“Pure Caucasian Blood”: Libel by Racial Misidentification in American Newspapers (1900–1957)

Abstract

Utilizing critical race theory, we can better understand the role that the American legal system and newspapers played in their efforts to maintain the racial status quo prior to the civil rights movement of the 1960s. At the intersection of race, journalism, and libel law, we see a rich vein of case law spawned from newspapers erroneously identifying white people as black. Such racial misidentification prompted a series of libel suits from 1900 to 1957 before the US Supreme Court placed libel law under First Amendment protection in New York Times v. Sullivan. Jim Crow had long been secure in southern newspapers and some errors in racial identification were inevitable. Before Sullivan, it could indeed be libelous when newspapers falsely identified white people as black.

Notes

1 Gomez v. Daily News Co., Superior Court of California, Case number CGC-29-213527, filed October 31, 1929.

2 The word “Portuguese” was not mentioned in the complaint.

3 Sidney McMechen Van Wyck to Arthur B. Spingarn, Chairman of the NAACP Legal Committee of the NAACP, December 24, 1929. W.E.B. Du Bois Papers. Special Collections and University Archives, University of Massachusetts Amherst Libraries.

4 Ibid. See also Charles S. Mangum, Jr. The Legal Status of the Negro (New York: D. Appleton-Century Co., 1939). This was among the first treatises to examine the topic as interpreted by United States courts in specific areas of civil rights, including citizenship, education, property rights, Jim Crow laws, interracial marriage, jury selection, voting franchise and other areas.

5 Van Wyck to Springarn, W.E.B. Du Bois Papers.

6 “Court Asked If Negro Is Whites Equal,” Indianapolis Recorder, March 1, 1930, 1.

7 376 U.S. 254 (1964).

8 376 U.S. 255.

9 Libel per se refers to statements that are libelous on their face, such as falsely accusing someone of committing a crime, such as a thief or murderer, or of immoral acts, for example.

10 Samuel Brenner, “‘Negro Blood in his Veins’: The Development and Disappearance of the Doctrine of Defamation per se by Racial Misidentification in the American South,” Santa Clara Law Review 50 (2010): 333. ther scholars who have contributed to this area prior to Brenner include: John C. Watson, “Defamation by Racial Misidentification: A Study of the Social Tort,” Rutgers Race & the Law Review 4 (2002): 77; Gilbert Thomas Stephenson, Race Distinctions in Modern Law (New York: Appleton and Company, 1910); Other brief mentions can be found in Francis H. Bohlen, Cases on the Law of Torts (Indianapolis: The Bobbs-Merrill Co., 1925); Thomas M. Cooley, A Treatise on the Law of Torts (Chicago: Callaghan & Company, 1907), identifying to date four relevant cases; Martin L. Newel, The Law of Defamation, Libel and Slander in Civil and Criminal Cases (Chicago: Callaghan and Co, 1890), identifying two relevant cases; Thomas Starkie, A Treatise on the Law of Slander, Scandalum Magnatum and False Rumors (New York: George Lamson, 1826); John Townshend, A Treatise on the Wrongs Called Slander and Libel (New York: Baker Voorhis & Co., 1890).

11 Slander cases, of course, involve those instances where the allegedly defamatory statement was spoken rather than written. Some notable examples from Mississippi, Louisiana, South Carolina, Arkansas and Virginia include: Scott v. Peebles, 10 Miss. (2 S. & M.) 546 (1844), holding that Alpha Peebles slandered James Scott when he told a third party that Scott “had negro blood in him”; Dobard v. Nunez, 6 La. Ann. 294 (1851), where the defendant was held liable for saying the plaintiff’s family is made up of “colored people”; and Smith v. Hamilton, 44 S.C.L. (10 Rich) 44, 48 (Ct. App. 1856) where the plaintiff brought suit against a defendant who said her child was a mulatto; Morris v. State, 160 S.W. 387 (Ark. 1913), where Bill Morris was held to have libeled Mrs. James Holt when he said her “father was a thief, her mother a negro, and she was a half-breed”; and Mopsikov v. Cook, 95 S.E. 426 (Av. 1918), finding for the plaintiff that the defendant’s daughter routinely called defendant’s daughter “a nigger doll.”

