Edmondson podcast: Intimidation Through Libel Law

podcastlogoFor the 56th episode of the Journalism History podcast, host Nick Hirshon spoke to Aimee Edmondson about how opponents of the Civil Rights movement weaponized libel law for decades to squelch free speech and silence African American dissent.

Aimee Edmondson is a professor and director of graduate studies in the E.W. Scripps School of Journalism at Ohio University. Her book In Sullivan’s Shadow, The Use and Abuse of Libel Law During the Long Civil Rights Struggle was selected as runner-up for the 2020 AEJMC History Division Book Award.

This episode is sponsored by Taylor & Francis, publisher of Journalism History.

Transcript

Aimee Edmondson: It’s so interesting to think about our long history and the complicity of the courts in keeping our racial status quo of the time for the most part. Not all, but most of the cases prior to Sullivan in 1964 are in the South, and most of – of them are going to side, you know, against the media company, against the speaker.

Nick Hirshon: Welcome to Journalism History, a podcast that rips out the pages of your history books to reexamine the stories you thought you knew and the ones you were never told.

Teri Finneman: I’m Teri Finneman, and I research media coverage of women in politics.

Nick Hirshon: And I’m Nick Hirshon, and I research the history of New York sports.

Ken Ward: And I’m Ken Ward, and I research the journalism history of the Great Plains and Rocky Mountains.

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Nick Hirshon: And together, we are professional media historians guiding you through our own drafts of history. This episode is sponsored by Taylor and Francis, the publisher of our academic journal, Journalism History. Transcripts of the show are available online at journalism-history.org/podcast.

For journalists, few Supreme Court decisions have been as consequential as New York Times v. Sullivan. The 1964 ruling was a victory for the press. The court declared that any public figure suing for defamation or libel must show that the defendant knew the statement was false or was reckless in deciding to publish without investigating its accuracy. For decades before Sullivan, the far right had weaponized libel law to squelch free speech and silence African-American dissent, particularly in the South during the Civil Rights Movement. Even after Sullivan, officials continued to try to use libel law to shut down criticism –

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of their actions, a tactic that continued into the late 1980s, when the movie Mississippi Burning portrayed the FBI investigating a sheriff who was based on a notorious real-life law man. On this episode of the Journalism History podcast, we examine the intersection of race, libel, and the news media with Aimee Edmondson, a journalism professor at the E.W. Scripps School of Journalism at Ohio University, and the author of the book In Sullivan’s Shadow: The Use and Abuse of Libel Law During the Long Civil Rights Struggle. Welcome, Aimee, to the Journalism History podcast.

Aimee Edmondson: Thank you, Nick. I’m so honored to be here.

Nick Hirshon: Well, we’re honored to have you here to talk about your book, your award-winning book, I should say, In Sullivan’s Shadow: The Use and Abuse of Libel Law During the Long Civil Rights Struggle, published by the University of Massachusetts Press, and it has been named the runner-up for the AEJMC History Division’s Book Award, so congratulations –

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on that. Uh, and as we get going here, before we even get into the topic of your book specifically, you talk in the preface about how your own upbringing in Louisiana inspired your book, so I’m wondering if you could give us a little bit of your personal background and how that interacted with the subject.

Aimee Edmondson: Oh, sure. Glad to. Yes, I grew up on a cotton farm in the Mississippi Delta and attended a private school, one of these all-white academies that sprouts up in the late 1960s as a result of Brown v. Board of Education. So I went K through 12 in a school that was intentionally segregated, and I didn’t really know, I wasn’t politically aware, I wasn’t socially and culturally aware as a youngster until I got down to Baton Rouge and LSU where I attended class, of course with black students from all over –

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and became much more aware of where I was from.

Nick Hirshon: Well, we’re glad that you got onto that subject, and a really fascinating aspect of media law that I bet a lot of journalism students hear about but they don’t know quite as much as you’ve been able to give us here. So In Sullivan’s Shadow, obviously the title of your book comes from the 1964 Supreme Court decision in New York Times v. Sullivan. Uh, but before we get to that landmark case, your book describes how libel, race, and journalism intersected as far back as 1829. That’s when a slave trader sued the abolitionist and the newspaper editor William Lloyd Garrison for his criticism of slavery. And the first chapter of the book covers eight key court battles between 1925 and 1956 that pitted black journalists and activists against public officials in Kentucky, South Carolina, and Florida. You begin the chapter by describing how the Ku Klux Klan tried to silence one of the leading black voices in LA –

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by suing her for libel in 1925. So what does your book tell us about these libel cases before Sullivan?

