At Law & Liberty, Mark Pulliam: Inventing Modern Libel Law (reviewing Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan by Samantha Barbas). From the core of the discussion:
Sullivan is celebrated in liberal circles as a landmark Warren Court precedent protecting free speech and taking sides in the struggle for civil rights, but is the decision sound as constitutional law? Many prominent critics, including law professor Richard Epstein, Reynolds, the late D.C. Circuit Judge Laurence Silberman, Justices Clarence Thomas and Neil Gorsuch, and various conservative pundits and scholars, claim that Sullivan conferred on the media an unwarranted immunity from liability for publishing false statements, and accordingly has emboldened the fourth estate to become an increasingly aggressive—and partisan—combatant in the culture war.
The critics make a powerful case. To begin with, Sullivan was not, and did not pretend to be, an originalist decision. Written in 1964 during the heyday of Warren Court activism—the era of the “living Constitution”—Sullivan predated the ascendency of originalism decades later. Sullivan was a radical decision in several respects. It nullified the libel laws of all 50 states, which were in place at the Founding, and for “public officials” replaced the common law of strict liability for defamatory statements—a legal doctrine Barbas describes as “ancient,” whose roots date to the Middle Ages—with a legal standard drawn practically verbatim from the brief filed by the New York Times’ lead appellate lawyer, Columbia law professor Herbert Wechsler (who, ironically, during a WWII stint working for the DOJ, argued the infamous Korematsu decision before the Supreme Court). As Barbas observes, “An area of law that had been left up to the states was nationalized, with a constitutional floor established.”
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A growing chorus of Sullivan critics, led most prominently by Justice Clarence Thomas, urges that the decision be overturned. The “actual malice” standard has no basis in the original understanding of the First Amendment. Thomas’s powerful concurring opinion in McKee v. Cosby (2019) made the case for overruling Sullivan as an extra-constitutional usurpation of state law that allows reputation-damaging false statements to go unremedied. In 2021, the late Judge Laurence Silberman of the D.C. Circuit wrote a passionate dissenting opinion in Tah v. Global Witness, citing Justice Thomas and urging the Supreme Court to overrule Sullivan, which he cheekily described as “policy-driven decision masquerading as constitutional law.” Thomas, joined separately by Neil Gorsuch, continued his originalist critique of Sullivan in a 2021 dissent from the Court’s denial of certiorari in Berisha v. Lawson.
Posted at 6:29 AM