Believe it or not, Roy Cohn, the slimy lawyer who unintentionally helped make “McCarthyism” American for “smear,” once sued Martin Luther King Jr. … for libel.
King died with the suit unresolved. Just three weeks after his assassination, Gilligan v. King furthered the liberalization of our libel standards Donald Trump is now attacking.
Of course, according to mainstream media-mirroring America, a bout pitting America’s smearmeister general, “Citizen Cohn,” against America’s civil rights martyr Dr. King, is as morally lopsided as Donald Trump running against, say, Oprah Winfrey, for president. Yet fair judges took Cohn’s complaint seriously.
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It began with a heartbreakingly familiar American ritual—a white cop shooting a Black kid, who may or may not have been armed. The historian Michael Flamm, in his authoritative, compelling look at the Harlem riots that followed in that sizzling summer of ’64, writes reasonably, that “What happened on July 16 at 9:20 am in front of 215 East 76th street was unclear and contested, both then and now.”
What is clear is that a white, off-duty New York City policeman, Thomas R. Gilligan, while running an errand, heard a “commotion,” ran out, and ended up shooting a 15-year-old African-American, James Powell. Gilligan and the white adult witnesses on 76th Street claimed Powell slashed at Gilligan with a knife—cutting his hand—and that Gilligan identified himself as a police officer. Most of the kids on the street, who had attended summer school with Powell, saw no knife and heard no identification.
“This is worse than Mississippi,” one young woman shouted, as three hundred furious students started trashing Yorkville. The violence spread to Harlem, then to Bedford-Stuyvesant. Six nights later, one rioter was dead, 118 were injured, 465 had been arrested. Looting caused a million dollars’ worth of damage.
Legally, Gilligan was exonerated. The Grand Jury refused to indict. The Manhattan District Attorney’s detailed 14-page report explained why—with the DA brandishing Powell’s knife at a press conference. Morally, the Congress of Racial Equality, CORE, nailed it. It should have been a “minor, indeed comic street incident,” with a highly decorated, 6-foot-2, 200-pound World War II vet and cop on the job for 17 years subduing a 122-pound teen with a three-and-a-half-inch knife. CORE’s counter-report on the incident concluded: “Policemen should not shoot boys half their size.”
Nerves were already raw that summer—even before temperatures hit the 90s during New York’s week-long riot. On June 21, racists murdered three civil rights activists from Mississippi’s Freedom Summer—James Chaney, Andrew Goodman, and Michael Schwerner. Officials would only find their corpses on Aug. 4. On June 28, the militant Malcolm X founded the Organization of Afro-American Unity, while asking, “who ever heard of angry revolutionists all harmonizing ‘We shall overcome… suum day’ while tripping and swaying along arm-in-arm with the very people they were supposed to be angrily revolting against?”
Yet on July 2, Lyndon Johnson signed the transformational Civil Rights Act of 1964. Meanwhile, in San Francisco, the same day James Powell died, the conservative Barry Goldwater accepted the Republican presidential nomination, declaring: “Tonight there is violence in our streets, corruption in our highest offices, aimlessness among our youth, anxiety among our elders and there is a virtual despair among the many who look beyond material success for the inner meaning of their lives.”
Flamm notes that beyond inaugurating the 1960s’ “long hot summers,” the Harlem riots, the civil rights activism, the Goldwater nomination, and the great American crime wave, would nationalize local crime as a hot political issue. The “new racial dynamic… would drive a wedge between the civil rights movement and many white liberals… The image of the Black rioter now joined the symbol of the Black criminal, which had deep roots in American history.”
Amid such tension, and given New York’s centrality in American consciousness, an all-star team of civil rights activists mobilized. Martin Luther King of the Southern Christian Leadership Conference and James Farmer of CORE joined local activists including the great Harlem rent striker Jesse Gray, and William Epton of the more obscure—and radical—Harlem Progressive Movement. They bombarded Gilligan with their eloquence, creativity, and wrath. Some alleged that Gilligan ended up in a mental hospital. Others distributed three thousand copies of a poster proclaiming: “WANTED FOR MURDER,” Gilligan was pictured in uniform above the contemptuous label: GILLIGAN, THE COP.
It’s ironic that King was sued for slander. While he wanted Gilligan suspended, he came to New York on a “peace misson” championing non-violence. King felt caught. Extremists like his eventual co-defendant in the slander suit, William Epton, a “Burn Baby Burn” Maoist, were shouting: “We’re going to have to kill a lot of cops, a lot of the judges, and we’ll have to go up against their army.” And many Harlem leaders resented importing this outsider from Atlanta. King would say, characteristically: “I call upon all Negro and white citizens of goodwill to continue to struggle unrelentingly but nonviolently against the racial and economic oppression that face our country.” The Harlem Congressman Adam Clayton Powell, who said he started agitation for equality “before Martin Luther King was in diapers,” snapped: “No leader outside of Harlem should come to this town and tell us what to do.”
