Zoom Workshop on Prof. David McGowan’s Forthcoming “A Bipartisan Case Against New York Times v. Sullivan”

It will be at 3 to 4 pm Pacific time on Thursday, December 9, 2021, at; please join us if you’re interested. Here is the Introduction.

Malice is the actual rule New York Times Co. v. SullivanThe reason that this rule is so famous is its beneficiaries and not its logic. The rule’s immediate beneficiaries were civil rights activists and their movement. However, the main beneficiaries were established media companies. This case is morally strong because of the potential for libel laws to be used to suppress Southern racism reporting, as well as the benefit to civil right advocates. The holding’s expansion and its enrailed status are due to the established media companies. The reasoning is made up of historical and current issues, and a plausible assumption regarding the economic incentives for publishers. It also includes an assumption about publishing’s cost structure. It is not true that the cost structure assumption holds anymore. The reasoning itself does not justify the actual malice rule. The case to retain that rule aside from the respect of precedent is weak. While current calls for the case to be reexamined are stronger from the Right, there’s good reason to reconsider the malice rule regardless. Corollary doctrines—that a defamation plaintiff must prove falsity and, in cases involving matters of public concern, damages, and that factual findings receive de novoReview should be maintained