Actual Malice: The Bit That Justice Thomas Left Out

The Supreme Court did not, in 1964, create a fundamental free speech protection out of thin air as Justice Thomas has argued. But will Thomas’ colleagues give him a chance to convince them it did?

Matthew Schafer
24 min readJan 27, 2021
Four votes to put a case reconsidering New York Times v. Sullivan in front of the Court?

This is the sixth installment in an ongoing multi-part series On Freedom Of Press In The United States; each installment can stand alone.

#1: The Attack on N.Y. Times v. Sullivan

#2: Justice Thomas and the First Fake News Statute

#3: A Republic, If You Can Keep It

#4: William Blackstone Is The Most Powerful Person You’ve Never Heard Of

#5: Originalism and a Constitutional Right to Your Opinions

#6: Actual Malice: The Bit That Justice Thomas Left Out

Justice Clarence Thomas has called on the Supreme Court to overrule New York Times v. Sullivan — the case that occasioned “dancing in the streets.” Specifically, he has asked his colleagues to reconsider the “actual malice” rule recognized in Sullivan.

That rule requires public official plaintiffs to plead, and ultimately to prove, that defendants knew a defamatory allegation was false or were on high alert that it probably was.

This requirement, courts have observed, is a “daunting” one. Some have called it “impossible.” Whatever it is, for the last fifty-six years, it has saved countless news organizations from the financial ruin of defamation lawsuits brought by thin-skinned public officials.

So why reconsider a rule that has defined freedom of the press in modern America?

Well, according to Thomas, “The constitutional libel rules adopted by the Court in Sullivan and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law.”

In simple terms, the actual malice rule, he says, is both ahistorical and non- constitutional. It fails the originalism test— the idea that the Constitution should be interpreted as the Framers or the Reconstruction Congresses would have understood it at the time of the Founding or the adoption of the Fourteenth Amendment.

Ten years ago, there was little reason to take Thomas seriously. He didn’t have the four votes he needed for the Court to hear such a case. Even if he did, there was no way to get five votes to overrule it. But times have changed.

For one, Justice Amy Coney Barrett refused to answer Senator Amy Klobuchar’s question as to whether Barrett agreed with Sullivan. While there were some “super-precedents” that could not be overruled, Sullivan was not one of them: “I can’t really express a view on either New York Times v. Sullivan or Justice Thomas’s critique.”

And, while Justice Brett Kavanaugh previously endorsed Sullivan, we don’t know where he stands today. In light of his outlandish pique of sanctimony at his confirmation, perhaps his affection for the case has waned. He did, after all, chastise the media “circus.”

Thomas might also find support from his liberal colleagues too. Justice Elena Kagan, as an academic, expressed doubt about Sullivan. And she later explained during her confirmation, “The Framers of the Constitution did not understand the First Amendment as extending to libelous speech.” Citing Sullivan, she added, the Court nevertheless has.

This series is in defense of Sullivan. So far, we’ve drawn into question Thomas’ own evidence purporting to show that history is against Sullivan. We’ve also drawn into question whether originalism, under Thomas’ own understanding of it, is an appropriate interpretative device to employ to understand the First Amendment.

Here, rather than challenge Thomas’ evidence, we marshal our own: the historical record relating to actual malice. There are two parts to this attack:

  • First, the historical evidence for the actual malice rule adopted by the Sullivan Court.
  • Second, the historical evidence that the Founders and Reconstruction Congresses intended, by the First or Fourteenth Amendments, to place limits on state libel law.

For the time being, we tackle the first part, leaving the second for another day. A review of the historical record, laid out below, demonstrates, contrary to Thomas’ argument, that the Sullivan rule did not “break sharply” from the common law. On the contrary, there are at least two strands of case law, reaching back generations, which show that the question of actual malice is nearly as old as the country itself. (The cases discussed below are catalogued in this spreadsheet.)

One Branch of the Family Tree: A Lack Of Actual Malice As Mitigating Evidence At Common Law

Making an allegation without actual malice is another way to describe someone who believes the allegation to be true, but is ultimately mistaken. In Sullivan, the Supreme Court ruled that, when it comes to defamatory allegations about public officials, a lack of actual malice so reduced the level of fault relative to the societal benefit of that speech that it barred recovery.

