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Nov 30, 2015

Sullivan's Lawyer in Times Case Dies

The Montgomery (Ala.) Advertiser reports that Merton "Rod" Roland Nachman, the attorney who represented Montgomery city commissioner Lester B. Sullivan in the landmark case against The New York Times, has died at age 91.

Of course, New York Times v. Sullivan ended with a victory for the newspaper, and was the start of major changes in the law regarding free speech in this country. In that decision and those that followed, the Supreme Court and lower federal and state courts recognized that the First Amendment's statement that "Congress [and, the courts said, other bodies of federal, state and local government] shall make no law ... abridging the freedom of speech, or of the press ..." actually had meaning beyond a prohibition of prior restraints. In the process, the law regarding defamation, privacy, access to government, and many other areas of law affecting the media were fundamentally changed to favor less restrictions on expression.

It's easy to cast Nachman as a villain in the story of the Sullivan case, along with his client. But Nachman was an accomplished attorney who attended Harvard Law School and made his first argument before the U.S. Supreme Court at the age of 27 -- and won that case. In his private practice he defended the Montgomery Advertiser and the Alabama Journal in defamation suits, but also won suits against the New York-based Ken pulp magazine and against Jet magazine. He was, in short, one of Alabama's premier defamation attorneys, and a political moderate, and he did not like the way the South was portrayed in northern news reports.

Now, lawyers are generally on one "side" of defamation cases, plaintiffs' or defendants', throughout their careers,but this is a post-Sullivan development. And it should be noted that Nachman got his newspaper clients' OK to represent Sullivan in his suit against the Times.

Under the law at the time, Sullivan had a very good argument, and Nachman was confident about his case. "I had confidently predicted that the only way the Court could decide against me was to change 100 years or more of libel law," he said at an event marking the 20th anniversary of the Sullivan decision. "That is precisely what the Court did."

That the Court did so is, of course, rightly recognized as a landmark event in American law, and in the development of the conception of the First Amendment. And even though he was on the losing side, M. Roland Nachman helped make that revolution in American media law possible.

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