The task of today’s constitutionalists—and the task of constitutionalists of every generation—is to preserve our fundamental law, protecting it against the forces that seek to transform it. What are such constitutionalists to make of the landmark First Amendment decision, New York Times v. Sullivan (1964)? This question has come to the fore in recent years, as the formerly revered ruling has become the subject of increasing complaints and criticism.
This criticism is very capably laid out in Mark Pulliam’s recent review in Law and Liberty of Samantha Barbas’s new book, Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan. Sullivan was, as Pulliam rightly notes, a “radical decision.” In one stroke, Justice William Brennan’s opinion for the Court revised the libel standards of all 50 states—standards which could be traced in their essentials back to the American Founding.
The older American constitutional tradition held that false and defamatory communication was simply outside the scope of the “freedom of speech and of the press” and that, accordingly, legal actions against libel raised no constitutional problem. Brennan and his colleagues, departing from this tradition for the first time, held that the First Amendment did protect some libelous publications: those that were made about public officials doing their official duties. The Court did not go so far as to hold that the First Amendment absolutely prevented public officials from suing for libel. But the justices held—again, for the first time—that the constitutional protection for “freedom of speech and of the press” required that libel suits by public officials be adjudicated under different standards from those used in cases involving ordinary Americans. Henceforth, public officials would have to show not only that their reputations had been injured by a false and defamatory report. They would also have to show that the report had arisen from “actual malice”—that is, that the publisher or author of the false claim had known that it was false, or at least had acted with reckless disregard for whether it was true or not. In subsequent cases, the actual malice requirement was extended to “public figures” (those who, despite not holding public office, have nonetheless achieved some prominence in the community) as well.
As Pulliam observes, New York Times v. Sullivan, despite the praise heaped upon it for two generations, is bad constitutional law and bad public policy. It is bad constitutional law because it is not based on the original understanding of the First Amendment. The concept of “actual malice” as the Court has used it since 1964 is nowhere to be found in the legal thinking of the generation that ratified the Constitution.
It is bad public policy because in practice it gives the press near-immunity from libel suits brought by public figures and therefore near-impunity to traffic in false and defamatory claims about them. The actual malice standard requires the plaintiff in a libel suit to prove, at a minimum, that his defamer acted with a “high degree of awareness” of the “probable falsity” of the defamatory report in question. Not surprisingly, it has proven very difficult for any plaintiff to meet this standard—a standard which actually encourages journalists to run sensationalistic stories without fact-checking them, since further investigation would increase their knowledge and thus heighten their legal exposure. The result: a public discourse that is dominated much more by hysterical claims about public figures than by rational consideration of public policies.
Contemporary constitutionalists are likely to be perplexed by this critique. On the one hand, Pulliam is certainly on target in his criticisms; and, indeed, the constitutional infirmity and bad consequences of the Sullivan decision have been recognized in recent years by prominent jurists such as Justices Clarence Thomas and Neil Gorsuch. On the other hand, many constitutionalists will feel a deep reluctance to draw the practical conclusion that this critique suggests: that the Supreme Court should, in a suitable case, revisit New York Times v. Sullivan and junk the actual malice doctrine.
These days, commitment to the preservation of the Constitution is not a primary concern of the American left. Accordingly, most of today’s constitutionalists are either conservatives or libertarians. Conservative constitutionalists will be hesitant to see the Court revisit New York Times v. Sullivan because it is now a longstanding precedent. Conservatives, after all, are reluctant to tamper with existing traditions, and the Sullivan ruling has been around long enough to enjoy a kind of traditional status. Libertarian constitutionalists will hesitate because libertarians are most interested in the protection of individual rights, and the Sullivan ruling seems to be one that protects a fundamental right—the right to freedom of speech and of the press.
The status of reputation as a fundamental right in the thought of the Founders ought to unite rights-loving libertarians and Founding-revering conservatives in opposition to New York Times v. Sullivan.
If we probe more deeply, however, we discover a fundamental flaw in the Sullivan doctrine—one that can perhaps unite both conservative and libertarian constitutionalists in a resolution to seek its reversal. The actual malice doctrine turns out to be not only bad constitutional law (in the sense of being the product of a non-originalist reading of the First Amendment) but bad public policy. It also undermines the primary purpose of government according to the American theory: the protection of the natural rights of the individual.