But the Sullivan Court was not the first — not even close — to consider the impact of a lack of fault in a defamation case. In fact, for generations before it, and into the eighteenth century, courts found that a lack of evidence of fault was relevant in assessing the extent of damages at common law. The first was an English case from 1797. That is where this story begins.

Knobell v. Fuller

The case was Knobell v. Fuller. The defendant in that case was a news organization: The Morning Post, a conservative daily. The alleged defamation was an allegation that Knobell, along with a co-conspirator, had swindled money from friends and family of felons in exchange for securing pardons.

Chief Justice James Eyre, the judge in Knobell v. Fuller

The co-conspirator was charged for the crime, but Knobell was not. While the newspaper could not muster proof that the allegations against Knobell were true, it nevertheless sought to offer as mitigating evidence that there were “strong grounds of suspicion against” Knobell too.

As defense counsel explained, “they might prove facts which showed there was cause of suspicion, and therefore proved that the defendants were not induced to publish this paper by reason of malice against the plaintiff.”

Instead, the evidence would show they published “for the purpose of conveying information to the public, this being a concern of a public nature.” This, counsel argued, should reduce the damages — even though it could not absolve the paper of guilt altogether.

Chief Judge Eyre agreed with the newspaper. He admitted the evidence and allowed defense counsel to call two witnesses to demonstrate that Knobell was implicated in the scheme. The jury found in favor of the plaintiff and awarded him 200 shillings. While the press lost that day, Knobell v. Fuller put into play a journalist’s intent in publishing the news.

Kennedy v. Gregory

By 1803, Knobell found its way across the Atlantic. The first American case appearing to apply it was Kennedy v. Gregory in the Supreme Court of Pennsylvania.

Like any good early libel case in the United States, the allegation was that plaintiff was a drunk. This was especially problematic because Mr. Kennedy was a school master. At trial, the defendant attempted to offer evidence that he didn’t make up the charge. Instead, he had been told by another that Kennedy had a reputation for drinking. The court didn’t permit the evidence, however, and the jury found in favor of Kennedy.

Chief justice William Tilghman, an early proponent for considering subjective intent in defamation cases.

The verdict did not survive the appeal though. Rather, two of the three justices found that the evidence of Kennedy’s reputation should have been admitted: “It was competent to the defendant to show by [a witness], that [the witness] had said [Kennedy has a reputation for drinking] to [the defendant], to take off all presumption that the charge was a fabrication of his own.” In short, there was a difference in fault (and thus the scope of damages) as between a wholly fabricated charge and a charge made in reliance on another source, even if ultimately wrong.

Courts in Pennsylvania would repeatedly consider the same issue. In 1806, a court found that the defendant should be allowed to “give evidence of circumstances which had induced a suspicion of felony” by the plaintiff. And, in 1808, the court agreed with William Duane, the publisher of the Aurora, who had argued for the application of the principle: “Can it be, that like damages should be given against two defendants, one of whom received his information from such sources as were entitled to a certain degree of credit, while the other devised it by his own wicked imagination? I think it cannot. Such evidence certainly goes to the degree of malice.”

Larned v. Bluffinton

Nor was the principle limited to Pennsylvania. In Larned v. Bluffinton, the plaintiff, Samuel Larned, was not a horse thief, not really. But, after Larned left with a horse he co-owned with Samuel Bluffinton, without Bluffinton’s permission, Bluffinton had Larned arrested for theft. He said of his partner, “He hath stolen my horses out of my stable, and if I should proceed to the extremity of the law, it would be horse-theft.”

At trial in 1807, Bluffinton argued that he should be allowed to submit evidence of his belief in the charge to mitigate damages. The trial court, however, refused to hear the evidence. As in Kennedy, the ruling was reversed on appeal: “When, through the fault of the plaintiff, the defendant, as well at the time of speaking the words . . . had good cause to believe they were true, it appears reasonable that the jury should take into consideration this misconduct of the plaintiff to mitigate the damages.”

