Protecting Free Speech in a Post-Sullivan World

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