No Liberty to Libel: The Constitutional Case Against New York Times v. Sullivan

In 1964 the Supreme Court radically altered its interpretation of the First Amendment of the U.S. Constitution. In the famed libel case, New York Times v. Sullivan, the Court ruled that public officials claiming to be victims of defamation would be held to a higher standard than ordinary citizens. They must prove not only that they were victims of defamatory falsehood, but also that their defamers acted with "actual malice" knowledge that their claim was false, or at least a reckless disregard for its truth or falsity. As a result of this ruling, newspapers cannot now be easily held liable for false defamatory statements about politicians, celebrities, or other public figures.

Though many have heralded Sullivan as a landmark ruling in defense of First Amendment freedoms, in No Liberty to Libel, Carson Holloway argues that the Supreme Court erred dangerously in its interpretation of the Constitution. Holloway contends that the Court should revisit and reject the Sullivan doctrine.

Holloway demonstrates that the Sullivan doctrine's two-tier system of libel law--with one standard for ordinary persons and another for the prominent--has no roots in the original understanding of the freedom of the press, or in the tradition of American law that prevailed for most of our history. This tradition held more simply and consistently that libel was an exercise not of liberty but of license, and hence outside the scope of the freedom of the press.

A Supreme Court committed to interpreting the Constitution faithfully--that is, according to its text, original meaning, and historical understanding-- must reject New York Times v. Sullivan as a product of judicial policymaking untethered to the real meaning of the First Amendment.

Carson Holloway is department chair and professor of political science at the University of Nebraska, Omaha and a Washington fellow in the Claremont Institute's Center for the American Way of Life. He is the author of Hamilton versus Jefferson in the Washington Administration: Completing the Founding or Betraying the Founding? (Cambridge University Press, 2015). He is coeditor, with Bradford P. Wilson, of The Political Writings of Alexander Hamilton (Cambridge University Press, 2017) and The Political Writings of George Washington (Cambridge University Press, 2023). He has held visiting fellowships in Princeton University's James Madison Program in American Ideals and Institutions and at the Heritage Foundation. His scholarly articles have appeared in The Review of Politics, Interpretation, and Perspectives on Political Science, and he has written public commentary for The New Criterion, First Things, National Affairs, Public Discourse, National Review, Law and Liberty, The Federalist, The American Spectator, and The American Conservative.