The Volokh Conspiracy

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Free Speech

Journal of Free Speech Law: David McGowan's A Bipartisan Case Against New York Times v. Sullivan


The article is now published, at 1 J. Free Speech L. 509 (2022); here's 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 at the time 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 likely account for the expansion of the holding over time, and for its entrenched status, but new classes of speakers enabled by innovation embrace the rule as well. At this point, the rule may benefit such speakers more than, and at the expense of, firms willing to invest in accuracy.

The opinion's reasoning 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, and thus about the supply of information. 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, at least in cases involving matters of public concern, a defamation plaintiff must prove falsity, fault must be shown to establish liability, damages must be proved unless at least recklessness is shown, and factual findings receive de novo review—should remain.

Check out the whole thing!

By the way, the article was submitted on Oct. 15, accepted Oct. 19, and published now three months later. And that delay was in part because the author wanted to make some more edits—which may in part have stemmed from the blind reviewers' suggestions and then from suggestions from commentators at an online workshop we put together; both of those are part of the service that the Journal offers to authors. Had there been more reason to get the article out quickly, we could have done that, within a few weeks if necessary.