BROOKE GLADSTONE: Supreme Court Justice William J. Brennan once said: “Law cannot stand aside from the social changes around it.” Brennan served on the Court from 1956 to 1990, a time of extraordinary social upheaval in America, and during that time he helped forge the modern interpretation of the First Amendment that we now take for granted. But his personal opinions didn't always line up comfortably with his legal ones. Seth Stern is a reporter for Congressional Quarterly and co-author of the new biography titled Justice Brennan: Liberal Champion. Seth, welcome to On the Media.

SETH STERN: Thanks so much for having me.

BROOKE GLADSTONE: So could you begin in 1964 with one of Brennan’s earliest and most famous decisions, New York Times vs. Sullivan?

SETH STERN: Sure. The case actually goes back to March, 1960. An ad appeared in The New York Times soliciting contributions for a committee to defend Martin Luther King and the Civil Rights Movement, and the ad condemned violence directed at civil rights demonstrators. It didn't refer to any Southerners by name, but L.B. Sullivan, a Montgomery, Alabama city commissioner, filed suit against The Times and four of the clergymen who had signed the ad, claiming the ad’s references to Alabama had defamed him. Now, the ad contains some minor errors, such as suggesting students had sung My Country ‘Tis of Thee rather than The Star-Spangled Banner, which they had actually sung, and an Alabama jury awarded Sullivan 500,000 dollars.

[BROOKE LAUGHS] Several other local officials in Alabama filed suit, and The Times soon faced millions of dollars in potential damages. Now, the goal for those filing suit was to drive The Times and other news organizations out of the South, and the idea was if they could force the reporters out, the news coverage and the sympathy might dry up.

BROOKE GLADSTONE: Seth, you’re going to have to explain to me what the significance of mixing up The Star-Spangled Banner and My Country 'Tis of Thee is to the charge of libel leveled by Sullivan.

SETH STERN: The state of libel law in that area was that any error was an error and you could recover for those errors if the defendant couldn't prove the truth of the statement at issue, and so it was almost a trap. And in news coverage there’s inevitably inadvertent errors.

BROOKE GLADSTONE: So how was Brennan’s decision important to our understanding of a free press?

SETH STERN: Well, up to that point, libel law had really been weighted heavily in favor of those filing suit. Brennan basically put the burden on a plaintiff to prove that a defendant had knowingly or recklessly published a falsehood. The term of art that he used was “actual malice,” and he actually came to have some regrets, some buyer’s remorse about using that term [BROOKE LAUGHS], as he told my co-author. He came to view it as too confusing for jurors who came to associate this notion of actual malice with the idea of hatred or ill will, and that really wasn't what was meant by the term “actual malice.”

BROOKE GLADSTONE: You've said that Chief Justice Earl Warren asked Brennan to write the Sullivan opinion because, at least in part, Brennan had carved out a niche in the areas of free expression and obscenity.

SETH STERN: His very first term on the Supreme Court a case came up, someone was accused of violating the federal statute barring the mailing of obscene materials. His name was Samuel Roth. And Chief Justice Warren, who was very famously prudish and uncomfortable with obscenity, assigned the case to Brennan. It was an unusually high-profile assignment for a freshman justice. And Brennan himself was pretty uneasy with obscenity, but he wound up writing an opinion that helped liberalize obscenity law.

BROOKE GLADSTONE: Out of it emerged the so-called “Roth Test.” Could you describe that?

SETH STERN: Well, he defined obscenity as whether to an average person applying contemporary community standards, the dominant theme appeals to the prurient interest. This was a deviation from the prevailing standard. It was according to the average person, not the most sensitive person who might be easily offended. It was whether the dominant theme of the work was obscene, rather than just a choice excerpt. In the past, you could have a very brief passage in a book and an entire work might be deemed obscene. Very quickly it would prove to be the vehicle for liberalizing obscenity law.

BROOKE GLADSTONE: He came to the conclusion ultimately that obscenity ought to be protected, unless it’s distributed to minors.

SETH STERN: Yes, the Court ultimately went in that direction. They basically got themselves out of the business of trying to determine whether individual works were obscene or not. There was a point in the '60s and '70s, famously recounted in The Brethren, the Bob Woodward account of the Supreme Court in 1979, where the justices would gather in a basement room and watch obscene movies [BROOKE LAUGHS], along with their clerks. It was very distasteful to all of them, and I think they were quite happy to get out of that sort of [BROOKE LAUGHS] micromanagement of obscenity.

BROOKE GLADSTONE: Much later in his career, flag burning came before the Court. Can you tell us what Brennan had to say about speaking with fire?

SETH STERN: In 1984, Gregory Johnson had burned a flag outside Dallas City Hall during the Republican National Convention that was held there. He was convicted under a Texas law, and the case reached the Supreme Court in 1989. By that point, Brennan had been in the Court for 33 years and he wrote a majority opinion ruling that expression can't be prohibited simply because it’s offensive. And that decision prompted a furious backlash. Flags were mailed to him of every shape and size. A neighbor in his condo building hung a flag on the door so that every time he got off the elevator he couldn't miss it. The President signed into law quickly a federal flag burning law, but Brennan was really unbowed, and a year later he wrote a 5-4 decision striking down that Flag Protection Act.

BROOKE GLADSTONE: Now, I mentioned in the introduction that Brennan’s legal opinions sometimes were in conflict with his personal opinions or even his behavior. He was a champion of speech and the press and yet, he rarely, if ever, gave interviews and was generally distrustful of reporters.

SETH STERN: Absolutely, reporters drove him crazy. And yet, he really believed that unpopular and sometimes offensive speech is the price that we have to pay to have free speech and to have robust public debate.

BROOKE GLADSTONE: Thank you very much.

SETH STERN: Thank you.

BROOKE GLADSTONE: Seth Stern is a reporter for Congressional Quarterly and co-author, with Stephen Wermiel, of Justice Brennan: Liberal Champion.

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