ABSTRACT
The theme of this article is that the core holding of New York Times v Sullivan, that the First Amendment protects personally harmless publications criticizing the government, can and should be distinguished from the more radical aspects of the Supreme Court’s present First Amendment jurisprudence that came later and that more aggressively impinge on the interest of private individuals in being free from libelous attacks on their reputations. The holding of New York Times v Sullivan itself works no great innovation in American defamation law. Prosecutions for seditious libel had long been distinguished from personal libel actions. And the inverse also is true, unlike defamatory publications about individuals, criticisms of government have always been especially valued in America. The body of this article will demonstrate that many Anglo-American thought leaders throughout the 18th and early 19th centuries saw and emphasized this important distinction between libeling a human and libeling the government, with the latter being more worthy of protection. The article proceeds in this way. After a brief introduction, the holding in New York Times v Sullivan is briefly surveyed. Then the article reviews the history leading up to and immediately following the adoption of the First Amendment with an eye to the important historical distinction between seditious libel and libel of a natural person. Then the Supreme Court’s post- New York Times blurring of this important distinction will be noted before the article concludes briefly.
Hensler, Louis W, New York Times v Sullivan Protects Seditious Libel, Not Personal Libel (June 3, 2024).
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