Private Law Theory

… This Article is in defense of Sullivan, challenging Thomas’s and Gorsuch’s attacks on that case. First, Part I summarizes the justices’ main complaints with Sullivan and the actual-malice rule. Turning to the challenge, Part II raises questions about Thomas’s purported method for understanding the meaning of the First Amendment at the Founding. Parts III-VI then conduct a wide-ranging analysis of the historical record as it concerns the interaction of freedom of the press and libel in the early United States, drawing into doubt the central claim that the Founders simply equated freedom of the press in America to freedom of the press in England. This review demonstrates that far from freedom of the press forming against the backdrop of the common law of libel, as Thomas suggests, the law of libel in the United States formed against the backdrop of an American understanding of freedom of the press. Finally, Part VII offers some responses to Thomas’s and Gorsuch’s more pragmatic attacks on Sullivan …

Matthew L Schafer, In Defense: New York Times v Sullivan, 82 Louisiana Law Review (2021).

First posted 2021-12-10 15:40:45