In Restoring the First Amendment, Carson Holloway contends that the Supreme Court should revisit and reject the “actual malice” doctrine introduced in the famed libel case, New York Times v. Sullivan (1964). Though many have heralded Sullivan as a landmark ruling in defense of First Amendment freedoms, Holloway contends that the Court in this case erred radically in its interpretation of the Constitution. According to the Sullivan Court’s novel “actual malice” standard, to recover damages certain libel plaintiffs—public officials and public figures—must show not only that they were victims of defamatory falsehood, but also that their defamers acted with knowledge that the publication was false, or at least with reckless disregard for its truth or falsity. As Holloway demonstrates, the Sullivan doctrine’s two-tier system of libel law—with one standard for ordinary persons and another for the prominent—that has no roots in the original understanding of the freedom of the press, or in the tradition of American law that prevailed from the Founding up to the time the Sullivan ruling was handed down. 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. Holloway concludes that 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.
