The Attack on New York Times v. Sullivan
A battle plan for coming jurisprudential upheaval.
This is the first 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
In early 2019, Justice Thomas called on the Court to overrule New York Times v. Sullivan, the case that adopted the actual malice rule — the idea that an absence of knowledge of falsity or a high degree of awareness of probable falsity precludes recovery in a defamation action brought by public people. For a lifetime now, that rule has been a sturdy shield for news organizations and journalists targeted by public officials and public figures for retaliation. Actual malice’s contributions to the preservation of journalistic endeavor in the United States are incalculable. There is no doubt about that.
According to Thomas though, the Court in Sullivan — a unanimous Court no less — failed to make “a sustained effort to ground [its] holding[] in the original meaning of the Constitution.” Instead, he characterized Sullivan “and the Court’s decisions extending it [as] policy-driven decisions masquerading as constitutional law.” These rulings “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.” Concluding, Thomas told his colleagues that they “should carefully examine the original meaning of the First and Fourteenth Amendments” and, ultimately, overrule Sullivan and the actual malice rule.
Adam Liptak, writing under the headline Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling, summarized Thomas’ view that “the First Amendment did nothing to limit the authority of states to protect the reputations of their citizens and leaders as they saw fit.” NPR said that Thomas’ view “sent shockwaves through the legal and media worlds.” Cass Sunstein called it a “stunning plea for reconsideration” of Sullivan. The New Republic panned it as “mak[ing] it easier for wealthy and powerful Americans to suppress unfavorable news coverage with onerous legal proceedings,” while Thomas’ supporters wrote that it was time to “end the First Amendment sanctuary for fake news.” (On that last part, 🙄.)
Outside the popular press, practitioners and academics took note too. Lee Levine and Stephen Wermiel said there was no reason for alarm: “Justice Clarence Thomas’s broadside against New York Times v. Sullivan would most likely not have fazed Justice William J. Brennan Jr., the author of that landmark decision.” Thomas relied “on arguments made and rejected decades earlier,” and “Brennan would likely say he had heard it all before.” Sunstein, however, thought Thomas may have had a point: “It is important to note that the Court did not really speak in originalist terms [in Sullivan].” Still, Josh Blackman argued that “the constitutional objections to the Sedition Act of 1798 provide some originalist basis to impose a higher bar for libel suits filed by government officials.”
Levine and Wermiel have extensively canvassed the post-Sullivan progeny with exacting specificity, both in their book, The Progeny, and in Communications Lawyer shortly after Thomas released his opinion. But beyond Sunstein’s and Blackman’s passing assessments of the historical record, what is missing is a proper originalist rebuttal to Thomas. To be sure, the history of libel law pre-Sullivan has been the subject of substantial academic inquiry — by academic giants no less, but Thomas’ point-by-point attack on Sullivan requires a contemporary point-by-point response. This is especially so as Thomas has, in other First Amendment contexts, been charged with “faux-originalism,” namely, an “extremely selective originalism.” (As another scholar put it: “Justice Thomas’s originalism is not only extreme; it is also careless.”).
Make no mistake: Thomas’ opinion is dangerous. It would un-constitutionalize the entire law of defamation, leaving defamation defendants at the whim of state courts, state legislatures, and state juries. All at a time where the media is continuously denigrated as fake news. And it has emboldened the plaintiffs’ bar. Counsel for Sarah Palin, for example, has argued outright (albeit unconvincingly) in the Southern District of New York that Sullivan should be overruled, asserting that it “subverts human dignity.” Palin was not the first and will not be the last. Thomas’ success (along with the late-Justice Scalia) in pulling the Court in his interpretative direction should also be cause for concern for anyone that cares about freedom of the press.
Friends of freedom of the press should not take this lying down. It’s been more than a year now, but little has been done to address Thomas, in court or in academia. We need a battle plan. And there is an obvious but highly effective one: flank Thomas from both sides. First, defenders of a free press must collect historical evidence that draws Thomas’ thesis into question on its own originalist terms. This is especially important in dealing with a more conservative bench that may find particular comfort in such history. Let’s use it. Second, the merits of the methodology itself, the originalist approach, must be attacked at the same time. Both its weaknesses as an interpretative tool and its scary extremes. Only if Thomas’ opinion is attacked from both sides can it effectively be neutralized.
