Weighing Constitutional Anchors: New York Times Co. v. Sullivan and the Misdirection of First Amendment Doctrine

Abstract

This essay explains why so many law professors, most notably Harry Kalven (my own First Amendment teacher at the University of Chicago) were excited by the U.S. Supreme Court’s decision in New York Times Co. v. Sullivan (announced 50 years ago), why it was so widely embraced as a triumph for the soul of constitutional governance, and why ― despite its virtues ― the New York Times decision was a mistake in constitutional jurisprudence that set First Amendment doctrine down a path that threatened to undermine the very values Kalven embraced. It is an essay not about Harry Kalven, but about constitutional values, interpretive virtues, and unintended consequences.

Keywords: freedom of speech, first amendment, constitutional interpretation, judicial decision-making, defamation, government

JEL Classification: K39, K49