Beyond his usual Gandhi-esque approach, King feared that Black violence would get Goldwater elected. And five months before he won the Nobel Peace Prize—and four years before his assassination—he was not yet considered a saintly, nonpartisan figure. Allegations that he was a Communist hounded him. Meanwhile, Roy Cohn’s occasional cross-dressing playmate, the FBI Director J. Edgar Hoover, was trying hard to crush King.
Still, Gilligan—represented by Roy Cohn of Saxe, Bacon & Bolan—lumped King and Farmer with Epton, Gray, and the Harlem Progressive Movement. By the time he was 27 in 1954, Cohn was nationally famous and broadly loathed as head hatchet-man and chief counsel to Sen. Joseph R. McCarthy’s anti-Communist witch-hunt. In private practice for the next three decades, Cohn continued tarnishing his reputation. Even his devoted client Donald Trump would tell Vanity Fair's Marie Brenner: “All I can tell you is he’s been vicious to others in his protection of me. He’s a genius. He’s a lousy lawyer, but he’s a genius.”
When he died in 1986, Cohn was disbarred, owed $3.18 million in back taxes and had experience as defense lawyer and defendant, having been “tried and acquitted three times in Federal court on charges ranging from conspiracy to bribery to fraud,” The New York Times reported.
Still, Cohn’s bullying made him a formidable lawyer. “My scare value is high,” he boasted. “My area is controversy. My tough front is my biggest asset. I don’t write polite letters. I don’t like to plea-bargain. I like to fight.”
Cohn picked a fight with Martin Luther King and his allies. “The complaint alleges plaintiff enjoyed an outstanding and excellent reputation and good character,” the court in Gilligan v. King et al. summarized; “that defendants since in or about July, 1964, conspired and maliciously and willfully participated in a plan and course of action designed to defame and injure the plaintiff in his good name and reputation, in his profession as a policeman; to destroy his income and livelihood and to remove plaintiff as a police officer of the New York City Police Department…”
The lawyers defending King and company wanted the case dismissed. They argued that, in another case involving King peripherally, New York Times Co. v. Sullivan (1964) the Supreme Court so protected free speech, it made it extremely difficult for “public officials” to claim they were libeled. Cohn and company countered by calling police officers low-level public servants not public officials, limiting Sullivan to politicians who entered politics knowing it gets personal—and ugly.
In April, 1968, Cohn won but lost. The New York Appellate court greenlighted Gilligan’s case, allowing a police officer who felt slandered to pursue a claim. This landmark case determined, however, that “the occupant of a governmental position, even of a minor nature, is a public official.”
As a “public official,” Gilligan faced the new, tough, four-year-old “actual malice” standard the Supreme Court established in Sullivan. The cop would have to prove that King and his colleagues knowingly lied when accusing Gilligan. That was a factual matter for a jury to decide. Thus the green light—but with flashing amber warnings about Gilligan’s chances of victory.
After 1968, this trial’s trail grows cold. Gilligan v. King disappears from public records, leaving historians with a mystery: Did the defendants settle confidentially? Did the plaintiffs drop the suit?
Consider this: Roy Cohn lived to win. When The New York Times ran its April 26, 1968, story, declaring “Gilligan Upheld on Right to Sue Those Who Called Him a Killer,” his best move would have been to advise his client to declare victory publicly, then drop the case privately, but secretly. Cohn the street-fighter wouldn’t give his enemies the satisfaction of surrendering, preferring to let this threat linger—maybe even triggering occasional sleepless nights.
In 1968, Black people were 16 times more likely to be shot by cops than white people—and three times more likely to be shot then by cops, than now. Would any lawyer want to try convincing a jury that a civil rights leader, mourning yet another under-armed 15-year-old Black kid killed, didn’t think Black lives matter and wasn’t sincere in yelling “MURDERER”—in 1968 or 2018?
FURTHER READING
Michael Flamm, In the Heat of the Summer: The New York Riots of 1964 and the War on Crime (2016). Authoritative, insightful, and compelling look at the Harlem Riots—and their influence nationally, historically.
Nicholas Von Hoffman, Citizen Cohen (1988). Colorful account of Roy Cohn’s crazy, perverse life.
Taylor Branch, Pillar of Fire: America in the King Years, 1963-1965 (1998). This majestic three-volume classic is a rare King biography that mentions Cohn’s slander suit—albeit fleetingly.