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.
In McKee, for example, Thomas argues that scandalum magnatum — a set of medieval statutes allowing the peerage to bring libel-like lawsuits that commoners could not — shows that libels against public officials were always treated as more severe than others. But the history of scandalum magnatum actually demonstrates the opposite. Around the Glorious Revolution and the reorientation of Parliament over the Crown, Parliament attempted to repeal the statutes, judgments under them were reversed, they fell into disfavor as inconsistent with the political and social orientation of the country, and actions brought under them died out altogether and the statutes were all but forgotten. If anything, the de facto death of the scandalum magnatum by the time of the Founding shows that public officials were not treated differently.
Moreover, those statues are planted in monarchial dirt that protected the King and peerage to the exclusion of the people. They were no more made for England after the Glorious Revolution than they were for the republican government founded a hundred years later in the United States. And, in fact, early courts in the United States showed open contempt for scandalum magnatum. In 1872, the Illinois Supreme Court explained that scandalum magnatum was “never recognized in this country.” The North Carolina Supreme Court bluntly said in 1887: “[I]n this day and country there is no such thing as ‘Scandalum Magnatum.’” In 1890, the Massachusetts Supreme Judicial Court agreed, writing that “[t]he doctrine of scandalum magnatum has never been adopted in this Commonwealth.” The Eighth Circuit said it best, scandalum magnatum was “once the law” but “a revolution intervened.”
Thomas also relies on evidence that the common law of libel in the United States historically treated libels against public officials as more serious than others. We can start with the biggest weakness of Thomas’ argument, which is one he readily admits: several States early on provided a privilege to defendants in cases involving criticism of public officials that was not afforded in cases involving private figures. As Thomas admits, “The common law did afford defendants a privilege to comment on public questions and matters of public interest.” That included charges against the “‘public conduct of a public man.’” In other words, one could get away saying things about a public person that she could not get away with as to a private person.
In an attempt to dismiss the import of this privilege, Thomas hastens to add that it was limited to what it was meant to protect, i.e., the public’s interest in knowing about their representatives. Thus, because a false charge as to a public representative would not further the public interest, the privilege applied only if the charge was true. And, the privilege did not apply to a public official’s “private character.” But nonetheless, even with these limitations, the privilege — which made it more difficult for public figures to recover — existed. That fact alone is at odds with Thomas’ entire thesis.
At any rate, there is another reason why the existence of this kind of privilege is problematic to Thomas’ assault on Sullivan: it was not limited to true statements in all the States. Thomas seems to believe that Sullivan just made up privileged falsity whole cloth. It ain’t true, folks. In several States the privilege protected statements that were honestly mistaken, i.e., “mistakes of fact.” Sound familiar? It is this kind of privilege in these States that foreshadows the Court’s holding in Sullivan. Thomas ignores literally all of these cases across more than a dozen of the forty-eight States at the time.
It was not a modern development either. Defense counsel first advocated for privileged falsehood as early as 1809, and States increasingly adopted such a rule throughout the nineteenth century, beginning in earnest in the 1830s before the Reconstruction. After, in 1877 Iowa, for example, in a civil libel case brought by a candidate for a county board, a defendant stated that the plaintiff fraudulently sold cattle. The Iowa Supreme Court found such statements privileged, “Everyone who believes himself to be possessed of knowledge which, if true, does or may affect the right and interests of another, has the right, in good faith, to communicate such his belief to that other.” This was especially so where the plaintiff was a candidate for office: “As we understand the evidence, the charge was made against the plaintiff by the defendant to persons who were electors, and whose suffrages were sought by the candidacy of the plaintiff.”
And, in 1885, in Texas, in a civil libel case brought by a candidate for mayor against a newspaper that charged him with skimming money off the top of an estate, the court ruled, “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.” Such limits, the court said, included “statements and comments . . . confined to the truth, or what in good faith and upon probable cause is believed to be true.” This emphasis both on subjective belief and a probable cause in that belief are early harbingers for the actual malice rule. (In a way, a requirement only that a defendant had probable cause to belief the charge could be even more protective than the actual malice rule.)
