The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
It will be at 3 to 4 pm Pacific time on Thursday, December 9, 2021, at https://ucla.zoom.us/j/97253545203; please join us if you're interested. You can also read the current draft (27 pages); here is the Introduction:
The actual malice rule of New York Times Co. v. Sullivan is iconic because of its beneficiaries, not its reasoning. The immediate beneficiaries of that rule were civil rights advocates and their movement; the general beneficiaries were established media firms. Benefits to civil rights advocates, and the intolerable prospect that libel laws could be used to suppress reporting of Southern racism, give the case its moral force. Benefits to established media firms account for the expansion of the holding and its entrenched status. But the reasoning itself is a pastiche of history and topical concerns held together by a plausible assumption about the economic incentives of publishers and an unstated assumption about the cost structure of publishing. The cost structure assumption no longer holds, and the reasoning alone is insufficient to justify the actual malice rule. Apart from respect for precedent as such, therefore, the case for retaining that rule is weak. Current calls to revisit the case are more pronounced on the Right, but there is good reason to rethink the actual malice rule regardless of one's political views. Corollary doctrines—that a defamation plaintiff must prove falsity and, in cases involving matters of public concern, damages, and that factual findings receive de novo review, should remain.