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Written by John R. Vile, published on January 14, 2024 , last updated on June 7, 2024

Lyndon B. Johnson

Lyndon B. Johnson was the nation's 36th president. He served during a tumultuous time of protests over the Vietnam War. Several Supreme Court decisions were delivered related to free speech during Johnson's presidency. The court also introduced the standard of actual malice in libel cases by public officials. Johnson also signed the Freedom of Information Act of 1966. (Official portrait of Lyndon B. Johnson)

Lyndon Baines Johnson (1908-1973) was one of the most activist presidents of the 20th century. Born and raised in Texas, Johnson attended Southwest Texas State College and, after a brief time of teaching and military service, spent most of his life in elective office.

He served as a member of the U.S. House of Representatives from Texas from 1937 to 1949; as a U.S. senator from 1949 to 1961, during which time he served both as Senate Minority and as Senate Majority Leader; as vice president under John F. Kennedy, who had largely chosen him to provide geographical balance to the ticket, from 1961 to 1963; and as U.S. president from 1963 to 1969.

Johnson became the nation's 36th president after the tragic assassination of President John F. Kennedy and evoked Kennedy’s legacy in successfully pushing for the adoption of civil right legislation. This included the Civil Rights Act of 1964, which limited discrimination in places of public accommodation; the Voting Rights Act of 1965, which targeted states with historically low voting registration and turnout; and the Civil Rights Act of 1968, which dealt with discrimination in housing.

Ironically, Johnson was sometimes at odds with civil rights leader Dr. Martin Luther King Jr., albeit largely because of King’s opposition to the Vietnam War. Johnson turned a blind eye to harassment of King by the Federal Bureau of Investigation (Eig and Theoharis 2023).

As president, Johnson announced a liberal agenda that he called the Great Society. It sought increased federal aid for education; called for a “war on poverty,” especially in the Appalachia region of Alabama to Pennsylvania; introduced Medicare and Medicaid to provide health care for the retired and disabled; and proposed other social programs.

Some of these programs were derailed by increased expenditures for the Vietnam War, which was fought to prevent North Vietnam from imposing communism on the South. In 1964, Johnson persuaded Congress to adopt the Gulf of Tonkin Resolution, which gave him wide authority to conduct this conflict, which was not otherwise officially declared. Using this authority, Johnson significantly increased the number of U.S. troops in Vietnam and the number of targets bombed in the North without achieving victory. Johnson’s hope for both “guns and butter” ultimately faltered as the nation was increasingly split by student protests over the war and the draft. Although Johnson had won by a landslide in the 1964 presidential election over Arizona Senator Barry Goldwater and remained eligible to run for reelection in 1968, he chose not to do so in an election in which Richard M. Nixon defeated Johnson’s vice-president Hubert H. Humphrey.

First Amendment issues

Johnson Amendment promoted separation of church and state

Long before becoming president, Johnson successfully sponsored an amendment to U.S. tax laws, since known as the Johnson Amendment. It prohibits 501 (c)(3) nonprofit organizations from engaging in political activity. Designed to promote the separation of church and state, the amendment is still controversial because it limits the free speech rights of such entities.

Decisions by the U.S. Supreme Court in Engel v. Vitale (1962) and Abington v. Schempp (1963) had limited public prayer and devotional exercises in public schools on the basis of the establishment clause of the First Amendment. Other decisions had limited governmental aid to parochial schools. In pushing for his expansive programs of federal aid to schools, Johnson opposed direct federal aid to private parochial schools but used the “child benefit theory” to justify federal spending for books and other materials that went directly to students rather than to their schools (Billington 1987).

In its decision in Epperson v. Arkansas (1968), the Supreme Court struck down a law that made it a crime to teach evolution in public schools. The year before, the Supreme Court had, in Keyishian v. Board of Regents (1967), ruled that a New York law requiring college professors to sign an oath saying that they were not communists was unconstitutional.

Supreme Court establishes ‘actual malice’ test for libel cases

One of the Supreme Court’s most influential decisions on libel occurred during Johnson’s presidency in 1964, when, in New York Times v. Sullivan, it held that to win libel suits, public figures must show “actual malice.” This required a difficult showing that journalists had published information that they knew to be false or with reckless disregard for its truth or falsity. In the immediate case, the Supreme Court ruled that a Montgomery, Alabama, police chief could not collect damages for an advertisement by civil rights leaders in The New York Times that contained some factual inaccuracies.

In Time, Inc. v. Hill (1967), the court extended the actual malice standard to libel cases involving false light invasions of privacy.

Johnson signed first Freedom of Information Act

In signing the Freedom of Information Act of 1966, about which he had expressed some reservations, Johnson observed that “This legislation springs from one of our most essential principles: A democracy works best when the people have all the information that the security of the Nation permits.”

He further noted that “At the same time, the welfare of the Nation or the rights of individuals may require that some documents not be available.” He argued that the law at issue had properly struck an appropriate balance between these two issues.

In 1967, Johnson appointed the President’s Task Force on Communications Policy, which was designed to make recommendations about emerging technologies. The resulting Rostow Report influenced President Richard Nixon to create the White House Office of Telecommunications Policy, which subsequently became the National Telecommunications and Information Administration (NTIA).

In remarks before the National Association of Broadcasters on April 1, 1968, Johnson, who had faced media criticism for a “credibility gap” between his rhetoric and his actions, raised concerns over the power that broadcasters wielded. In sentiments that will be familiar to fans of Spider Man, Johnson reminded the audience that “where there is great power, there must also be great responsibility.” He further noted that “The defense of our media is your responsibility. Government cannot and must not and never will—as long as I have anything to do about it—intervene in that role.”

Vietnam War led to cases about burning draft cards, student speech

The Students for a Democratic Society and other groups strongly opposed the Vietnam War. One way of protesting the war in Vietnam was for protestors to burn their draft cards. In United States v. O’Brien (1968), the U.S. Supreme Court upheld a conviction for draft-card burning and determined that the government could regulate such symbolic speech, largely because of its potential effect on national security. However, the high court also upheld the right of public-school students to wear black armbands in symbolic protest against the war in in Tinker v. Des Moines Independent Community School District (1969).

In 1966, an 18-year-old Black protestor was arrested for threatening the president, a federal crime, at an anti-war rally when he said: “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. . . .They are not going to make me kill my black brothers.” However, in a landmark case about what constitutes a “true threat,” the Supreme Court in 1969 ruled in Watts v. United States that the young man’s comment was hyperbole and protected by the First Amendment.

Johnson appoints Abe Fortas, Thurgood Marshall to Supreme Court

As president, Johnson nominated his good friend and advisor Abe Fortas to the Supreme Court but did not succeed in his efforts to elevate him to the chief justiceship after the resignation of Earl Warren.

Fortas authored the majority decision in the Tinker case. When Nixon became president, he appointed Warren Burger, who was much more conservative than either Warren or Fortas, as chief justice.

Johnson also successfully nominated Thurgood Marshall, a prominent civil rights attorney, as the first African American ever to be appointed to that body. Like Fortas, Marshall was a strong supporter of broad First Amendment rights.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. This article was published on Jan. 14, 2024.

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