12 Watson, “Defamation by Racial Misidentification,” 77.

13 Among the most noted works on the Sullivan case relating to the civil rights movement are: Anthony Lewis, Make No Law, The Sullivan Case and the First Amendment (New York: Random House, 1991); and Kermit L. Hall and Melvin I. Urofsky, New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press (Lawrence: University Press of Kansas, 2011). See also, Aimee Edmondson, In Sullivan’s Shadow: The Use and Abuse of Libel Law during the Long Civil Rights Struggle (Amherst: University of Massachusetts Press, 2019.)

14 The literature in this area of American history is vast. Particularly helpful for the purposes of this study, however, was Leslie V. Tischauser, Jim Crow Laws (Santa Barbara, CA: Greenwood, 2012).

15 For detailed accounts of the treatment of African Americans in white newspapers, see, for example, Ira Harkey, The Smell of Burning Crosses (Jacksonville: Delphi Press, 1967); David R. Davies, ed., The Press and Race, Mississippi Journalists Confront the Movement (Jackson: University Press of Mississippi, 2001); Gene Roberts and Hank Klibanoff, The Race Beat: The Press, the Civil Rights Struggle, and the Awakening of a Nation (New York: Alfred A. Knopf, 2006); and Craig Flournoy, “Reporting the Movement in Black and White: The Emmett Till Lynching and the Montgomery Bus Boycott” (PhD dissertation, Louisiana State University, 2003).

16 This included courts in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, South Carolina, Tennessee, Texas and Virginia. In cases in southern states, only North Carolina rejected the doctrine.

17 This included courts in California, Washington, D.C., Illinois, Kansas, New York, Ohio, and New York. The only state outside the South to accept the doctrine was Oklahoma.

18 Eden v. Legare, 1 Bay 171, 1 S.C. L. 171 (1791). This is not a case involving a newspaper, but is worthy of mention since it is the first recorded libel or slander case relating to racial misidentification. Two later South Carolina courts held that calling a white person a mulatto was actionable in the early 1800s, also in non-media related cases. Those were Wood v. King, 1 Nott & McC. 184, 10 S.C.L. 184 (1818), and Atkinson v. Hartley, 1 McCord 203, 12 S.C.L. 203 (1821).

19 Bowen v. Independent Publishing Co., 230 S.C. 509; 96 S.E. 2d 564 (1957).

20 Various iterations of this keyword search were undertaken after the author located cases identifying African Americans as “colored” or “mulatto” in court records.

21 The Chicago Defender editions searched included all newspapers from 1909–1973, yielding 831 results, and the Pittsburgh Courier was searched from 1911–1966, yielding 491 results. A search of African American Newspapers from 1827 to 1998 yielded 529 articles.

22 One case was located, however, that involved a libel suit against the Atlanta City Directory company for listing a woman as a negro in the 1950 edition. The woman, described in newspaper reports as “an elderly, white lady of social prominence,” sought $50,000, alleging that the incorrect listing brought her “much embarrassment and humiliation.”

23 In the late 1970s, Harvard University law professor Derrick Bell was among the first scholars to repudiate the colorblindness of the law. See Derrick A. Bell, Jr., Race, Racism and American Law (Boston: Little, Brown and Company, 1980).