To be sure, the rule was not universally accepted (for reasons unrelated to its merit). But nevertheless it was accepted in a number of States:

  • Buford v. McLuny (S.C. 1818): “I apprehend there can be no doubt. A person may prove, in mitigation of damages, such facts and circumstances as show a ground of suspicion.”
  • Stow v. Converse (Conn. 1821): “The rule is now well settled, that any facts and circumstances, arising from the misconduct of the plaintiff . . . , which occasioned the speaking of the words, or afforded ground of suspicion of their truth, may be proved in mitigation of damages.”
  • Wilson v. Apple (Ohio 1827): “Any circumstance, therefore, tending to show that the defendant spoke the words under a mistake, or that he had some reason to believe they were true, is entitled to con­sideration, and is proper evidence to be received in mitigation.”
  • Root v. King & Verplanck (N.Y. 1827): “Had such evidence been offered . . . with a view to show the court and jury that there was no malice in the defendants, because in reality they only repeated what every one else did, and that the plaintiff’s conduct led them to believe it was the truth, a very different question would have been presented.”
  • Gilman v. Lowell (N.Y. 1832): Granting a new trial to allow defendant to submit evidence showing he “really believed that he had been deceived by the plaintiff.”
  • Beehler v. Steever (Pa. 1837): “If a person truly believes, although mistaken in point of fact, that he has a good cause, and in a moment of irritation and passion makes a criminal charge against another, he is surely not as culpable as where the accusation is made without any reason.”
  • Sanders v. Johnson (Ind. 1841): “There may, perhaps . . . be instances in which . . . the misconduct of the plaintiff may have been so glaring as to give the defendant reason to believe that the charge made by him, . . . in which case, it may be proper for the jury to consider the circumstances developed on the trial in mitigation of the damages.”

Of course, offering evidence of a lack of actual malice to mitigate damages is not the same rule as the actual malice rule that Thomas today attacks. For one, it was more expansive insofar as it applied outside of cases where a public official was the plaintiff. For another, a lack of actual malice acts as a complete bar to recovery, while these early cases concerned only mitigating damages.

But the thrust of this early doctrine is remarkably similar to that of today’s actual malice rule. As the court in Knobell recognized in 1797, there is a difference between a fabricated charge and a charge stemming from evidencing causing a suspicion for the charge. And, as the law developed, this idea, paired with a recognition of the social importance of some statements, would transform into a privilege closer to the one we know today.

Chief Justice Mansfield

Another Branch of the Family Tree: A Lack Of Actual Malice As A Privilege At Common Law

Weatherston v. Hawkins

One day in 1785, Hawkins sent his servant, Weatherston, to buy a few books at the local market. Hawkins, “more curious” than he sometimes was, looked over the servant’s account, “article by article, and in one, a book [he] well knew the price of, [he] found [the servant] had charged [him] one shilling more than it cost, and that shilling he kept in his pocket.” Hawkins then relayed this in a letter to an acquaintance considering hiring Weatherston.

Weatherston brought a defamation lawsuit based on the allegations in the letter. At trial, in his defense, Hawkins did not attempt to show that the charge was true. (Evidently, he did not know the price of the book, after all.) The jury found in favor of Weatherston.

On appeal, Chief Justice Mansfield, having heard from Weatherston’s counsel, did not even let defendant get a word in. Instead, he said, “I have held more than once that an action will not lie by a servant against his former master for words spoken by him in giving a character of the servant. . . .” Based on this principle, he then found the allegations privileged.

Weatherston is one of those cases whose importance has nothing to do with the underlying facts of the case. Rather, its importance is in the principle it solidified and the analogies that could be drawn from it. While neither Sullivan nor the actual malice rule have anything really to do with servants and masters, the logic of Weatherston would soon prove to be enduring and expansive.

Lewis v. Few

William Few was a Founding Father who represented Georgia at the Constitutional Convention. He was also a well-known critic of New York Governor Morgan Lewis. For his part, Lewis was notoriously thin-skinned and filed a number of defamation lawsuits against his critics. Few was one of them.

The lawsuit arose out of Few presiding over a public meeting convened to discuss nominating a candidate for the governor’s office in the upcoming election. During that meeting, the body adopted a number of resolutions, as well. One of those resolutions was especially hostile to Lewis:

The first to suggest that honestly mistaken beliefs should be absolutely privileged when the plaintiff is a public official.

