Pillar of Fire (34 page)

Before the assembled team of lawyers, Wachtel opened with a harsh appraisal of the day's performance by the eminent Herbert Wechsler, chief counsel for the
New York Times
. While it was true, he wryly conceded, that Wechsler once gave him his lowest grade in law school, Wachtel insisted that his former teacher made a timid presentation to the Justices. To insulate the
Times
from its controversial Negro co-appellants, Wechsler had pictured the contested advertising copy as a theoretical test of press freedom. Even there, said Wachtel, Wechsler had offered the Court several paths to overturn the verdict short of upholding an absolute First Amendment right to attack public officials—a “balancing test,” for instance, between the libel rights of public officials and the protection of vigorous political debate. Moreover, Wechsler argued that the retracting apology published in the
Times
, as demanded by the governor of Alabama, ought to protect the newspaper from the suit brought over the same material by Sullivan, a city commissioner in Montgomery. Wachtel thought these defensive arguments betrayed a lack of confidence.

William Rogers took issue with Wachtel, saying he had found Wechsler too bold for his taste, not too timid. Only Justices Hugo Black and William O. Douglas were likely to vote for a pure First Amendment reversal, said Rogers. The other seven Justices wanted to preserve at least some legal recourse for public figures who claimed to be libeled, and Rogers would have preferred Wechsler to aim his argument more at the middle ground where the deciding votes were likely to be, which was also where Rogers felt most comfortable. His comments prompted Martin Luther King to stand up. “I agree with you,” he told Rogers, interrupting the debate. “Just because I'm out there in public, I don't want people to say and print anything they want about me and be protected.” King's words startled several of the lawyers who assumed he would hold a doctrinaire position, and were slow to realize how much he identified with the targets of press vilification. Threats and slander being almost daily fare for him, King respected in principle the claims of his sworn enemies to fair legal redress. He could scarcely imagine a reversible world in which he and all his colleagues could secure through the courts gigantic punitive judgments against any segregationist who declared that civil rights threatened the American way of life.

Before the Justices that day, Wechsler had described the overall situation with a word rarely used in formal law: “fantastic.” Rulings up through the Alabama Supreme Court held that the truth of a public statement could be invalidated by the most trivial factual error, such as the misstatement in the
Times
ad about the number of times King had been arrested as of 1960. From there, under presumption of libel, Alabama law allowed juries first to recognize as victims parties never mentioned by name, such as Sullivan (a Montgomery police commissioner who claimed damage from the ad's generic complaints against segregation), and from there to award punitive civil damages as the jury saw fit—$500,000 to Sullivan, the largest judgment of its kind in Alabama history, a thousand times the statutory maximum for criminal libel.

Race was the driving explanation, but William Rogers was no more eager than Herbert Wechsler to ask the Supreme Court to find that Alabama judges and juries systematically subverted plain justice to segregation. The notion undermined the working presumption of the entire legal system. Thinking it wise to finesse the issue instead, Rogers advised King's lawyers that there were too many racial references in their petitions for the four ministers. This was a legal judgment, and he did not mention the converging political pressures on him as a prominent national Republican. A number of his friends in the Senate were annoyed with Rogers for taking part in a case that could embroil the national party on the losing side of sectional politics.

The lawyers concurred in Rogers's strategy for the following day. For all their complaints, they were happy to have their fortunes tied to the
New York Times
. Had Sullivan and the other Alabama plaintiffs chosen to sue the four Negro ministers alone, or together with a lesser newspaper, the clients might well be ruined already. What was burned into the clients themselves by life's lesson, Rogers and the other lawyers could appreciate by comparing the public indifference to partial enforcements of the
Sullivan
judgment thus far in Alabama—the seizure of Shuttlesworth's car, the confiscation for auction of family land in Abernathy's name—with coverage of the historic threat to the
Times
. Wechsler had minced no words with the Justices in calling the
Sullivan
judgment “a death penalty for any newspaper if multiplied,” and multiplication was running apace. Libel judgments seeking some $300 million in damages were pending in Southern courts, including four others from the ad at issue in
Sullivan
. With national crisis emanating from such huge institutional stakes, William Rogers settled on a plan to give the Court technical arguments for the four preachers and concede the defining ground of the case to the
Times
.