This radical consequence of the Sullivan opinion is obscured by commonplace references—in both court opinions and legal commentaries—to the “reputational interests” that are protected by libel law. But reputation is not just an interest. It is, as the American Founders can teach us, a right—in fact, a natural right that governments are instituted to protect. The status of reputation as a fundamental right in the thought of the Founders—and the obvious inadequacy of the actual malice doctrine to secure it—ought to unite rights-loving libertarians and Founding-revering conservatives in opposition to New York Times v. Sullivan.
The status of reputation as a right in the American political tradition is often overlooked. When we think of the rights that government is instituted to protect, our minds usually turn first to the great triad enumerated by John Locke: life, liberty, and property. Locke, however, despite his undeniable philosophic influence on the Founders, was not the sole source of their thinking. Equally important was the great “oracle of the English law,” William Blackstone. Blackstone, in his Commentaries on the Laws of England, taught that “the security of his reputation or good name from the arts of detraction and slander are rights to which every man is entitled by reason and natural justice, since without these it is impossible to have the perfect enjoyment of any other advantage or right.”
According to Blackstone, the security of one’s reputation is not merely a customary but a natural right—a right based on “reason and natural justice.” Although they did not use precisely the same formulation, this understanding was also held by the great American commentators on law of the Founding generation. James Kent’s Commentaries on American Law covered libel in its discussion of “the Absolute Rights of Persons.” The “preservation of every person’s good name from the vile arts of detraction,” Kent observed, “is justly included” as “a part of the right of personal security.” In the same spirit, James Wilson, in his Lectures on Law, spoke of libel as a “crime against the right of reputation,” noting that “robbery itself does not flow from a fountain more rankly poisoned than that which throws out the waters of calumny and defamation.” In Dexter v. Spear (1825), Justice Joseph Story held that the “general rule of law is that whoever does an injury to another is liable in damages to the extent of that injury,” regardless of whether “the injury is to the person, the property, the rights, or the reputation of another,” because “the law has declared all these entitled to its protection.”
These reflections ought to shape how libertarian and conservative constitutionalists think about libel law and the consequences of the Sullivan ruling. Libertarians should realize that libel laws are not burdensome regulations imposed by a censorious nanny state. Rather, they protect the rights of individuals. The victim of defamation should have as much right to sue for recovery of damages as the victim of fraud or breach of contract. And conservatives should recall that our legal traditions—especially ones that result from relatively recent innovations—must be judged against the teaching on rights that informed our nation’s Founding. Our traditions should protect and transmit, not undermine, the fundamental character of our rights-respecting regime.
Defenders of the Sullivan ruling might be tempted to contend that it is not as damaging to rights as this argument suggests. After all, it does not expose everybody’s reputation to damage, only the reputations of those few who choose to thrust themselves forward as public figures, and who thereby tacitly agree to undergo a greater risk of defamation. This argument is sophistic, despite its having been invoked by the Supreme Court itself as a justification for its two-tiered system of libel law.
It is true that those who enter into public life tacitly agree to expose themselves to a greater danger of defamation. It does not follow at all, however, that they have tacitly agreed to have no effective remedy for the defamation that will inevitably come. No doubt those who go into business—and who accordingly enter into far more economic transactions than an ordinary person—necessarily expose themselves to a greater danger of being defrauded. We would surely not conclude from this that they ought to meet a higher standard of proof when they sue for fraud.
In any event, such a defense of the Sullivan ruling simply brings to light its incompatibility with another fundamental American principle: equality before the law. The purpose of American government is to protect rights, and to protect the rights of all equally. It is no more consistent with the American theory of government to give the reputations of the powerful and prominent less protection than those of ordinary people than it would be to accord less protection to the property of the wealthy than to the property of the middle class and the poor.
The doctrine of New York Times v. Sullivan is bad constitutional law, bad public policy, and bad for the equal protection of rights which is the fundamental purpose of our political and legal system. These grave defects should unite constitutionalists of all stripes in seeking an opportunity for the Supreme Court to revisit this precedent and return the nation to the Founders’ understanding of libel and the First Amendment.
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