Protecting Free Speech in a Post-Sullivan World

58 Pages Posted: 3 Oct 2022

See all articles by Matthew Schafer

Matthew Schafer

Fordham University School of Law

Jeff Kosseff

United States Naval Academy, Cyber Science Department

Date Written: September 28, 2022

Abstract

Until 1964, courts were free to penalize journalists, activists, and others for criticizing the most powerful figures in the United States. That changed with the Supreme Court’s opinion in New York Times v. Sullivan, which requires public officials suing for defamation to establish actual malice, a daunting hurdle. Over the next three decades, the Court expanded on Sullivan and built a framework that provides vital First Amendment protections for modern journalism, online commentary, and other criticism. Those safeguards face their greatest threats ever, as high-profile figures weaponize defamation lawsuits and two Supreme Court justices call on their colleagues to join them in reconsidering Sullivan. As the Supreme Court has recently demonstrated, it will not shy away from rethinking even the most vital and established constitutional protections. To prevent the damage to free speech caused by a sudden reversal of Sullivan, we propose the federal Freedom of Speech and Press Act, which codifies many of the protections of Sullivan and its progeny and preempts state defamation laws that do not satisfy certain minimum standards that preserve “uninhibited, robust, and wide-open” debate across the country.

Keywords: First Amendment, free speech, Section 230, defamation, libel, media, press

Suggested Citation

Schafer, Matthew and Kosseff, Jeff, Protecting Free Speech in a Post-Sullivan World (September 28, 2022). Federal Communications Law Journal, 2022, Available at SSRN: https://ssrn.com/abstract=4232480 or http://dx.doi.org/10.2139/ssrn.4232480

Matthew Schafer

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Jeff Kosseff (Contact Author)

United States Naval Academy, Cyber Science Department ( email )

121 Blake Road
Annapolis, MD 21402
United States

HOME PAGE: http://jeffkosseff.com

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