Aimee Edmondson: Right. Well, it’s so interesting to think about our long history and the complicity of the courts in keeping our racial status quo of the time for the most part. Not all, but most of the cases prior to Sullivan in 1964 are in the South, and most of – of them are going to you know, side with against the media company, against the speaker, because, of course, we don’t yet have the Supreme Court decision and the actual malice standard. And so I think a lot of our tendencies as historians is to think about, you know great men and great moments, and – and I say here great court cases. Um, but I think it’s – it’s important to note that Sullivan –

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was just one of many, many cases where there were indeed these attempts to silence the media civil rights leaders and activists and – and keep this kind of discourse out of the newspapers and, you know, out of the public eye and bogged down in the court system.

Nick Hirshon: I think that’s one of the fascinating parts about your book that I didn’t really think too much about. Like you say, we learn about particular cases and moments in history, people, but we don’t think about the kind of themes that happened you know, and how this was used as a cudgel against African Americans for so long in the South and elsewhere. But as we then move on to Times v. Sullivan, $500,000 libel suit against the New York Times in a case that was filed by the police commissioner in Montgomery, Alabama, and it was the largest penalty ever requested by a plaintiff in the state’s history. So can you just give us a primer on what happened in the Sullivan case?

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Aimee Edmondson: Um, sure. This was an ad that ran full page in the New York Times entitled “Heed their Rising Voices,” and it was an appeal from a civil rights group in New York asking for money and support in part to defend Martin Luther King, Jr., who had become the subject of quite a bit of abuse from the legal system in terms of arrests for loitering when he’s leading marches. He had a felony tax evasion case in Alabama, the first of its kind. And so people could clip out this little coupon and send money to the civil rights organization. And so there were only a few copies in Montgomery, Alabama, but they were brought to the attention of the – the head of police, Sullivan is the police commissioner. And so even though he was not named in the ad, he was the subject of police –

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brutality against protestors in Montgomery, several instances. And there were some factual errors in the ad, small, minor errors, but the gist was correct.

Um, so Sullivan sues, and of course, as you said, is successful at the Alabama Supreme Court. They give him everything he asked for, record libel judgment at half a million dollars. The New York Times was – it threatened its very existence. Um, Turner Catledge was quite afraid of what this case was going to do for media and how it was no longer going to be able to cover civil rights issues or even any controversial issues for fear of being sued for libel. And of course, the Supreme Court overturns this case and see this as, you know, a race case as much as, you know, civil rights case, as much as a libel case.

Nick Hirshon: And what we kind of view that case as today, setting the actual malice –

standard in journalism so that if a plaintiff is going to be suing for libel, they have to prove that the journalist had actual malice or disregard for the truth in this case they really intend to harm, so that’s supposed to be a way of protecting journalists against frivolous suits. Uh, your book describes how Sullivan was just one example of the use and abuse of libel law during this movement, and you describe other lawsuits that were lesser known, many of them that stemmed from cases of police brutality. Some of those libel cases were filed while Sullivan was still working its way through the appeals process, in places like Louisiana and Mississippi. So what’s your takeaway from some of these other cases that are happening simultaneously to Sullivan?

Aimee Edmondson: Right, and there – there’s so many interesting documents that I came across where you can literally hear on the record lawyers and judges talking to each other about what the –

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actual malice standard might mean as we lead into Sullivan. Bull Connor, the notorious law man from Birmingham, Alabama, also sued for libel quite a few plaintiffs including the New York Times. And they – they’re scratchin’ their heads going, okay, what is this gonna mean? Um, and you see in the papers of the NAACP discussions between the lawyers for the NAACP going, okay, what does this entail, this new actual malice standard where the plaintiff must prove that the speaker, you know, acted with – you know, printed something either knowing it was false or they should have known it was false, reckless disregard for the truth.

