In particular, a principled commitment to text, original meaning, and history should lead today’s justices to reconsider the “actual malice” doctrine by which the Supreme Court in the 1960s and 1970s revised the traditional law of libel and the long-established understanding of the First Amendment’s protection for the “freedom of the press.” On the traditional view, libel—or the publication of defamatory falsehoods—was no part of the freedom of the press. It was rather an abuse thought to be outside the scope of that freedom. Accordingly, suits for libel raised no constitutional problems at all, even when the plaintiffs were elected officials or candidates for public office.
In 1964, the modern Court set this tradition aside and substituted a new, two-tier system of libel law, establishing special standards for cases in which public officials (and, later, “public figures”) sued to recover damages for injuries to reputation. Unlike ordinary litigants, the Court announced, public persons, in order to prevail in a libel suit, would have to show not only that they had been victimized by publication of a defamatory falsehood, but also that the publisher had acted with “actual malice”—understood as knowledge of the falsity of the published claim, or at least “reckless disregard” for whether it was true or false. These standards have no basis in the text, original meaning, or history of the Constitution and are a product of judicial activism in the spirit of Roe. The contemporary Court owes it to the nation to reconsider them and return us to traditional principles in this area of constitutional jurisprudence.
The Origins and Development of the Actual Malice Doctrine
The Supreme Court first introduced the “actual malice” rule in New York Times v. Sullivan (1964). The Times had published a political advertisement critical of Southern opposition to desegregation, with specific condemnations of the conduct of Montgomery, Alabama’s police force. The ad contained some inaccuracies of fact, which led L. B. Sullivan, one of Montgomery’s city commissioners, to sue the Times for libel. Sullivan prevailed in the trial court and, on appeal, in the Supreme Court of Alabama. The Times then appealed to the Supreme Court of the United States, which, in an opinion authored by Justice William Brennan, reversed, handing America’s newspaper of record a last-minute victory.