This reasoning, that which protected what the printer believed to be true, even if it was actually false, was variously followed in New Hampshire (1837), Massachusetts (1856), Vermont (1879), Minnesota (1881), Kansas (1884), Georgia (1884), Rhode Island (1885), Pennsylvania (1886), Indiana (1893), North Carolina (1893), Maine (1897), South Dakota (1900), and Wisconsin (1913). And in California (1921) and Connecticut (1955) later on.
Even more to the point though, the courts that extended the privilege to mistaken falsehoods were deliberate in doing so, and, underpinning their reasoning, was a commitment to a republican form of government. As the Texas Supreme Court explained, “In our form of government the supreme power is in the people; they create offices and select the officers.” Thus, the people could not “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.”
These state courts realized early on, as the Court would say decades later in Sullivan, “[t]hat erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’” As one commentator observed, “[T]he issue in Sullivan, the standards by which it was resolved, and the resolution itself all have considerable precedent in cases from nineteenth-century America.” Thomas’ contrary conclusion is thus questionable at best. Certainly, it’s at least open to debate as an originalist matter.
There is more evidence too drawing into question Thomas’ thesis. Thomas, for example, relied on Blackstone to prove his point, but Blackstone is an utterly. miserable. source. for understanding the meaning of freedom of the press at the time of the Founding. The guy voted for the Stamp Act, after all. Take just one piece of history: After the signing of the Declaration of Independence, Jefferson was convinced that “our whole [Virginia] code must be reviewed” and “adapted to our [new] republican form of government.” The Virginia legislature assigned the work to him and a few others. One suggested that they adopt Blackstone as their guide and purge “what was inapplicable, or unsuitable to us.” Jefferson hated the idea. He feared that “the meaning of every word of Blackstone would . . . become a source of litigation,” and the end product then would be to “retain[] the same chaos of law-lore from which we wished to be emancipated.”
Blackstone was not the lodestar in Jefferson’s estimation; he was the bad guy.
It might as well be said though: not all of Thomas’ authority can be swept away. The Supreme Judicial Court of Massachusetts did say in 1808, as Thomas points out, that “the publication of falsehood and calumny against public officers . . . is an offence most dangerous to the people, and deserves punishment.” But it also recognized, as Thomas does not point out, that “when any man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his character in issue.”
And that is kind of the point. Even where Thomas’ analysis is not based on a faulty reading of the historical record (and it often is), it is undercut by his convenient omission of countervailing evidence. Thomas presents the history of libel as if it were a tidy corner of the law where nothing is out of place. He does the same of the understanding of the First and Fourteenth Amendments before Sullivan. But they are not now, nor ever were, tidy. The Founding generation and the Congresses of the Reconstruction were not of one mind when it came to the common law of libel or the effect, if any, of the First and Fourteenth Amendments had on it. But much of them believed that the common law of libel must be reined in for political discourse to survive. While I don’t lay out all of the evidence here, it’s there and there’s no reason to be scared of the history. You just have to go looking.
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.
As to the initial question, there are at least three problems with Thomas’ method that should give him heartburn and should be exploited by those fighting back such originalist arguments: (1) How much history is required before a conclusion can be drawn; (2) what to do with historical evidence pointing in opposite directions; and (3) what part of history should matter. As we’ll see, there are few good answers to these questions.
First, there is the issue of how much history one needs to conclude that they have arrived at an originalist understanding for the purposes of the First Amendment. Thomas, for his part, has repeatedly relied on varying levels of historical consistency from varying times of history to satisfy himself that history, generally, is on his side. As far as I can tell, there’s no apparent rhyme or reason to it. Thomas just takes what seems “good enough” for him to claim that he’s merely finding the law as it stood at the Founding or the Reconstruction. It’s nonsense.