“Resolved, that we consider the prosecution, commenced by Governor Lewis against Thomas Farmer, as chairman of a public meeting of free citizens, to be an unwarrantable attempt to suppress and destroy one of our dearest and most valuable privileges, that of . . . discussing freely the conduct of public men and public measures.”

Lewis — not messing around — did not initially file a libel lawsuit. Instead, he sought to have Few brought up on criminal charges. The court rejected that attempt, though it “condemn[ed] the publication in question.”

Lewis then resorted to suing Few in his personal capacity. To fend off the suit, Few’s counsel fashioned an argument by analogy, applying Weatherston’s master-servant privilege to the nature of a republican government in the United States:

Where words are spoken, or a letter written, bonafide, by a master, concerning the character of a servant, though the specific acts or crimes are charged, and which turn out to be false, yet no action lies. The words must be proved to be malicious, as well as false. [Citing Weatherston]

The present case may be considered as analogous.

The people must be regarded as the sovereign or master, and the persons elected as their agents or servants. It is essential, in an elective government, that the people should be at liberty, bonafide, to express their opinions of any public officer, or candidate for office. And the question of bonafides, or malice, should be decided by the court; for it would not be safe, in cases of this kind, to leave it to a jury, to infer malice.

It was a well-engineered argument. But, the court ultimately rejected it — emphatically: “To such a proposition I can never yield my assent.” As the court explained, “It is the undoubted right of the people to assemble together to discuss public measures, and the qualifications of candidates for public office. They may freely speak, and publish the truth, and the whole truth: but this cannot authorize them to publish falsehoods.”

While the court rejected Few’s argument (as did some others presented with similar ones), Few’s analogy was hard to shake. It seemed, after all, imminently sensible. Of course, if the People are the masters of their government, and their officials in government are their servants, the People should be privileged to discuss their servants’ conduct in government.

But the idea, however sensical, was also a radical one in the early nineteenth century. Courts were still struggling with how to deal with other gaudy relics of the common law of libel that made public discussion about public men dangerous in a system of government that was supposedly reliant that very discussion.

Still, given time, courts would endorse Few’s approach as early as the 1830's, and on through the remainder of the century. As one legal treatise confirmed in 1889, “The rules of the modern law governing the right of discussion of public men . . . gives large play to the expression of honest and candid opinion, even if this be at times mistaken and unjust.”

State v. Burnham

In the 1830s, a Mr. Burnham targeted Lyman B. Walker, the lawyer for Strafford County, with being “intemperate” and “incompetent to the discharge of the duties of his said office.” This wasn’t some offhand remark; Burnham printed two hundred copies of it and sent it to his fellow citizens.

The State brought him up on criminal libel charges. (The risk of libeling the government at the time.) And, at his trial, Burnham argued, as Few had before him, that if he made the charges against Walker “in good faith, with pure motives, and upon probable grounds” to believe it, then it was irrelevant whether the charge was true.

Unlike Few, the court accepted the argument: a defendant may show, as a complete bar to a claim, that “upon a lawful occasion, [he] proceeded with good motives — upon probable grounds — upon reasons which were apparently good, but upon a supposition which turns out to be unfounded.” In other words, a defendant may show he acted without actual malice on lawful occassions.

What were such “lawful occasions”? Well, the court explained, they would be “removal of an incompetent officer,” preventing the “election of an unsuitable person,” or, “generally, to give useful information to the community . . . in order that they may act upon such information.’ In short, allegations affecting a republican form of government. (This reasoning was accepted elsewhere in the 1830s too, including in New York.)

Recognizing that it “would be an idle and vain attempt, to endeavor to reconcile all the discussions in the books upon the subject,” the court expressed its confidence that it had provided “sound practical rules, which, while they give no countenance to defamation, protect all persons in publishing, upon lawful occasions, the truth from whatever motives, and what they have reason to believe the truth, if it is done with motives which will bear examination.”

