The US lawyer who helped formulate one of his country's most important journalistic safeguards died on April 26th aged 90. Herbert Wechsler was already a formidable legal academic when the New York Times retained him to argue its appeal in the US supreme court against libel damages of $500,000 imposed by the Alabama courts.
On March 29th, 1960, the paper had carried a full-page advertisement seeking support for civil rights demonstrators in the state capital, Montgomery. The text listed actions taken by the local police to suppress peaceful protest, but got some of the details wrong. Though not named in the advertisement, the Montgomery police commissioner, Col L.B. Sullivan, claimed he had been libelled by inference. An all-white jury upheld his case and the verdict was confirmed by the higher courts in Alabama.
Finally, on January 6th, 1964, the issue came before the ultimate constitutional arbiters, the Federal Supreme Court in Washington. The presumption was that Herbert Wechsler would base his appeal on the free speech guarantees of the US constitution's first amendment, relying on precedents going back 200 years. He certainly harked back to the earliest days of the republic, but startled everyone by citing not the Bill of Rights but the long-dead Sedition Act of 1798.
This had originally been passed to counter the violent criticisms levelled by Thomas Jefferson's supporters at President John Adams. Its purpose was to criminalise "any false, scandalous and malicious writings against the government of the United States" and resulted in 10 newspaper editors and a congressman being fined and imprisoned.
The measure came under ferocious assault from James Madison and other US constitutional experts. Their objections stirred up a general revulsion, which brought about the disintegration of Adams's Federalist party. Jefferson won the White House and let the act expire under its own provisions in 1801. But the scars lingered. As Justice William Brennan noted in the court's unanimous 1964 finding in favour of the New York Times, "though the Sedition Act was never tested in this court, the attack upon its validity carried the day in the court of history".
The logic of this new ruling, as Herbert Wechsler had shrewdly anticipated, automatically legitimised any attacks on public officials which were not "false, scandalous, or malicious". In Justice Brennan's words, "the possibility that a good faith critic of government will be penalised for his criticism . . . strikes at the very centre of the constitutionally protected area of free expression".
For the past 36 years, therefore, in a significant extension of the US's lively democratic debate, officials claiming libel are obliged to establish malicious intent.
Herbert Wechsler's court strategy stemmed from his encyclopaedic knowledge of US jurisprudence, accumulated during a long professorial stint at Columbia Law School in New York. In tandem with his academic post, he had served for 21 years as director of the American Law Institute and was co-author of one of the nation's principal legal reference books.
His interest at university had been in French, which he had hoped to teach at New York City College. However, his father persuaded the college that he should follow him into the law, and after postgraduate service as a clerk at the supreme court, he joined Columbia Law School in 1933. He stayed for 45 years.
Ironically, in view of his later concerns, his war service was spent administering the highly controversial (and, as it was later ruled, unconstitutional) internment of 110,000 Japanese-American citizens. In 1945, he became a technical adviser to the US team at the Nuremberg trials, and was such a trusted confidant of Francis Biddle, the senior American judge on the tribunal, that he eventually wrote a section of the court's final judgment.
The work of which Herbert Wechsler was proudest was his law institute's 1962 model penal code, which he spent 10 years compiling. This sprang from the extraordinary legal tangle which history has left across the 50 states of the union. Some have statutes dating from colonial days, others reflect conditions prevailing when they were barely-inhabited territories. His code was designed to help state legislatures achieve greater uniformity. It has helped, though there is a long way to go.
Herbert Wechsler's most controversial legal excursion came in the Harvard Law Review in 1979, where he put the case for what he called "neutral principles". Examining the supreme court's reasoning in Brown v Board of Education (the famous 1954 desegregation ruling), he argued that the court had merely set out to achieve a specific result rather than to concern itself with broad principles.
There was an immediate storm of protest in which opponents pointed out that his criteria would make segregation and affirmative action equally unconstitutional, since both involved racial discrimination. The argument was even joined by supreme court Justice John Paul Stevens. "There is no moral or constitutional equivalence", he declared, "between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination".
Herbert Wechsler is survived by his wife, Doris.
Herbert Wechsler: born 1909; died April, 2000