In McIntyre v. Ohio Elections Commission, for example, Thomas cataloged the historical record at length but nevertheless characterized it as “not as complete or as full as I would desire” yet, apparently, good enough to conclude that the Founders intended the First Amendment to protect anonymous speech. Elsewhere, like in 44 Liquormart, Inc. v. Rhode Island, to support his historical understanding that commercial speech was seen as valuable as non-commercial speech, he rested on just three post-Reconstruction cases. In Morse v. Frederick, to support his view that students had no free speech rights in public schools, he satisfied himself as a matter of legal history based on a smattering of cases from the nineteenth and early twentieth centuries and various non-legal history books.
It’s unclear how much history in support of Sullivan (or against it) is needed to conclude that history proves one point or another. Thomas provides no answer. ¯\_(ツ)_/¯ While reasoning from logic or theory provides predictability (or at least an explanation), because Thomas instead vaguely relies on history, his method breaks down and becomes wholly subjective. It can be equated to relying solely on legislative history. Sure there’s something for everyone, but so what? This is hardly the intellectual high ground Thomas claims it to be.
Second, and relatedly, there is the issue of what is to be done with historical evidence that cuts in opposite directions. History is, of course, never cut and dry. Some pushes in this direction. Some pulls in that direction. But Thomas’ approach does no heavy lifting on this point, leaving us blowing in the wind as to which history matters more. Thomas’ opinion in McIntyre highlights this problem.
There, Thomas pointed out that on multiple occasions early legislatures attempted to unmask the identities of various authors. In one vignette, Thomas explains that during a sitting of the Continental Congress Elbridge Gerry, himself a Founding Father who protested the Constitution on the grounds that it lacked a Bill of Rights, “moved to haul the printer of the newspaper before Congress to answer questions concerning Leonidas[’ identity].” The motion was defeated, but one would think that it was even made — by a Founding Father of Gerry’s stature no less — demonstrates that there was no universal understanding that the First Amendment protected anonymous speech. He also tells a similar story of an entire house of a state legislature (not just a single Founder, who might be more easily dismissed) that was, in turn, defeated by the other house in its attempts to identify an author.
Despite the muddled history in favor and against the proposition both by a Founder and a house of a legislature, Thomas comes away from this history with a curiously absolutist conclusion: “the Framers shared the belief that such activity [of anonymous publication] was firmly part of the freedom of the press.” How that math works out from an originalist perspective is more than a little vexing to me.
Third, there is the problem of what part of history matters. This is not simply a question of whether we should look at history in the run up to the ratification of the First Amendment; or whether we should look at history in the run up to the ratification of the Fourteenth Amendment; or whether some other time is appropriate. (There is no guidance as to those questions either though.) Instead, the issue here is more basic: whatever part of history may be relevant, within that part, where should we look?
Two recent opinions from Thomas illustrate this problem. In McKee, as noted, Thomas cites the adoption of scandalum magnatum as support for his thesis that the common law of libel has always treated libels of public officials more seriously. The adoption supports his theory, he says, but he entirely ignores that scandalum magnatum was the target of popular criticism, fell into disuse in England before the Founding, was repealed in England, and was violently rejected by American courts. (Some support, eh?)
In Rogers v. Grewal, a Second Amendment case that the Supreme Court recently denied certiorari on, however, Thomas took a different approach to a medieval statute of similar provenance. There, he noted that the medieval Statute of Northampton made it illegal to public carry weapons — an inconvenient fact for Thomas who supports the recognition of a Second Amendment right to public carry. Thomas did not let this deter him though: In fact, he dismissed the Statute of Northampton’s adoption saying that it arrived “during a time of political transition.” (So it goes in medieval England.)
Instead, Thomas focused on what he ignored with scandalum magnatum: the statute’s ultimate demise. According to Thomas, from the beginning the reach of the Statute of Northampton was unclear, it did not appear to be strictly enforced, its existence threatened the expansion of rights around the time of the Glorious Revolution, and it was substantially restricted by the time of the Founding. And it was this part, Thomas said, that matters: “for purposes of discerning the original meaning of the Second Amendment, it is this founding era understanding that is most pertinent.”
Why the difference in focus? Scandalum magnatum and the Statute of Northampton had remarkably similar historical arcs. Everything Thomas said about the Statute of Northampton — especially the bit about how it was perceived after the Glorious Revolution — could be said of scandalum magnatum. But in one instance, Thomas decides that the long-ago adoption of scandalum magnatum (but not its demise by 1791) is what deserves emphasis, while the demise of the Statute of Northampton by 1791(but not its long-ago adoption) is what deserves emphasis. There is no reason for the difference in treatment except to say that Thomas prefers the right of bear arms over freedom of the press.