Palmer v. City of Concord

Burnham, like Weatherston before it, had staying power. Some thirty years later, during the Reconstruction (in a case, no less, about the War), the Superior Court of Judicature of New Hampshire would double down on Burnham. As the court explained in 1868 in Palmer v. City of Concord, echoing the arguments of Few’s counsel:

In this country every citizen has the right to call the attention of his fellow citizens to the mal-administration of public affairs or the misconduct of public servants, if his real motive in so doing is to bring about a reform of abuses, or to defeat the re-election or re-appointment of an incompetent officer.

If information given in good faith to a private individual of the misconduct of his servant is “privileged,” equally so must be a communication to the voters of a nation concerning the misconduct of those whom they are taxed to support and whose continuance in any service virtually depends on the national voice. To be effectual, the latter communication must be made in such form as to reach the public.

(The decision in Palmer is especially noteworthy as Palmer was a racist and Southern sympathizer, running a Democratic paper in the Republican New Hampshire. Months after the Civil War began, the First New Hampshire Regiment destroyed his printing shop in the middle of the night. That the court nevertheless gave him latitude to argue his malice defense is striking, considering this.)

Other state courts adopted similar reasoning — either based on the master/servant analogy to Weatherston or more generally on a rapidly developing, related privilege in England: “If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications [“made by a person in the discharge of some public . . . duty, whether legal or moral”] are protected for the common convenience and welfare of society.”

Contrary to Thomas’ understanding of the historical record then, it is incontestable that public officials before the Reconstruction were denied recovery because of a lack of actual malice on the defendant’s part. In addition to the Burnham and Palmer, courts adopting this rule or ones like it include:

  • Mott v. Dawson (Iowa 1877) (County Board Supervisor): “[I]f the words were spoken by defendant without malice, in good faith, believing them to be true, and having reasonable cause as a prudent, careful man to so believe, and with the honest purpose of protecting the public from plaintiff’s supposed dishonesty, the defendant is not liable.”
  • Shurtleff v. Stevens (Vt. 1879) (Clergyman): “If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”
  • Marks v. Baker (Minn. 1881) (City Treasurer): “The subject-matter of the communication in the case at bar was one of public interest in the city of Mankato . . . and one in which the defendants had an interest as residents and tax payers of the city. It was, therefore, a privileged communication within the rule mentioned, if made in good faith.”
  • Crane v. Waters (D. Mass. 1882) (Railroad Baron): “The public has a right to discuss, in good faith, the public conduct and qualifications of a public man, such as a judge, an ambassador, etc., with more freedom than they can take with a private matter . . . . They are not held to prove the exact truth of their statements, and the soundness of their inferences, provided that they are not actuated by express malice, and that there is reasonable ground for their statements or inferences.”
  • Miner v. Post & Tribune Co. (Mich. 1882) (Police Justice).
  • State v. Balch (Kan. 1884) (Candidate for County Attorney): “If the supposed libelous article was circulated only among the voters of Chase county, and only for the purpose of giving what the defendants believed to be truthful information, and only for the purpose of enabling such voters to cast their ballots more intelligently, and the whole thing was done in good faith, we think the article was privileged and the defendants should have been acquitted, although the principal matters contained in the article were untrue in fact, and derogatory.”
  • Kent v. Bongartz (R.I. 1885) (Police Officer): “The author or authors of the communication may make it, and press it upon the attention of others, honestly believing it to be true, and acting from the purest and highest motives, when in fact it is false, and therefore actual malice is not to be inferred from mere falsity.”
  • Express Printing Co. v. Copeland (Tex. 1885) (Candidate for Mayor): “Whatever pertains to the qualification of the candidate for the office sought is a legitimate subject for discussion and comment, provided that such discussion and comment is not extended beyond the prescribed limits. That is, all statements and comments in this respect must be confined to the truth, or what in good faith and upon probable cause is believed to be true . . . . In our form of government the supreme power is in the people; they create offices and select the officers. Then, in the exercise of this high and important power of selecting their agents to administer for them the affairs of government, are the people to be denied the right of discussion and comment respecting the qualification or want of qualification of those who, by consenting to become candidates, challenge the support of the people on the ground of their peculiar fitness for the office sought?”
  • Briggs v. Garrett (Pa. 1886) (Judge): “It is mistakes, not lies, that are protected under the doctrine of privilege. A communication, to be privileged, must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause. . . . If the voters may not speak, write or print anything but such facts as they can establish with judicial certainty, the right [to canvass and discuss qualifications of public persons] does not exist, unless in such form that a prudent man would hesitate to exercise it.”
  • McNally v. Burleigh (Me. 1897) (Deputy Sheriff): “To be privileged, the words must have been published without actual malice, in an honest belief of their truth, and with that belief based upon reasonable or probable cause, after a reasonably careful inquiry.”
  • Boucher v. Clark Publishing Co. (S.D. 1900): If defendant had reason to believe, and did believe, that the charges were true, and they were published, without malice, for the purpose of enabling voters to cast their ballots more intelligently, he should not be held liable in this action.”

