The Warren Court (1953–69)

Freedom of Expression

Which justices would have gone even farther than the majority in protecting the press in Times v. Sullivan?

Justices Hugo Black, William O. Douglas, and Arthur Goldberg would have given the press even more freedom under the First Amendment than the majority gave in New York Times Co. v. Sullivan. Justice Black wrote a concurring opinion that was joined by Douglas. Black expressed the view that the newspaper had “an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials.” Black explained that the First Amendment flatly prohibited such libel suits: “In my opinion the Federal Constitution has dealt with this deadly danger to the press in the only way possible without leaving the free press open to destruction—by granting the press an absolute immunity for criticism of the way public officials do their public duty.” Justice Goldberg also wrote a concurring opinion (which Douglas also joined) that expressed a view similar to Black: “In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses.”


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