Next, separate and apart from these interpretative issues, there is the second question of whether history should matter at all in construing what the First and Fourteenth Amendments mean today. (To channel Judge Posner for a moment: “Originalism is fake.”) There are persuasive arguments that when it comes to questions of speech, an originalist approach is the obviously wrong approach: “[T]he meaning of the First Amendment did not crystallize in 1791.” As Zechariah Chafee wrote early in the twentieth century, “The framers would probably have been horrified at the thought of protecting books by Darwin or Bernard Shaw, but ‘liberty of speech’ is no more confined to the speech they thought permissible than ‘commerce’ in another clause is limited to the sailing vessels and horse-drawn vehicles of 1787.”
Throughout early America, after all, conditions for freedom of speech were utterly miserable. Freedom of the press “was far from complete” in the Colonies. While Thomas, of course, would argue that this lack of freedom history supports his thesis in McKee, this history makes Thomas’ wish for a return to “simpler times” downright terrifying. As Justice Scalia warned of the ends of Thomas’ idiosyncratic brand of originalism, “Look, I’m an originalist and a textualist, but I’m not a nut.”
Take for example the treatment of individuals before and around the Founding. In 1661, the Massachusetts Bay legislature ordered the suppression of a book because it “advocated popular elections of officials.” In 1722, the Pennsylvania Council “barred a printer . . . from publishing without permission anything that had to do with governmental affairs.” And in Revolutionary America, “Tory printers were being harassed by mobs and by the new state legislatures.” (Shocking, I know.) By 1778, “every state had some form of sedition law which was broadly interpreted to penalize open denunciation of the patriot cause.” None of this is something we should be trying to resurrect. Half the country would be in jail.
Moreover, adopting this approach consistently throughout the Court’s First Amendment cannon would necessarily require throwing out almost all of the Court’s First Amendment jurisprudence. As Professor Dorf said, “First Amendment doctrine is pervasively nonoriginalist. . . . ‘If an originalist wanted First Amendment doctrine to track Founder Era judicial reasoning, the Supreme Court’s decisions in Texas v. Johnson, Boy Scouts of America v. Dale, Citizens United v. FEC, and Snyder v. Phelps, among many, many others, would likely have to go.’”
Thomas, Dorf noted, “joined the majority in every one of the specifically listed cases except Johnson, which was decided before he joined the Court.” It seems unlikely though that Thomas would revisit these decisions on the same grounds as he revisited Sullivan and its progeny. And, until he can explain that difference in treatment as well, a full-throated application of originalist interpretation in this little corner of the First Amendment cannon lacks intellectual merit and smacks of something else afoot.
Additionally, an application of originalism to the First Amendment is problematic because what presumably should matter most — the debates surrounding that Amendment’s adoption — is universally agreed to be unknowable. As Leonard Levy explained, “The Congressional debate on the amendment . . . was unclear and apathetic; ambiguity, brevity and imprecision of thought characterize the comments of the few members who spoke.” Jerome Lawrence Merin, who made an early historical assessment of Sullivan and the common law of libel, said similarly, “The debates in congress and in the states over the Bill of Rights . . . give us little clue as to what the framers had in mind when they stated that Congress should make no law abridging freedom of the press.”
The Court and various justices have, as well, accepted this view. As even Justice Byron White recognized in his Gertz v. Robert Welch, Inc. dissent (while still using the opportune dearth of evidence to conclude that there was “scant if any evidence . . . that the First Amendment was intended to abolish the common law of libel”), the “debates in Congress and the States over the Bill of Rights are unclear and inconclusive on any articulated intention of the Framers as to the free press guarantee.” How can one claim absolutes from this foggy history? Or put differently, maybe it gives everyone the chance to claim their own absolute, but that’s not all that helpful either.