 

F
ROM THE LONG
strategy session at the Rogers law firm, King returned on the night of January 6 to the Willard Hotel, near the White House, where with small drills, wires, and the cooperation of hotel management, FBI “sound men” had installed microphone bugs in his room. Monitoring technicians in the suite next door fed the reception into a large tape recorder, which so far had picked up four reels of informal conversation between two women. With King's return, the bugs recorded the shedding of Supreme Court decorum into a party with clinking glasses. In the midst of an eventual eleven reels and fourteen hours of party babble, with jokes about scared Negro preachers and stiff white bosses, arrived sounds of courtship and sex with distinctive verbal accompaniment. At its height, Bureau technicians heard King's distinctive voice ring out above others with pulsating abandon, saying “I'm fucking for God!” and “I'm not a Negro tonight!” Soon after the cries subsided, a businesslike attendant was heard rapping at the doorway, saying it was time to go.
*

By morning, word of this first top secret microphone surveillance sent a jolt of triumph through commanding echelons at FBI headquarters. After the first of many agents and officials verified King's voice, the Intelligence Division prepared a “highlights” tape and an eight-page written synopsis for Director Hoover, who exclaimed, “This will destroy the burr-head!” Although his dreaded files had accumulated a fair number of couplings in Washington hotel rooms, nearly all represented scandalous frailty that was familiar and controlling, almost reassuring, to the spymaster. Here, beyond the bare evidence of extramarital sex, what fixated the FBI Director was a separate culture of exuberant, profane, theatrical release, whose sounds battered his microphones. “King is a ‘tom cat' with obsessive, degenerate sexual urges,” Hoover scribbled on a memo. Detailed instructions went down overnight to the wiretap hub in Atlanta (“It is believed that the submissions from your office should be on a daily or near daily basis…”). The next day, January 8, Assistant Director Sullivan recorded fresh resolve “to take [King] off his pedestal and to reduce him completely in influence,” while a team of his intelligence specialists worked to approach the Internal Revenue Service on a hunch that “recent income tax returns of King might well reveal information which could assist the Bureau in its efforts to discredit King or neutralize his effectiveness.”

 

F
OR
K
ING
, January 7 brought the renewed calm of the Supreme Court chamber, where William Rogers stressed to the Justices that the four Negro appellants were mere bystanders, their names having been added without their knowledge or approval to the list of supporters published in the offending ad, and that only a hangman's court could condemn them as libelous authors on such evidence. “If this judgment is permitted to stand,” said Rogers, “it will be a mild forerunner of what will follow.” After his co-counsel Samuel Pierce argued for reversal on the ground that an all-white jury and strictly segregated courtrooms had denied the four ministers a fair trial, friends of the appeal gathered for a large farewell luncheon at the Washington Hotel. King thanked the lawyers and supporting organizations for nearly four years' work since the Eisenhower administration and the early sit-ins, when the movement had been an obscure speck to Washington. Back then, King told Rogers, he never dreamed that Ike's attorney general would be defending them before the Supreme Court.

