Thursday, January 23, 2014
Paul Horwitz, University of Alabama School of Law, is publishing Institutional Actors in New York Times v. Sullivan in the Georgia Law Review (forthcoming). Here is the abstract.
This Article was written for a symposium held at the University of Georgia School of Law marking the fiftieth anniversary of New York Times v. Sullivan. It has two primary purposes.
First, it examines this landmark First Amendment decision through the lens of the institutional actors that were prominent in the case. Most academic treatments of Sullivan, and of the First Amendment generally, focus substantially on the state and/or public officials. This Article turns its focus elsewhere, to three other key institutions in the case: the press, social movements (in this case, the civil rights movement), and courts -- both the state courts and the Supreme Court itself. That institutional focus helps revive certain aspects of the case that are easily neglected over time; helps make clear why the Supreme Court was willing to act so aggressively in this case, both in constitutionalizing defamation law and in insisting on independent appellate review of the facts; and reminds us that the decision was not just about mistrust of government, but was also about preserving the vital role that non-state actors such as the New York Times or the civil rights movement play in monitoring and checking government and contributing to public discourse and social change.
Second, it offers some exploratory thoughts on why, as I think is true, New York Times v. Sullivan has lost some of its luster and canonical status in the intervening years. Sullivan is still obviously a hugely important case, and it has always been subject to criticism. Still, it was once highly and widely celebrated. Now, even among those who are not especially critical of the decision, it is more likely to be met with a shrug than with praise. It is not an object of ongoing political contestation like other landmark cases, such as Brown v. Board of Education; it is simply there. I suggest that Sullivan has undergone a sort of bifurcation that has diminished its canonical status. On the one hand, its broad pronouncements have largely been assimilated into First Amendment doctrine, so that citations to the case are almost more decorative than substantial. On the other, its specific pronouncements concerning defamation law have been submerged in the complex details of defamation law itself, which has returned to the preserve of specialists. To these factors, we can add two others: the direction of First Amendment law itself, with its profusion of fairly schematic anti-discrimination rules; and, relatedly, the general focus in First Amendment doctrine on the government as the central actor, and the relative lack of interest in the specific speakers, institutional or individual, that come before the courts.
Taken together, these factors have made New York Times v. Sullivan a case that continues to be cited for general principles, but that fails to capture the attention and imagination of either constitutional law experts or the public as it once did. A focus on the press, the civil rights movement, and the courts as institutional actors in Sullivan helps remind us of the high-stakes nature of the case at the time it was decided, and the past and present importance of certain institutional actors in our social structure.Download the article from SSRN at the link.