The Attack on New York Times v. Sullivan

A battle plan for coming jurisprudential upheaval.

Some of the Historical Evidence

On the first point, while this is not an exhaustive catalog of all of the evidence (far from it), it turns out that the historical record when it comes to the common law of libel is not nearly as unequivocal as Thomas would have us believe — in almost every way. Indeed, the historical record contains substantial evidence supporting the rule adopted in Sullivan. (I was surprised how much it contains.) Since 1791, the development common law of libel alongside that of the freedom of the press demonstrates that Sullivan and its progeny were not the unicorns that Thomas suggests.

The Convenient Originalist

It is vitally important to challenge Thomas as a matter of history, but that is not alone enough. Thomas’ opinion should also be attacked at an elemental level: originalism itself. There are at least two critiques with Thomas’ chosen interpretive device. Initially, there’s the question of whether it can be applied with any consistency, and, next, there’s the question of whether we even should try to do so. The answer to both questions is No.

Some Concluding Remarks

Fundamentally, Thomas’ originalist argument should be rejected because it is decidedly un-American. No small part of the Revolution stemmed from attacks on the freedom of the press in the Colonies, and the government that was the result of it — one where the governed were at once the governors — required a system for the exchange of ideas that protected the People in their criticism of their agents in government. This republican form of government was, of course, different from that system prevailing in the United Kingdom, and required different rules to ensure its preservation as such.

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Matthew Schafer

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