In two separate opinions in recent years (both concerning the denial of certiorari), Justice Thomas has powerfully condemned the Court’s First Amendment libel rulings in New York Times v. Sullivan (1964) and its progeny as “policy-driven decisions masquerading as constitutional law” and has lamented the harm that the “proliferation of falsehoods” enabled by those decisions has caused. Justice Gorsuch has similarly observed that the “actual malice” standard that the Court invented in that case “evolved into a subsidy for published falsehoods on a scale no one could have foreseen” and seems to have made “publishing without investigation, fact-checking, or editing has become the optimal legal strategy.”
In a long essay, constitutional scholar Carson Holloway elaborates the arguments for overturning New York Times v. Sullivan. Here is an excerpt from his introduction:
The consequences of New York Times v. Sullivan have been baleful for our nation. The ruling has undermined self-government by giving the press immense power over the public mind. Today, a partisan press routinely attempts to shape political outcomes by using defamation to make some people and some positions odious to the public. The more successful a leader on the Right becomes, the more likely that person is to be labeled a racist or a Nazi. Critics of America’s foreign policy establishment are frequently accused—without evidence—of being “puppets” of foreign leaders or in the pay of foreign governments. These smears—retailed so freely today—would have required much more caution in pre-1964 America, when they might well have landed their purveyors in court, with a real chance of having to pay damages.
The New York Times doctrine has also undermined our nation’s commitment to equality. It creates unjustifiable inequalities—between ordinary citizens and public figures (whose reputations are less protected), between journalists and all other professionals (who, unlike reporters, must face the consequences of their negligence), and between the press and public figures (most of whom have little power to resist a corporate media determined to assail their reputations). Finally, New York Times v. Sullivan runs counter to one of the basic aims of American government: to secure the natural rights of all. Reputation, as the American Founders teach us, is a right as fundamental and as precious, and as deserving of the government’s protection, as life, liberty, and property.
Moreover, these grave evils by no means result from a necessary fidelity to the Constitution. On the contrary, they arise from constitutional infidelity. With its opinion in New York Times v. Sullivan, the Supreme Court of 1964 was not discovering and adhering to the original meaning of the First Amendment. It was, rather, departing from that meaning and imposing its own novel standards on our nation’s First Amendment jurisprudence. The key elements of the New York Times doctrine—the distinction between public figures and all other Americans, and the burden on the former to demonstrate “actual malice” in order to prevail in a libel action—are not rooted in the original understanding of the First Amendment. The original understanding instead held that libel—false, defamatory publication—is outside the freedom of the press and not protected by that venerable principle. Accordingly, today’s Supreme Court should, at the earliest suitable opportunity, reverse New York Times v. Sullivan and return our nation to its traditional, and more wholesome and reasonable, standards of libel.