And what we learn in the cases surrounding that time and afterward is that it is indeed quite –

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possible to sue and win, even if you’re a public official. Because you’ll remember that this only applied to public official plaintiffs who thrust themselves into the limelight. And so in 1964 – so the same year that Sullivan was decided by the U.S. Supreme Court, the Republican candidate for president, Barry Goldwater, won a libel suit against Fact magazine. Um, he was able to prove actual malice. Um, so – so we know that it’s still possible for – for this to happen, and that has been a – a pretty serious criticism, especially these days with President Trump discussing the possibility of “opening up” libel laws to make it easier for people to sue the press and win. So lots of modern-day applications here.

Nick Hirshon: And maybe a misnomer that sometimes, at least when I’m teaching New York Times v. Sullivan, and as a former reporter just like you are –

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you know, sometimes you have a bravado about, well, they could sue us for libel. “Go ahead, try your worst, it protects us.” But you’re saying that sometimes there are cases where, no, they can be successful in the United States.

Uh, so you go on to detail some suits that involve police brutality charges in South Carolina, Alabama, but one that really stood out to me that I’d like you to just focus on, draw out a little bit, a suit that was arising from a story by the playwright Lillian Hellman that was inspired by the March on Washington, August 1963, and published in Ladies Home Journal. So what can you tell us here about Lillian Hellman and her brush with a libel suit?

Aimee Edmondson: Sure, ’cause I mean, she’s so well known as, I mean, one of the best-known female playwrights of all time. There’s been so much written about her, and her papers are down at the University of Texas. Thankfully, there were a couple of folders in her papers detailing some of the correspondence and issues surrounding this libel suit.

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And so by the time she’s covering the March on Washington, she’s very famous. Ladies Home Journal says, “Hey, you’re from New Orleans. Why don’t you go and do a bit of a scene setter on the March on Washington?” And so she had planned to meet the grandson of her family’s maid when she was growing up back in New Orleans. Um, and the name of the article that Ladies Home Journal published was “Sophronia’s Son Goes to Washington.” [Editor’s Note: The actual name of the article was “Sophronia’s Grandson Goes to Washington.”] And so she tries to meet up with him at the Lincoln Memorial, never finds him, and so she ends up interviewing protestors, people who had come from Gadsden, Alabama. And they detailed for her instances of – of some pretty shocking police brutality when the protests were occurring in Gadsden, including using cattle prods, these electric charge –

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prods on protestors to get them off the courthouse steps and so forth. And these are protestors, of course, as we all know, who are exercising their First Amendment rights to petition their government for redress of grievances, right.

Um, and so she details these instances, and the sheriff from Gadsden, Alabama, sues Ladies Home Journal, and it’s just a carbon copy of the Sullivan case where you’ve got the top law man in the county who was being criticized for his official duties and he’s able to, you know, find some success in that, by that time, Ladies Home Journal owned by Curtis Publishing, had been sued several times. Um, most of those were civil rights-related suits, but not all of them.

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And so they were just tired, weary up to their eyeballs in debt, legal fees, and so they settled with the sheriff. And Lillian Hellman really – really stood by her guns and said, “You know, this is – this is important speech and you shouldn’t back down. You shouldn’t be afraid to tell the truth.”

Nick Hirshon: It’s interesting to think about people like Lillian Hellmann, who we don’t associate with being journalists, first and foremost but still have had these interactions. Of course, there’s a lot of cases involving celebrities and libel but usually where they’re the ones suing a news organization, not being sued.

We’ll be right back with Aimee Edmondson discussing libel law after a quick word about a new podcast that our listeners might be interested in.

History might be written by the winners, but in the race for the White House, American politics is often shaped by the long shots, the losing candidates who never had a chance but changed the course of history. Eight episodes, eight primary losers, like the first woman to run for president in ’72.

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1872. Or the labor leader who inspired Bernie Sanders and won a million votes while in prison. And the Republican populist who first called for a border wall and might be more responsible for Donald Trump than any other politician. You have to look back to know where we’re going. Long Shots, available wherever you listen to podcasts.

So you write how even after Sullivan, police officers and their lawyers were eager to suffocate any criticism and they were slow to absorb and react to the Supreme Court decision. In particular, you mentioned the aftermath of three shootings in 1964 in which police officers shot and killed black people and local civil rights leaders and their followers protested and held up “Wanted for Murder” signs, which included photos of the officers and their names and badge numbers. I believe this was happening in New York and New Jersey. And the officers sued for libel. So what do you make of this kind of slow acknowledgment that Sullivan is now the law of the land?

