Carlo A. Pedrioli, Barry University, has published New York Times v. Sullivan and the Rhetorics of Race: A Look at the Briefs, Oral Arguments, and Opinions at 7 Georgetown Journal of Law and Modern Critical Race Perspectives 109 (2015). Here is the abstract.
Given the strife of the Civil Rights Movement that surrounded the case, this article looks back at the use of race in New York Times v. Sullivan. Specifically, the article examines how the advocates, led by Herbert Wechsler for the Times, I. H. Wachtel, William Rogers, and Samuel Pierce for the four ministers, and Roland Nachman for Sullivan, dealt with race in their rhetorics to the Court, both in their merits briefs and their oral arguments, and also how the justices used race in their opinions. Although Justice William Brennan did not explicitly focus on race in his opinion for the Court, the racial context that framed the case was hard to ignore, and Brennan, in ultimately resolving the case without remanding it to the Alabama courts for further proceedings, did not completely ignore race. Additionally, Justice Hugo Black, a native of Alabama, discussed race explicitly and at more length in his concurring opinion, and Justice Arthur Goldberg briefly mentioned race. Overall, the article aims to provide a better understanding of some of the rhetorical choices that may be available to legal advocates and members of the bench regarding complex topics like race.Download the article from SSRN at the link.