Tuesday, September 28, 2021
Matthew Schafter, Fordham University School of Law, is publishing In Defense: New York Times v. Sullivan in volume 82 of the Louisiana Law Review. Here is the abstract.
New York Times v. Sullivan, the landmark Supreme Court case that helped shape our understanding of the First Amendment, is under attack. Twice now in opinions accompanying orders relating to certiorari, Clarence Thomas and, more recently, Neil Gorsuch have drawn into doubt the rule recognized in that case: that public official libel plaintiffs must plead and ultimately prove that a defendant published knowing the defamatory statement was false or with a high degree of awareness that it probably was. They either want to throw this “actual malice” rule out altogether or reexamine its implications and, potentially, prune it back. While some of these attacks are focused on more pragmatic concerns, a central attack, shared by both Thomas and Gorsuch, is that Sullivan is ahistorical and thus divorced from an original understanding of the First Amendment at the time of the Founding or the Reconstruction. Many commentators have seemingly accepted this assessment uncritically. This article challenges that view. It marshals substantial historical evidence that rebuts several of the justices’ specific historical arguments. More fundamentally though, through marshaling this evidence, it demonstrates that far from adopting the English common law of libel in the early United States, the Founders, federal and state legislatures, courts, and parties in litigation adopted a uniquely American understanding of freedom of the press - one where the severe rules of the English common law of libel were rejected so that citizens in a newly formed republican government could freely debate the conduct of those with power over the affairs of society.
Download the article from SSRN at the link.