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Aimee Edmondson: Yeah, so glad you brought these up, Nick. I was thinking about these. Um, I have been in recent weeks especially with the protests that we’ve been seeing across the country. And the “Wanted for Murder” signs, you’ve got a police lieutenant, a highly decorated officer named Thomas Gilligan who shot an unarmed teenager, a young African-American man who was waiting for summer school to start. And it – it was really an astonishing case. Um, this is gonna bring about, you know, six nights of rioting, you know, thousands of people protesting. And they do carry these signs that say “wanted for murder,” you know, Lieutenant Gilligan, et cetera. Um, and when Officer Darren Wilson shot Michael Brown in Ferguson in 2014, they carried the exact same signs.

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And at the time I remember thinking, wow, nobody’s gonna say, okay, this is potentially libelous. The case law has been set. We’re settled. Now, Gilligan was able to sue as – as two other police officers were and – and bog down in court civil rights leaders such as James Farmer of CORE for – for these “Wanted for Murder” signs. And – and now here we are, you know fast-forward to 2014, and we – it seems like we – we need to make sure we don’t take for granted our right to criticize police officers in their official duties and – and thank goodness for that.

Um, and it’s important to note also that it’s not just the media getting sued in these examples but also civil rights leaders and protestors, and so behind the scenes, you’ve got Thurgood Marshall and other –

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civil rights attorneys who are not only fighting you know, to desegregate schools and – and all of these things that we know about, but they’re also in civil court, fighting these libel suits and just, you know, having to spend precious resources to defend their members.

Nick Hirshon: Right. It’s interesting to note that because even if the Times, let’s say, or these other journalistic outlets end up winning their cases, the amount of money that they have to expend to defend themselves, I know you mentioned that at various times in the book but they’re worried about can we even withstand this? Um, and you can imagine the way that our news media today is under so much financial pressure that the wrong libel suit for certainly a smaller publication news outlet could do them in. Um, so it’s a scary kind of intimidation tactic that some places are using.

Um, towards the end of the book now, you describe a lawsuit spawned by a film that maybe a lot of our listeners –

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are familiar with, 1988 film Mississippi Burning, starring Gene Hackman and Willem Dafoe, and the film shows FBI agents investigating the murder of three civil rights workers, and there’s this hulking, tobacco-chewing sheriff in the film that is a thinly veiled stand-in for the real-life sheriff named Lawrence Rainey, who sued the movie company for $8 million saying this was a, I guess, libelous, defamatory depiction of him. So what happened in this case of Mississippi Burning?

Aimee Edmondson: Yeah, so this is, like, really late, 1980s. So it’s – it’s kind of hard to believe that you would have a – a former police officer still trying to go this route with libel, given that these were depictions of – of a – of a fictitious character and so forth. You’re absolutely right. Um, and – and it shows us that he really believed himself to be a hero. He was a hero in his community –

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in Neshoba County, Mississippi. Um, and, you know, he – he is quoted as – as saying in some news outlets when the murders of the three civil rights workers occurred, it took me, you know, a really long time to get to work today ’cause I had to shake so many hands when he was believed to have been part of the – the conspiracy to – to murder the workers.

And the other thing that to me was really telling about that time was, because of his celebrity, in part for maintaining the racial status quo in Philadelphia and Mississippi, was he’s endorsing a chiropractor in the local newspaper. There’s an advertisement where the chiropractor’s going, you know, “We serve Lawrence Rainey,” you know, “this local celebrity.” So clearly at the time he did not feel defamed. Um, he sued several media outlets in the late 1960s, early 1970s.

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Those were unsuccessful, and so, again, with the Mississippi Burning case, he tried again. And I think so much of it was he had gone in his mind from hero to zero, right? And so he was just thinking, I’m on the wrong side of history and I – he – he also financially was really struggling. He was a security guard at that point. He was not reelected sheriff, and so he’s a security guard working at a grocery store owned by an African-American family by that point which I think is interesting to note.

Nick Hirshon: Certainly. Um, and it’s interesting, especially again for listeners who kind of see this not only in journalism but in a popular cultural product, and we don’t often think about maybe the connection with things like libel or slander and a movie or a song or anything else.