Finally, it is worth emphasizing the craggy and perilous landscape an acceptance of Thomas’ position would bring. Thomas wants to throw out Sullivan altogether. It matters not whether a case is about public officials or public figures or private figures. It matters not whether the content of the speech at issue relates to a matter of public concern or private concern. Thomas would give defamation law back to the States wholesale to do what they will with defendant news organizations and journalists. As Levine and Wermiel made clear, Sullivan showed that States could not be trusted with ruinous defamation causes of action.
Let’s be clear: no justice on the Supreme Court besides Thomas has ever endorsed such a radical view. Even White in Gertz believed that Sullivan was correctly decided and held such a belief based on the historical record relating to the Sedition Act and seditious libel in general. (White became more hostile later on, but still not to the extreme of Thomas.) While Thomas invokes White no less than a dozen times in his opinion in McKee to support his call for overturning Sullivan, Thomas is in a league of his own. Thus, Thomas’ attempt to soften the edges of his argument with reference to White’s prior dissent should readily be recognized as a sleight of hand.
In short, there is good reason not to take an originalist understanding to the First Amendment — even if there are parts of this history that would support Sullivan. There is no way to decide what history applies, what parts should be credited and what parts not, and where our focus should lie. More to the point, it would require throwing out almost all of the Court’s First Amendment jurisprudence if applied consistently— something we should not rush to do. This is not to say that history should be ignored altogether. That’s a bad idea for reasons explained. But it should be offered and tempered at once.
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.
To posit then, that today we should think about freedom of the press in the same way that the English thought about it, that we should equate the freedom of the press under the First Amendment to the freedom of the press at common law in England before the Revolution, is to cede back basic ideals over which the Founding generation went to war. Simply put, adopting Thomas’ view picks the wrong side in the Revolution. We are Americans, not loyalists.
And there’s the real historical failing of Thomas’ argument: it is so out of step with history that it was dismissed out of hand just years after the Founding. The then-famed American editor on Blackstone’s Commentaries rejected it as early as 1803, saying that freedom of the press, as compared to England, stood on “very different . . . footing . . . in the United States, where it is made a fundamental article of the constitutions” and cautioned that we should not transplant the common law of libel in its entirety to the new country. As the Delaware high court poetically wrote in Rice v. Simmons, in rejecting overwrought reliance on the common law of England in 1838:
[N]o one can investigate the law of libel without feeling an invincible repugnance to admit in their full extent some of the old cases. Indeed, Mr. Justice Lawrence, in Woolworth vs. Meadows, says, that “many of the old cases on slander went to a very absurd length.” It cannot be that we are bound to run into the same absurdities [as in England]; that, at this day, and in this country, the opinions of black letter judges, however learned; the judgments of star chamber courts, so often subservient to state purposes; and the whole law of slander, scandalum magnatum and all, must, in the absence of legal enactments, be regarded by our courts as the law of this state; without considering the great advances that civil liberty has made throughout the world, and that the liberty of speech and of the press is now a very different thing from what it was in the ages from which these precedents are drawn.
While “we are all textualists now,” we aren’t yet all originalists. Still, even accepting that there are real problems with Thomas’ approach in McKee, we should stop acting like the history of defamation law begins in 1964. With a bevy of conservative jurists sensitive to history now in the district courts and in the appellate courts, defenders of a free press would do well to start digging deeper into this history. And there is good law before 1964. Too often, arguments in defense of the press read like a Cliff’s Notes of defamation law post-Sullivan. That the marketplace of ideas depends on counter-speech, that debates are to be robust and wide open, criticism is sometimes caustic, that falsity is the sine qua non (Latin!) of defamation, and on and on. There’s nothing wrong with these truisms (they are true) but we should recognize that they are truisms.
If, on the other hand, we start unearthing some of this legal history that explains why all this matters and for how long it has mattered, while at the same time cautioning against outsized reliance on any part of the historical record, we can begin to shore-up the foundations of Sullivan. A ruling in favor of a media defendant, history can show, is not as much a “policy-driven decision[] masquerading as constitutional law,” as it is the obvious end point of generations of evolution of defamation law in the state courts. A foregone conclusion. An evolution embodied now in the First and Fourteenth Amendments. If we’re able to do this, we can preserve Sullivan even among Thomas’ contemporaries.
