for the Court pointed out that it had first decided in Gitlow v. New York, 268 U.S. 652 (1925), that the constitutional guarantees of the First Amendment applied to all the States through the Due Process Clause of the Fourteenth Amendment. He also rejected Sullivan's claim that no state action had taken place, stating that the action of the Alabama courts in applying Alabama libel law constituted state action.
Sullivan maintained that the First Amendment was inapplicable because the speech in question was contained in a commercial advertisement which was beyond the scope of the First Amendment. Brennan did not deal with the question of whether the constitutional protection afforded commercial expression under the First Amendment was as broad as that extended to other forms of speech; however, he pointed out that the advertisement in question contained expressions of citizens' views on public issues which clearly fell within the type of speech which the First Amendment was intended to protect. At p. 267 he said: "if the allegedly libelous statements would otherwise be constitutionally protected from the present judgment, they do not forfeit that protection because they were published in . . . a paid advertisement."
At p. 269 Brennan also rejected the claim that libelous speech was never protected under the First Amendment: "libel can claim no talismanic immunity from constitutional limitations." Brennan and Justice Arthur Goldberg in his concurring opinion pointed out that this aspect of the case was a matter of first impression inasmuch as previous decisions of the Court limiting the application of the First Amendment to libel had not involved speech which criticized the conduct of public officials.
Brennan recited previous decisions of the Court which emphasized "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open" (p. 270). He said that historically dat...