Aimee Edmondson: Right, and what’s so cool about that case is there’s an attorney named Jackson Ables, who says, “Okay, we’re –

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gonna take this on. We’re gonna prove that Lawrence Rainey actually did have something to do with the murder of the civil rights workers in Freedom Summer ’64. We’re going to prove truth, right? The ultimate defense in a libel suit.” And that’s when Lawrence Rainey very quickly drops the case. And I thought, wow, this has gotta be like really big news. Maybe in Mississippi or somewhere. And I didn’t see a whole lot of that anywhere else. So I felt like that was a – a pretty interesting breakthrough in terms of a finding. I had the opportunity to interview Jackson Ables, the attorney and then go through all of the court records.

And just one other thing before we leave this case, Nick. For the historians out there who are maybe not interested in becoming legal scholars, I’d – I’d love to encourage folks when you do have a subject who has been sued for anything – libel, anything – um, if you can get the court records, especially things like –

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a deposition or a trial transcript. I was able to use dialogue. I mean, what writer, you know, when – when everybody pretty much you’re writing about is dead, we’re historians, right? Um, so to have the dialogue, to hear Lawrence Rainey’s voice in his actual speech in the deposition and also in the trial transcript, what a gold mine. And those can be the kinds of details that a – that a historian might want. Um, maybe, you know, it doesn’t really have anything to do with the legal topic but just gives you insight into your character.

Nick Hirshon: Oh, certainly. I mean, I think that’s something that we tell our journalism students, right, not to ignore legal records ’cause they’re so used to maybe just doing interviews and observation as the key methods of reporting. Uh, but of course, finding these legal documents that have so many secrets squirreled away where sometimes people can’t hide because they’re subpoenaed –

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and they have to testify or just a lot of interesting things come up, as you say, from people who are no longer around so you can’t interview them today.

Aimee Edmondson: Right.

Nick Hirshon: A great resource.

Aimee Edmondson: Yeah. Another example was Ralph McGill from Atlanta. And of course, Pulitzer Prize-winning journalist, editor of the Atlanta Journal, and there was some amazing material in the court records. He was sued by General Edwin Walker for a column he wrote about Walker’s role in trying to fight U.S. marshals as the desegregation of Ole Miss was happening in 1962. And Ralph McGill had to file some papers with the court detailing his financials. And so you learn all these things about, you know, the debt load he has, the fact that he’s supporting his mother-in-law and she’s sick and all these different, really interesting personal details, um –

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that I just can’t imagine how else you would get something like that if you were doin’ a biography of Ralph McGill.

Nick Hirshon: Sure. Uh, no, wonderful reminder to certainly our listeners who are scholars or just, again, people who are reading these sorts of books. I think that it’s interesting to know where you’re getting all of this material and that it isn’t – it’s still possible to do something so many years afterward by consulting these kinds of records and get a lot of narrative detail and really feel like you’re in the courtroom as this is happening as you’re doing that. And with – especially as you mentioned with Mississippi Burning, you know, that there could be a lawsuit so long after what we consider to be the traditional Civil Rights Movement period. Um, so people wouldn’t be surprised when we’re talking about New York Times v. Sullivan, okay, the ’60s, that kind of meshes with what most people’s, you know, public consciousness of that event. Uh, but to then see something as late as 1988 is kind of stunning, and I guess that brings us to, you know, what has happened since 1988.

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Um, so I know that, you know, your book kind of wraps with some of that sorta stuff in the ’80s, but as you’ve kind of, of course, lived these, you know, years since in leading up to Trump and what you mentioned before about his attacks on the media and his insistence that the libel laws are too strong and he’s gonna undo them and – and all of that. Uh, what kinda stands out to you? Maybe things that you, you know, weren’t able to tackle in this book, maybe in the next book, but what kinda stands out to you in libel law since 1988?

Aimee Edmondson: Oh yeah. Well, aren’t we seeing quite the resurgence these days? There’s been a lot of good work in the press detailing how litigious President Trump has been. And there was again an article very recently about his desire to silence speech critical of him in the context of nondisclosure agreements and how many he has had. Um, all of his employees over the –

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years, hundreds of people were having to – to sign these agreements not to talk about things relating to his businesses or – or anything critical about him. So not just within the context of libel, but most certainly within the – the context of nondisclosure agreements.

