On Make No Law

Anthony Lewis returned to the Supreme Court in Make No Law, published in 1991, to tell the story of the case that, more than any other, made the modern freedom of the press. The case was New York Times v. Sullivan, decided in 1964, and its subject was libel, the law that lets people sue for false and damaging statements about them. Lewis shows how a libel suit arising out of the civil-rights struggle became the occasion for the Court to transform the First Amendment and to define, for the first time, how much breathing room a free press needs.

The facts mattered. Southern officials had begun using libel suits as a weapon against the Northern press that was covering the civil-rights movement, suing newspapers for minor factual errors in order to intimidate them and bleed them financially into silence. A single advertisement in the New York Times, soliciting support for the movement and containing a few small inaccuracies, drew a massive libel judgment from an Alabama jury. If such judgments stood, the press could be punished into caution, unwilling to cover controversial matters for fear that any small error would bring a ruinous suit. The freedom to report on the great public questions of the day was at stake.

The Court's response was to constitutionalize the law of libel where public officials and public matters were concerned. It held that to win a libel suit, a public official must prove not merely that a statement was false but that it was made with what the Court called actual malice, knowing it was false or with reckless disregard for whether it was true. This high bar gave the press the room to make honest mistakes in the course of vigorous reporting on public affairs, on the theory, central to the decision, that debate on public issues should be uninhibited, robust, and wide open, and that some falsehood is the inevitable price of the free and full discussion a democracy requires.

Lewis traces the case from the streets of Alabama to the Supreme Court, explaining the legal stakes and the human story with the same clarity he brought to Gideon's Trumpet, also on these shelves. The book belongs in a library of the republic because the principle it explains is foundational to self-government: that a free people cannot govern themselves if their press is too frightened of liability to report on those in power, and that the First Amendment therefore protects even some falsehood in order to protect the robust public debate without which democracy cannot function.

It sits with the other press and First Amendment works in this collection, from Milton's Areopagitica through the Pentagon Papers case, as part of the long story of how the freedom to publish has been won and defined. Make No Law is in copyright and widely available in print and digital editions. Read it to understand the decision that gave the modern American press its freedom, and the reasoning that justified protecting even error in the service of open debate.