The
Sullivan
case itself disappeared behind the closed doors of the Court, where over the next nine weeks the nine Justices would bargain over an extraordinary nine drafts of landmark law. Justice William Brennan carried the burden of crafting a decision that would favor the
Times
and the Negro appellants—thereby stopping the blatant use of state libel laws to defend segregation—yet do so without exacerbating sectional tensions. Elaborating on a suggestion from Herbert Wechsler's oral argument, Brennan essentially transposed
Sullivan
two centuries backward to the dawn of the American republic, when the Federalist Congress had enacted the Sedition Law of 1798 to punish political opponents as criminals. “Although the Sedition Law was never tested in this Court,” wrote Justice Brennan, “the attack upon its validity has carried the day in the court of history.” The dramatic analogy served the double purpose of stepping into a buffered past, free of overt racial consideration, while addressing a fundamental American conflict at parallel depths of democratic theory. Brennan quoted Jefferson's stated reasons for pardoning all convictions under the Sedition Act: “I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”

Through Brennan's negotiated language, the Supreme Court unanimously subjected state libel laws to constitutional scrutiny for the first time, holding that First Amendment protection of political debate imposed a new, higher standard of proof in libel actions brought by public figures. Beyond falsity and defamation, henceforth plaintiffs must also prove that an alleged attack was delivered with “‘actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The decision overturned the Alabama judgments, and barred similar ones, because even Commissioner Sullivan never alleged that the four unwitting civil rights leaders or the advertising employees of the
Times
had concocted malicious falsehoods themselves. This practical result was all but lost among broader implications of the “actual malice” test, which opened a new field of constitutional law with sweeping effects for every news organization, officeholder, and public figure in the country. By casting the decision as unfinished business from the Jeffersonian era, Justice Brennan raised attention permanently above its origins in concerted racial repression. “The case of the individual petitioners requires little discussion,” he wrote for the Court, and the
Abernathy et al
. portion of
Sullivan
disappeared beneath the legacy of the
Times
.
*
In later years, wondering what could have prompted the Montgomery police commissioner to sue over the innocuous
Times
advertisement, Brennan's biographer could only speculate that Sullivan “was apparently a man of some thin skin.”

 

W
HILE THE
J
USTICES
labored to submerge racial passions in constitutional law, FBI executives debated whether to offer a summary of the sensational Willard Hotel recordings to the Attorney General. If they did, warned Assistant Director Sullivan, the impulsive Robert Kennedy might well “reprimand” Martin Luther King for illicit behavior, which could shock King into reform or greater discretion. Either way, Sullivan wrote Hoover, King's reaction likely would deprive the Bureau of opportunities to develop “any more such information by the means employed.” The prospect of fruitless bugs was enough to make up Hoover's mind. “No,” he wrote Sullivan. “A copy need
not
be given A.G.” Hoover had been ignoring the Attorney General since November 22 anyway, and he used the Willard coup instead to restore his accustomed direct line to the White House. On January 14, the day before King's thirty-fifth birthday, Hoover arranged a private peek at the Willard transcripts for President Johnson and his chief of staff, Walter Jenkins. Deke DeLoach, the Director's carefully chosen emissary, had known both men since his service as FBI liaison with Congress, and he returned to headquarters satisfied that Johnson and Jenkins were duly impressed.

DeLoach had scarcely delivered his report when President Johnson—rudely and mysteriously, from the FBI point of view—confounded hopes that he would recoil from political association with King. To the contrary, White House aides informed reporters that Johnson personally had requested that King, Wilkins, Farmer, and Whitney Young visit him on Saturday, January 18. The invitation itself turned out to be the first in a string of positive surprises for King and the other leaders. Instead of pressuring them to accept weakening amendments to the pending civil rights bill, Johnson assured them of his determination to secure passage “without a word or a comma changed.” Far from accepting their gloomy vote counts or fears of further delay, he predicted that the bill would be out of the Rules Committee and through the entire House before the Lincoln's Birthday recess. Incredibly, Johnson was ahead of the civil rights leaders on their own legislation, and most unexpectedly of all, he looked past it to the “war against poverty” announced in his January 8 State of the Union message. Johnson sought their cooperation as full citizens rather than specialists confined to race. When he authorized them to say that publicly, they assumed the grandly vague language of fellow statesmen, telling reporters outside the White House of their “lengthy and fruitful discussion with the President on vital issues concerning our nation.”