24 Ian Haney Lopez, White by Law, The Legal Construction of Race (New York: New York University Press, 1996), 9.

25 Michael Omi and Howard Winant, Racial Formation in the United States (New York: Routledge, 1986).

26 George Eaton Simpson, The Negro in the Philadelphia Press (Philadelphia: University of Pennsylvania Press, 1936), 4.

27 Ibid., 105.

28 Ibid., 104.

29 Ibid., 102.

30 Bill Gaskins, “The World According to Life: Racial Stereotyping and American Identity,” Afterimage 21, no. 3 (Summer 1993). See also Mary Alice Sentman, “Black and White: Disparity in Coverage by Life Magazine from 1937 to 1972,” Journalism Quarterly 60, no. 3 (Winter 1983).

31 Harkey, Smell of Burning Crosses, 47.

32 Ibid., 50.

33 Ibid., 51.

34 Ibid., 54.

35 Ibid.

36 Turner Catledge, My Life and The Times (New York: Harper & Row, 1971).

37 Ibid., 39.

38 Ibid., 39–40.

39 Davies, The Press and Race, 271.

40 An original column reprinted in Hodding Carter, Where Main Street Meets the River (New York: Rinehart & Co., 1953), 255.

41 Charles W. Eagles, Jonathan Daniels and Race Relations, The Evolution of a Southern Liberal (Knoxville: The University of Tennessee Press, 1982).

42 Harkey, Smell of Burning Crosses, 52.

43 See, for example, “Dailies’ Cooperation Asked in Solving Negro Problem,” Editor & Publisher, August 4, 1945, 7.

44 Leon Svirsky, ed., Your Newspaper: Blueprint for a Better Press (New York: Macmillan, 1947), 23–24.

45 Stanley Nelson Jr., The Black Press: Soldiers Without Swords (PBS documentary, 1999), DVD.

46 “Race in the News,” New York Times, August 11, 1946, 8E.

47 The Times did revert to its old ways inexplicably on occasion, prompting complaints as late as 1963 when Lena Horne was described as a “negro singer.” Also, see Davies, An Industry in Transition.

48 Davies, The Press and Race, 112.

49 Paul L. Fisher and Ralph L. Lowenstein, Race and the News Media (New York: Praeger, 1967), 10.

50 Natchez Times Publishing v. Dunigan, 221 Miss. 320; 72 So. 2d 681 (1964).

51 The three-fifths compromise is located in Article 1, Section 2, Paragraph 3 of the United States Constitution: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

52 163 U.S. 537 § (1896).

53 Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (New York: Oxford University Press, 1987); See also Jonathan Kahn, “Controlling Identity: Plessy, Privacy and Racial Defamation,” 54 De Paul L. Rev. 755 (Spring 2005).

54 See generally Mark V. Tushnet, Making Civil Rights Law, Thurgood Marshall and the Supreme Court, 1956–1961 (New York: Oxford University Press, 1994); and C. Vann Woodward, The Strange Career of Jim Crow (New York: Oxford University Press, 1974).

55 Courts would apply that racial difference in countless post-Reconstruction cases and provide a legal roadmap for how blacks could be kept in their place. See for example, Williams v. Mississippi (1898), 170 U.S. 213, where the Supreme Court did not find that a literacy test and poll tax were discriminatory; and Virginia v. Rives (1879) 100 U.S. 313, where the court refused to interfere in a state case where no black person had ever served on a jury.

56 Cheryl Harris, “Whiteness as Property,” Harvard Law Review, 106, no. 8 (June 1993): 1707–91.

57 See, for example, Wolfe v. Georgia Railway & Electric Co, 2 Ag. App. 499; 58 S.E. 899, 1907 Ag. App. LEXIS 439, decided by the Georgia Court of Appeals in 1907; May v. Shreveport Traction Co., 127 La. 420; 53 So. 671; 1910 La. LEXIS 838, decided by the Supreme Court of Louisiana in 1910; and Louisville & Nashville Railroad Company v. Ritchel, 148 Ky. 701; 147 S.W. 411; 1912 Ky. LEXIS 521, decided by the Court of Appeals of Kentucky in 1912.