But I’m also seeing, you know, other politicians who are starting to use libel as a weapon in ways that are somewhat alarming. Um, it – it’s – the – the law is very unlikely to be changed unless we have a drastic change in our U.S. Supreme Court, which of course, that is possible, but the idea that your – we’re still seeing these SLAPP suits, right, strategic lawsuits against public participation and of course we have anti-SLAPP laws in most states now and these are –

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of course lawsuits that are really deemed – um, they’re not going to succeed were they to go to court but still the resources you have to put behind defending yourself against a libel suit, right? If you don’t show up, you – you’re gonna lose by default, so you have to hire a lawyer, you have to deal with this situation in court. And so I think that’s got a real I’m pretty – pretty worried about, you know, that chilling speech, right, as Justice Brennan says in New York Times v. Sullivan. So we really have seen an uptick in these libel suits. It’s – it’s relating to political speech, critical speech and typically it’s coming from politicians on the right as – as well as public figures. So – so I – I’m watching this closely, a bit concerned that Clarence Thomas thinks it might not be a bad idea.

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Of course, Justice Thomas the only African American on the court who says it might not be a bad idea to revisit libel law, that maybe things are too free. Um, so yeah, there’s a – definitely a lot to keep a close eye on these days.

Nick Hirshon: Yeah, I find it interesting that we talk so much as we, you know, start to wrap up our conversation about your book, and I’ll have one more question for you after that, but we talk so much about this current composition of the Supreme Court and what they might do, and everybody’s eagerly awaiting their decisions and could they revisit something like Roe v. Wade and abortion, but we don’t hear so much about New York Times v. Sullivan, and I think a reason why is because the large majority of the populace doesn’t think that it affects them, you know, those public officials, that doesn’t affect me and journalists, that’s not part of my life. But as you mentioned, it could be something that actually does get revisited and, if the composition of the court keeps changing do you think that there is a chance that we could see New York Times v. Sullivan revisited and overturned?

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Aimee Edmondson: I – I really have a hard time imagining that scenario, and I think that President Trump has also been counseled to this effect. And – and what we’re seeing that – instead, is this age of alternative facts, the whole fake news moniker that – that of course we’ve all heard so many times. And if you look at David McGraw’s book, now he’s the general counsel for the New York Times. He wrote a book called Truth in Our Times: Inside the Fight for Freedom of the Press in an Age of Alternative Facts. And so what he is saying – amazing book, strongly recommend it – is that, you know, these efforts to discredit the press with this fake news moniker are gonna be much more successful than trying to shut down speech critical of the president, you know, through the court system.

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And so I think that what he has done is – is so much more effective with a large segment of our population on the far right who just don’t believe mainstream media anymore. Um, I think that’s been his answer rather than trying to rewrite libel law.

Nick Hirshon: Right. Well, we certainly hope so as journalists and journalism professors but it is a fascinating topic and we thank you for bringing it to our attention. And as we wrap up the episode today, I’d like to just pose a question to you that we always ask the guests to end the podcast. Why do you think journalism history matters?

Aimee Edmondson: How do we know where we’re going if we don’t know where we’ve been? How can we, as journalists, not know our history? If you don’t know the history of your craft, you’re living your –

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life and your work like a child who doesn’t – hasn’t yet learned history. And so we really want childish notions of freedom of the press?

Nick Hirshon: A wonderful way to kind of sum it up. Certainly we agree. I think that in your book, one of the great aspects of it, again, is that it shows us how it’s not just a fight for journalists here, with libel and learning about the history of it, that it affects things like civil rights that it affects everybody maybe more than we really believe that this could be used as some sort of a tool brandished by authority just to squelch any criticism of them. Um, and that’s the same as if you’re writing a letter to the editor or writing a blog post or a social media post so you certainly have made that all come together in your great book, In Sullivan’s Shadow, and we thank you for all the time you’ve given us today on the Journalism History podcast.

[0:34:00]

Aimee Edmondson: Thank you, Nick. It’s been so great talking to you. Very honored to win this runner-up award. Very excited.

Nick Hirshon: Thanks for tuning in to this episode of the Journalism History podcast. And additional thanks to our sponsor, Taylor and Francis. Until next time, I’m your host, Nick Hirshon, signing off with the words of Edward R. Murrow: “Good night, and good luck.”

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