David McGowan’s A Bipartisan Case Against New York Times v. Sullivan

At 1 J., the article has now been published. The Introduction is Free Speech L.509 (2022).

Malice is the actual rule New York Times Co. v. SullivanThe reason that the rule is so famous is its beneficiaries and not its logic. The direct beneficiaries of the rule were civil right advocates and their movement. Established media firms were general beneficiaries. The case’s moral power is due to the benefits to civil rights activists and the inexorable possibility that Southern racism reporting could be suppressed by libel laws.

While the benefits to media companies are likely to account for the growth of the holding and its entrenched status over the years, new speakers who can be enabled by innovation will embrace the rule. This is where the rule could be more advantageous to speakers than and at the cost for firms who are willing to invest accurately.

This opinion is an amalgamation of historical and current concerns. It includes a plausible assumption regarding the economic incentives for publishers, as well as an unstated assumption concerning the cost structure and supply of information. This assumption about the cost structure is no longer valid and it’s insufficient reasoning to support the actual malice rule.

It is not only a matter of respecting precedent, but it is also weak to support the retention of that rule. Although current calls for the case to be reexamined are louder from the Right, there’s good reason to consider the actual malice rule. 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.

Take a look at the entire thing.

The article was accepted on October 15, and then published 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. If there had been more reasons to speed up publication, it would have been possible.