Once Haley had learned that Malcolm did not trust tape recorders, he sat patiently at his typewriter while Malcolm brooded across the gulf between them. Eventually, the ex-con Muslim sectarian and the mild-mannered writer established a working relationship based in part on common interests such as a love of Shakespeare. As Malcolm gradually disclosed his life, he maintained a disciplined reverence for Muhammad in private speech, so that Haley had no inkling of the explosive schism building between Malcolm and Chicago. Malcolm walled it off except for one or two classical allusions that he scribbled on a notepad: “You have not converted a man because you have silenced him—John Viscount Morley.”
From the airport session, Malcolm flew to Miami with his pregnant wife, Betty, and their three daughters. It was their first family trip in six years of marriage. The Miami FBI office picked up the strange informant report that a Malcolm X party was met and escorted to their hotel by the flamboyant young boxer Cassius Clay, known as the “Louisville Lip,” who was training for a February bout against heavyweight champion Sonny Liston. FBI analysts—perhaps more informed on the raw internal politics of the Nation than all but a handful of its leaders—were so skeptical of the unlikely pairing that the Miami office did not report the tip to FBI headquarters until five days later on January 21, when confirming informants reported that Cassius Clay flew with Malcolm to New York for a Temple No. 7 dinner at the Rockland Palace. Malcolm honored his banishment by declining to attend, but Clay teased the crowd of better than four thousand with the Muslim greeting and rejoined Malcolm for the return flight to Miami. Both the Miami and New York FBI offices rushed the puzzling news to headquarters by air telegram.
POPE PAUL VI dominated world news during the first week of 1964 with his three-day pilgrimage—the first papal trip of any kind taken by airplane, and first papal visit to the Holy Land since the original Apostle Peter left Palestine for Rome in the first century. The Pope uttered the Muslim greeting on arrival in Amman, Jordan, and throngs surrounded his motorcade on its path down to Emir Abdullah Bridge, where Paul VI stood in silent vigil overlooking the Jordan River while the young Jordanian King Hussein piloted a security helicopter overhead. Inside the Damascus Gate to the Old City of Jerusalem, ecstatic worshippers were compressed so tightly in the narrow streets that several Jordanian police were trampled and the Pope’s entourage briefly panicked for fear of being crushed.
On January 5, among private audiences for some of the visiting dignitaries who attended his historic mass at Nazareth, Pope Paul received Sargent Shriver, the director of the American Peace Corps, who delivered a goodwill letter from President Johnson. Though awed by the occasion, Shriver asked for a papal blessing upon the wooden crucifix he had supplied when President Kennedy’s body lay in state, and Paul VI invited Shriver to accompany him back to Jerusalem, where that night he was to greet the Orthodox Patriarch Athenagoras of Constantinople. In their twenty-nine-minute summit on the Mount of Olives—the first of its kind since an abortive meeting in 1431 between Pope Eugenius IV and Patriarch Joseph II—Paul VI and Athenagoras pledged to end the mutual excommunication that had divided the church into East and West since 1054.
With Shriver in the background stood the Greek Archbishop Iakovos of New York, the Patriarch’s deputy for the Western Hemisphere, who had served for some years as a kind of secret agent of reconciliation for the Orthodox Church, working at the Vatican on a track parallel to that of Rabbi Abraham Heschel for the Jews. In 1965, Iakovos and Heschel would join as the two ranking clergy to march alongside Martin Luther King under threat of death in Selma, but for the moment, most observers struggled to acquaint themselves with the ancient religious separations between the leaders of half a billion white Christians.
As Shriver continued his courier’s journey around the globe delivering presidential letters to the King of Nepal and other world rulers, he took with him ecumenical inspiration on the grandest scale. To Muslim audiences in the Holy Land, Pope Paul had quoted the Apostle Peter, who in turn was quoting the Psalmist King David: “He that would love life and see good days, let him keep his tongue from evil and seek peace and pursue it.” Religious politics seethed beneath the biblical words. Although Pope Paul was careful never to speak the word “Israel” or otherwise recognize the Jewish state in ceremonies with Israeli leaders, his visit inflamed anti-Israeli sentiments. At a closed conference in February, bishops representing the Christian minorities of the Middle East joined with theological supremacists in Rome to strip the long-proposed statement of fraternal truce with Jews and Judaism from the fall agenda of the Vatican Council.
ON JANUARY 6, as Pope Paul VI returned to Rome and Malcolm X submitted to summary court in Phoenix, Martin Luther King took a reserved seat at the U.S. Supreme Court for oral argument in the Sullivan case. He arrived among celebrities conscious of a historic occasion that commanded the attendance of three former U.S. Attorneys General and featured opening remarks warning the Court of constitutional dangers “not confronted since the early days of the Republic.” From the bench, Justice Arthur Goldberg discreetly sent down his copy of Stride Toward Freedom, King’s book about the Montgomery bus boycott, with a note requesting an autograph.
On the appointed day, the Court never reached the portion of the Sullivan case closest to King. Having divided the appeal into two halves, the Justices consumed extra time with the arguments for and against the co-appellant New York Times, which Alabama courts had found guilty of libel for publishing the original 1960 advertisement seeking funds to defend King. The Justices held over the “Negro half” of the case, the libel judgments against King’s four ministerial colleagues: Ralph Abernathy, Joseph Lowery, S. S. Seay, and Fred Shuttlesworth. This overnight delay, while a letdown, gave King an opportunity to meet with all his side’s lawyers that afternoon at the Washington office of William Rogers, Eisenhower’s second attorney general, whom Harry Wachtel had recruited for the oral argument.
Now and then for the rest of King’s life, Wachtel was to be called Stanley Levison’s “twin” by Negroes of the inner circle, who quipped that the only white advisers close to King were interchangeable Jewish lawyers from New York—you could not tell them apart, went the joke, which extended to a sporting confusion between their wives, Bea Levison and Lucy Wachtel. A relative newcomer, having first met King in 1962, Wachtel was a powerful corporate lawyer longing to recover some of the idealism of his days as a student radical in the 1930s. With Clarence Jones, he had drafted appellate briefs in the Sullivan case and incorporated for King’s projects in nonviolence a tax-exempt conduit called the Gandhi Society. Brash and aggressive, Wachtel pushed himself forward as a partial replacement for Levison during the latter’s grudging withdrawal. Although he lacked the monkish Levison’s writing skills and long-established personal bond with King, Wachtel brought complementary talents as a successful practicing lawyer with connections in high places. From previous business dealings, he called Rogers by his first name, Bill, when he introduced the highly prized counsel to King.
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 defensiv
e 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.
FROM 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.”
FOR KING, 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 consid
eration, 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.”
Pillar of Fire Page 30