A Democracy Story: Reframing a Free Speech Landmark

Abstract

What can we learn about the wisdom and legitimacy of current free speech doctrine by revisiting the story behind a landmark First Amendment decision? That’s the question I explore in this review essay of Samantha Barbas’s new book, “Actual Malice: Civil Rights and Freedom of the Press in N.Y. Times v. Sullivan.”
As her subtitle indicates, Barbas’s book attempts to reframe the story of Sullivan – to shift the focus from the issue of free speech to that of racial equality. Although there are real benefits to this approach, I argue that there are also risks. The primary one is that portraying Sullivan as a civil rights case will weaken its force as a free speech precedent, implying that the decision was the result of special circumstances and that the actual malice rule it adopted is therefore not generally applicable. Instead, I argue we should think about Sullivan primarily as a case about democracy and the rules necessary to sustain it. Doing so not only underscores the decision’s universal dimensions; it also helps to defend against the numerous critiques leveled at the Sullivan regime in recent years, most of which, I argue, are unfounded.

Keywords: free speech, actual malice, defamation, neutral principles, civil rights, seditious libel, democracy