58 Wolfe, 58 S.E., at 899.

59 Ibid., 903.

60 Ibid., 901–903. Though he did not use the word “defamation,” Justice Russell referred to two newspaper cases involving libel and racial misidentification. Those cases, Flood v. News & Courier Co., 71 S.C. 112, 50 S.E. 367, and Upton v. Times Democrat Publishing Co., 104. La. 141, 28 So. 970, which are discussed in this article.

61 May v. Shreveport Traction Co., 127 La. 420; 53 So. 671; 1910 La. LEXIS 838, 672.

62 Ibid.

63 Ibid., 675.

64 Ibid., 673.

65 Louisville & Nashville Railroad Company v. Ritchel, 148 Ky. 701; 147 S.W. 411; 1912 Ky. LEXIS 521.

66 147 S.W., at 413.

67 Upton v. Times-Democrat Publishing Company, 104 La. 141; 28 So. 970; 1900 La. LEXIS 800, 970; Bowen v. Independent Publishing Co., 230 S.C. 509; 96 S.E. 2d 564 (1957). Flood v. News & Courier Co.

68 Express Publishing Co. v. Orsborn, 100 U.S. 303 (1880); Natchez Times Publishing v. Dunigan, 221 Miss. 320; 72 So. 2d 681 (1964).

69 Hargrove v. Oklahoma Press Publishing Co., 130 Okla. 76; 265 P. 635; 1928 Okla. LEXIS 452; Atlanta Journal Co. v. Farmer, 48 Ga. App. 273; 172 S.E. 647; 1934 Ga. App. LEXIS 37.

70 Monks. V. Orange County Independent Corp., 243 A.D. 713; 277 N.Y.S. 992; 1935 N.Y. App. Div. LEXIS 7874; Mitchell v. Tribune Company, 343 Ill. App. 446; 99 N.E.2d 397; 1951 Ill. App. LEXIS 306.

71 104 La. 141; 28 So. 970; 1900 La. LEXIS 800, 970.

72 In the state of Louisiana, the typical governing body of the parish is called the police jury, made up of elected members. In other states, the equivalent would be the county commission.

73 Ibid., 970.

74 Ibid.

75 Ibid., 972.

76 Flood v. News and Courier Company, 71 S.C. 112, 50 S.E. 637. There was also a companion case, Flood v. Evening Post Publishing Company, 71 S.C. 122, 50, 641 (1904).

77 Flood, 71 S.C., 639.

78 The Thirteenth Amendment ended slavery. The Fourteenth gave blacks the same rights as whites. The Fifteenth allowed African Americans to vote.

79 100 U.S. 303 (1880).

80 As cited in Flood, 639.

81 Flood, 71 S.C., 638.

82 Ibid., 640.

83 151 S.W. 574; 1912 Tex. App. LEXIS 690, 575.

84 Ibid., 575.

85 Hargrove v. Oklahoma Press Publishing Co., 130 Okla. 76; 265 P. 635; 1928 Okla. LEXIS 452.

86 Ibid., 637.

87 Gomez v. Daily News Co.

88 “Okay Barkeeper Called ‘Negro’ Asks Damages,” The Afro-American, March 8, 1930.

89 Van Wyck to Spingarn. December 24, 1929. W.E.B. DuBois Papers.

90 Compton v. Nashville Banner, for details on the case see: “No Crime to Call Thief a Negro,” Plaindealer, December 4, 1931, 1.

91 Atlanta Journal Co. v. Farmer, 48 Ga. App. 273; 172 S.E. 647; 1934 Ga. App. LEXIS 37.

92 Ibid., 647.

93 Monks. V. Orange County Independent Corp., 243 A.D. 713; 277 N.Y.S. 992; 1935 N.Y. App. Div. LEXIS 7874.

94 Clearly, more research is needed on this case. Original paper documentation must be obtained from the lower New York courts because only appellate court decisions from this era were reported and therefore unavailable electronically.

