At Law & Liberty, a forum on New York Times v. Sullivan, headlined by Carson Holloway (Claremont Institute): The Case Against New York Times v. Sullivan. From the introduction:
… [A] principled commitment to text, original meaning, and history should lead today’s justices to reconsider the “actual malice” doctrine by which the Supreme Court in the 1960s and 1970s revised the traditional law of libel and the long-established understanding of the First Amendment’s protection for the “freedom of the press.” On the traditional view, libel—or the publication of defamatory falsehoods—was no part of the freedom of the press. It was rather an abuse thought to be outside the scope of that freedom. Accordingly, suits for libel raised no constitutional problems at all, even when the plaintiffs were elected officials or candidates for public office.
In 1964, the modern Court set this tradition aside and substituted a new, two-tier system of libel law, establishing special standards for cases in which public officials (and, later, “public figures”) sued to recover damages for injuries to reputation. Unlike ordinary litigants, the Court announced, public persons, in order to prevail in a libel suit, would have to show not only that they had been victimized by publication of a defamatory falsehood, but also that the publisher had acted with “actual malice”—understood as knowledge of the falsity of the published claim, or at least “reckless disregard” for whether it was true or false. These standards have no basis in the text, original meaning, or history of the Constitution and are a product of judicial activism in the spirit of Roe. The contemporary Court owes it to the nation to reconsider them and return us to traditional principles in this area of constitutional jurisprudence.
Plus these responses:
Angel Eduardo, What the First Amendment Is For
Glenn Reynolds, Whither Sullivan?
John McGinnis, Originalism and Sullivan
And a reply from Carson Holloway: Originalism, Libel, and the First Amendment.
Posted at 6:05 AM