimous Supreme Court overturns an Alabama jury award of $500,000 entered against the Times for publication of a political advertisement that allegedly defamed Montgomery County Commissioner L. B. Sullivan. At least with respect to criticism of the official conduct of public officials it is necessary, the Court said, for a defamation plaintiff to establish that a false statement has been published with either knowledge of its falsity, or with reckless disregard as to its truth or falsity. This is the so-called "actual malice" standard. (emphasis mine) (source)

In sum, "Heed Their Rising Voices", a paid political ad, ultimately transformed defamation law in this country. The long term effects of this change in the law have been various, some better than others, but at the time the new standard prompted the national press not just to run paid ads but to cover the civil rights movement in the South without fear. That coverage brought the events and the issues to nationwide attention and played a role in building a nationwide consensus that various laws and customs, particularly those from the Jim Crow era, were not only legally unacceptable, but socially and politically repugnant. For more information about New York Times v. Sullivan and the events surrounding it, you can go here. Here you can listen to the oral arguments and read a good summary of the case.


Political advertising can play a pivotal role in social change, especially with regard making a democracy more democratic. It has in the the past and may do so again.


Anonymous mm said...

The work that The Denver Group is doing is noble. As Heidi points out political ads that are run in the spirit of upholding the highest democratic principles, can and do work. In this instance, The Denver Group's ads are attempting to influence the superdelegates to exercise their best judgment in selecting a candidate that can not only win in November but become a president of which we can be proud. If HRC's name is placed in nomination, that's great. If it isn't, then The Denver Group's ads have still been worthwhile. We will have changed something, their action will have shifted the consciousness of those it touches and the difference it will have made will be felt in yet unknowable ways.

August 5, 2008 at 8:31 AM  
Blogger jbjd said...

I heard you discussing the Sullivan Case on the radio the other night.

Years ago, even before I went to law school, I bought the book, Make No Law, by Anthony Lewis, which chronicles the history of the First Amendment and the Sullivan Case. It was fabulous. I wish every citizen concerned with free speech would read this. I loaned it to my constitutional law professor; he never gave it back. (I was sharing this anecdote with my 15-year-old son while we waded through overstuffed shelves of used books at a shop in Boston when I spied the volume. I grabbed it up immediately; hopefully, at some point, he will read it, too.)

August 5, 2008 at 2:12 PM  

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