95 Mitchell v. Tribune Company, 343 Ill. App. 446; 99 N.E.2d 397; 1951 Ill. App. LEXIS 306.

96 Natchez Times Publishing v. Dunigan, 221 Miss. 320; 72 So 2^nd 681 (1954).

97 Ibid., 324.

98 Ibid.

99 Harris, Whiteness as Property. See also, Robert Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” California Law Review 74 (1986): 691.

100 Natchez Times Publishing v. Dunigan.

101 Bowen v. Independent Publishing Co., 230 S.C. 509; 96 S.E. 2d 564 (1957).

102 Ibid., 565. Among the cases cited as precedent were Upton v. Times-Democrat Publishing Company, 104 La. 141, 28 So. 970; Hargrove v. Oklahoma Press Publishing Company, 130 Okla. 76, 265 P. 635; and Mopsikov v. Cook, 122 Av. 579, 95 S.E. 426.

103 Ibid.

104 Roberts and Klibanoff, The Race Beat.

105 For details on the felony tax evasion case, see Taylor Branch, Parting the Waters, America in the King Years, 1954–1963 (New York: Simon & Schuster, 1988), 277.

106 New York Times, March 29, 1960, 25.

107 Louis G. Forer, A Chilling Effect, The Mounting Threat of Libel and Invasion of Privacy Actions to the First Amendment (New York: W.W. Norton & Company, 1987), 61. See also Clifton O. Lawhorne, Defamation and Public Officials, The Evolving Law of Libel (Carbondale: Southern Illinois University Press, 1971), 230–31.

108 Norman L. Rosenberg, Protecting the Best Men, An Interpretive History of the Law of Libel (Chapel Hill: The University of North Carolina Press, 1986), 243–44. See also Bernard Schwartz, Super Chief, Earl Warren and His Supreme Court – A Judicial Biography (New York: New York University Press, 1983), 538.

109 Anthony Lewis, Make No Law, The Sullivan Case and the First Amendment (New York: Random House), 103.

110 Certiorari to the Supreme Court, available at http://supreme.justia.com/us/376/254/case.html (accessed March 30, 2019).

111 Gertz v. Welch 418 U.S. 323 (1974).

112 Thomason v. Times-Journal, Inc., 190 Ga. Ap.. 601; 379 S.E.2d 551; 1989 Ga. Ap.. LEXIS 381; 16 Media L. Rep. 2200.

113 Ibid., 603.

114 Ibid., 603. The judged cited and quoted directly from Palmore v. Sidoti, 466 U.S. 429 (104 S. Ct. 1879, 80 L. Ed. 2d 421).

115 Johnson v. Staten Island Advance Newspaper Inc., 2004 NY Slip Op 51904U; 13 Misc. 3d 1215A; 824 N.Y.S.2d 755 N.Y. Misc. LEXIS 3113.

116 Ibid., 7.

117 Ibid.

118 Pub. L. No. 88–352, 78 Stat. 241 (1964).

119 42 U.S.C. § 1973.

120 With different results, several people have sued for defamation after falsely being labeled as homosexual. Cases were successful in part because legal sanctions against homosexuals were on the books and negative public opinions of homosexuality were cited successfully as justification. In recent years, courts rejected the claim that being gay is defamatory. See, for example, the 2012 case Yonaty v. Mincolla, 945 N.Y.S. 2d. 774, where a New York appellate court held that an imputation of homosexuality does not constitute defamation per se.

121 Omi and Winant, Racial Formation in the United States, 76.

122 Carol Anderson, White Rage, The Unspoken Truth of Our Racial Divide (New York: Bloomsbury, 2016).

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Aimee Edmondson

Aimee Edmondson was a newspaper reporter for about 12 years before joining the academy. She is a legal historian working at the intersection of First Amendment law, journalism and the long civil rights struggle for African Americans within the United States. She teaches journalism history, media law and data journalism at the E.W. Scripps School of Journalism.