Tuesday, December 22, 2015
A Tribute to M. Roland Nachman, Jr., R.I.P.
Merton Roland Nachman, Jr., a 91 year old Montgomery, Alabama attorney passed away on November 24. He led a good life as an attorney and public citizen. M. Roland Nachman was a pillar of the Alabama Bar and nationally recognized as a trial attorney. I didn’t know him. I never met him. I didn’t even know who he was until two months ago, but was amazed by what I discovered. His nickname was “Rod,” as in “fishing rod.” I’ve taught the famous defamation case of New York Times v. Sullivan for over four decades. The facts are pretty clear. Four Civil Rights leaders, including A. Philip Randolph and Bayard Rustin, during the height of the Civil Rights Movement decided to target Montgomery, Alabama Commissioner L.B. Sullivan as a racist and bigot, which he clearly was. They ran an $8,000 full-page ad in the New York Times on March 29, 1960. It was entitled “Heed Their Rising Voices,” Seeking to raise money for the legal defense of Reverend King in a criminal perjury case. The ad further depicted the violent history of the struggle for civil rights in Alabama. The ad did not mention Sullivan by name or position, but he argued it defamed him. The New York Times, as publisher of the ad, was legally a publisher of the allegedly defamatory remarks. Sullivan was a city commissioner in charge of the Montgomery Police, similar to the more infamous Bull Conner in Birmingham, Alabama. Montgomery was both the Birthplace of the Confederacy and the Cradle of the Civil Rights Movement, beginning most spectacularly with the Montgomery Bus Boycott and the arrival of the Reverend Martin Luther King, Jr. to the Dexter Avenue Baptist Church in Montgomery. A critical movement in the struggle was the violence against the Freedom Riders in Anniston, Birmingham and Montgomery. Governor John Patterson and Commissioner Sullivan promised John Seigenthaler, the Special Representative from Attorney General Robert F. Kennedy, that the riders would be protected when they arrived in Montgomery the next day. No police were present when the Greyhound Bus arrived on May 20, 1961. Instead, the Freedom Riders were greeted by a mob of KKK thugs, who proceeded to viciously beat the Freedom Riders, often to the point of death. One of the battered Freedom Riders was a young college student, John Lewis, who is now a Congressman from Atlanta. John Lewis subsequently had his skull cracked in the police attack on the Edmund Pettus Bridge in Selma. Sullivan told the KKK representative that they had 10 minutes to do as they pleased with the bus riders. In addition, he sent all the “white” ambulances into the repair shop for the day, delaying critical medical care to a few of the victims. Commissioner Sullivan had sent the police home. Fatalities were avoided when Colonel Floyd Mann, the Alabama Commissioner of Public Safety (1959-1963), came to the rescue of the victims with the Alabama State Patrol, which was under his control. Colonel Mann was one of the unsung White heroes of the Civil Rights Movement in Alabama. He believed in segregation, but also believed in the rule of law, having served in law enforcement most of his adult life. He felt the police should not assist the rabid segregationists. Yes, Lester Bruce Sullivan was an unabashed bigot. For example, he had recommended closing Alabama State during student boycotts. He said the university, one of the separate but unequal universities, provided only “graduates of hate and racial bitterness.” M. Roland Nachman was the attorney for Commissioner Sullivan in his defamation suit against the New York Times. He had seen the ad in the New York Times and brought it to the attention of the three Montgomery Commissioners. He said he thought it was a perfect defamation suit. Alabama recognized truth as an absolute defense to defamation, but Alabama followed the majority rule that the truth had to match the defamatory remark. The ad was off in several minor details, including the song the students boycotting Alabama State sang, and the number of times the Reverend King was arrested. Thus the libel was actionable. The jury took 2 hours and 20 minutes in finding for Sullivan, awarding $500,000 in damages. For some reason a few months ago I researched the background of the case. Nachman was the attorney for plaintiff Sullivan. It was fascinating reading up on him. The case was part of the larger Southern fight against integration. The purpose of the lawsuit and others was to muzzle the Northern press, especially the New York Times and CBS. $300 million in claims were pending against the media. Nachman though was not a dyed in the wool Southern racist. He was moderate and a supporter of Civil Rights. He was born and raised in the caldron of Southern racism, but he attended Harvard University, graduating cum laude in 1943, and then served in Naval Intelligence. He returned to Harvard after the War and graduated from Harvard Law School in 1948. He returned to Montgomery as an Assistant Attorney General for the state. He always loved his years at Harvard, and often summered on Cape Cod. He knew a wider world than the segregationist South he grew up in. He served as President of the Alabama Bar Association from 1973-74. He also served on the Board of Governors of the American Bar Association, and as a director of the American Judicature Society. He was eminently respected as a trial lawyer, having been a fellow of the American College of Trial lawyers. He was a member of the American Law Institute and listed in 1997-98 in the Best Lawyers in America. M. Roland Nachman, Jr. was a very good lawyer. He won the case in the Alabama courts, but recognized before the United States Supreme Court that “Either I will win this case, or they will change the law of the land.” The Supreme Court unanimously changed the law of the land, bringing defamation under purview the Freedom of Speech Clause of the First Amendment. The Court promulgated the famous test of actual malice in cases of public officials against media defendants. Actual malice means that the paper published the statement knowing of its falsity or in reckless disregard of its falsity. The Court then decided for itself that the facts did not meet the actual malice standard eventhough plaintiff had evidence that the newspaper ignored the warnings of its local stringers that there were inaccuracies in the ad. Nachman was quoted later in life that he would have preferred to be on the winning side of the decision rather than the losing side. He lost the case, but won the legal battle for later defendants. He subsequently represented a number of media defendants in defamation cases. He used New York Times v. Sullivan, to successfully argue the actual malice test. His daughter once asked him why he became a lawyer. He chose the law “because it solves the problems of mankind and sets the standard of behavior.” Well said! Life well led!