In these cases, we see early courts both before and after the Reconstruction not simply applying tired, overly rigid rules of the common law of libel as developed in England. (Even courts in England had long since moved on.) Instead, we see courts — often invoking the right to freedom of speech — trying to balance the interest in protecting the reputations of public officials with protecting democratic debate. And, more and more often, the latter was deemed to be more deserving of protection.

Coleman v. MacLennan

None of this should be surprising. Sullivan itself noted the existence of a common law “privilege immunizing honest misstatements of fact”— an accurate assessment that belies Thomas’ factually incorrect assertion that the common law privilege “applied only when the facts stated were true.”

Brennan, however, did not catalogue the nineteenth century cases in this article. Rather, he stowed away their twentieth century counterparts in a footnote — originalism being less important in 1964. Still, he did linger on one case establishing, what he called, a “like rule” to Sullivan’s actual malice rule: the 1908 Kansas case Coleman v. MacLennan.

In Coleman, the Topeka State Journal published an article relating to certain school funding transactions directed by a commission on which plaintiff, the state attorney general, sat. The Kansas Supreme Court posed the question of that case as one of “utmost concern”: “What are the limitations upon the right of a newspaper to discuss the official character and conduct of a public official?”

Noting that the state constitution protected “liberty of the press,” the court observed that “frequently it is said that the expression was used in the sense it bears in the common law.” This begged the question though: “The common law at which stage of development?”

“Certainly not,” the court said, in 1607 when English settlers stepped foot on the eastern shores of the continent — fifteen years before the first newspaper even would be published. At that time, English law was the stuff of the Star Chamber and being “subservient to royal proclamations.”

The same went for later that century. Even after the Star Chamber was abolished in 1641, “parliament assumed the prerogative respecting the licensing of publications.” At this point through the end of the century, the liberty of the press in England was “more theoretical than actual on account of the harshness of the law of libel.”

After reviewing the liberalization of defamation through the eighteenth century, it admitted, “The English law of defamation is not the deliberate product of any period. It is a mass which has grown by aggregation . . . . The result is that perhaps no other branch of the law is as open to criticism for its doubts and difficulties, its meaningless and grotesque anomalies.

The common law of defamation, the court said, “is, as a whole, absurd in theory, and very often mischievous in its practical operation.”

“The result is,” the court wrote, “that ‘liberty of the press’ is still an undefined term. Certain boundaries are fairly discernible within which the liberty must be displayed, but precise rules can not be formulated in advance to govern its exercise on particular occasions.”

Beginning with basics, it explained that the “constitutional guaranty clearly means” that there shall be no prior restraints and that the press shall be free of court censorship. Early commentators said the guarantee was nothing more, but “later commentators and later decisions maintain that it does mean more.”

Judge Cooley, a proponent of the actual malice standard, wrote in one 1880s case, borrowing from the English, “The public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered, may be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments commendatory of individuals.”

Quoting Judge Thomas Cooley, the court explained, “[W]hile we concede that liberty of speech and of the press does not imply complete exemption from responsibility for everything a citizen may say or published, . . . it is nevertheless believed that the mere exemption from previous restraints can not be all that is secured by the constitutional provisions.”

The freedom of the press, as Cooley saw it, “implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their . . . scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation or pecuniary interests of individuals.”

But there must be an exception when another interest is considered: “Where the public welfare is concerned the individual must frequently endure injury to his reputation with­out remedy.” Indeed, “in some situations an overmastering duty obliges a person to speak, although his words bring another into disrepute.”

In the court’s opinion, one such occasion was speech regarding the character and qualifications of public officials:

Under a form of government like our own there must be freedom, to canvass in good faith the worth of character and qualifications of candidates for office, whether elective or appointive, and by becoming a candidate, or allowing himself to be the candidate of others, a man tenders as an issue to be tried out publicly before the people or the appointing power his honesty, integrity, and fitness for the office to be filled.

While this could “inconvenience” public officials and “occasional[ly]” injure their reputations, this injury was outweighed by “[t]he importance to the state and to society” to discuss public officials’ qualifications.

Turning to the rule to be extrapolated from these principles, the court explained as so many courts had held before it:

[W]e think a person may in good faith publish whatever he may honestly believe to be true, and essential to the protection of his own interests or the interests of the person or persons to whom he makes the publication, without committing any public offense, although what he publishes may in fact not be true and may be injurious to the character of others.

Without allowing for honestly mistaken statements, the “liberty of press [would] be endangered if the discussion of such matters must be confined to statements of demonstrable truth.” As the court explained, “If . . . the author were obliged to justify every statement by evidence of its literal truth, the liberty of public discussion would be unworthy of being named as a privilege of value.”

Coleman was the intellectual capstone of the privilege that was born of the late eighteenth century and grew throughout the nineteenth. Taking together with those cases, it demonstrates conclusively that the common law of libel did, in fact, consider a lack of actual malice as a defense to a defamation claim by a public official.

This is not to overstate the argument. Not all courts agreed with Burnham, Palmer, and Coleman over the years. As Professor Eric Freedman pointed out in an important historical survey that he undertook, “Cases were decided each way, and it is difficult to judge which view was more widely held.”


In 1888, Newspaper Libel, A Handbook for the Press hit the shelves. At a slim three hundred pages, it billed itself as the first “convenient [legal] reference [for] newspaper offices.”

While there remained “a very wide difference of opinion on the subject” in the States, the handbook advised its readers, “Among the various publications which are protected by the law of privilege . . . are those respecting public men and candidates for public office.” And, based on that, it instructed:

[I]f [the charges] are based upon some foundation in fact, written in a tone of moderation, and published in good faith, the publication is privileged, even though it contains false imputations upon the integrity of persons whose conduct is being considered.

Frustratingly, Justice Thomas must know much of this. One of the authorities he cites in his opinion in McKee, after all, is an 1889 law review article titled, Criticism of Public Officers and Candidates for Office. That article not only details some of the cases discussed in this article, it endorses their logic, finding that there is “much justification” for the actual malice rule devised by them, the precursor to the Sullivan rule.

Yet, rather than fighting on the open field, addressing the history of a lack of actual malice as either mitigating damages or barring recovery altogether, Thomas resorts to taking potshots at Sullivan. He focuses only on cases against it, without recognizing the numerous ones in his favor — undermining both his argument here and his method.

But here’s what a good faith, originalist survey shows: Sullivan’s rule did not break sharply from the common law of libel. If anything, it was a product of it, a refinement, a constitutionalization of an increasingly important doctrine meant to protect discussion meant to enable self-government. That is to say, Sullivan’s rule was an eventuality, an amalgam of what came before it.

(On that note, there are still other early cases that recognized the interests discussed in cases regarding mitigation and privilege outside of those contexts: for example, the right to petition the government or the privilege to report on judicial proceedings. Some courts, as early as 1818, simply found statements about public officials non-actionable.)

Sure, the cases discussed in this article have long been collecting dust. Many were cited just a handful of times, and, most, have now been forgotten. This makes sense, though, as the Sullivan rule displaced the need for them. Once cutting edge, they have themselves become relics. But these relics exist, waiting to be rediscovered, and that is the most powerful rebuke of Thomas’ argument, and one most likely to stave off reconsideration of Sullivan by his colleagues.



Matthew Schafer

Media Lawyer. Adjunct Professor/Mass Media Law at Fordham University School of Law. Twitter @MatthewSchafer