This essay was originally published by American Mind on May 7th, 2026.

Editor’s Note: The following is an excerpt from No Liberty to Libel: The Constitutional Case Against New York Times v. Sullivan, which will be published by Encounter Books on May 12.

In 1964, the Supreme Court of the United States revolutionized our country’s understanding of the First Amendment. More specifically, the Court’s ruling in New York Times v. Sullivan caused a fundamental change in how we think about the relationship of the First Amendment’s protection for freedom of the press, on the one hand, and the problem of libel, on the other.

According to the traditional view swept aside by the Sullivan Court, libel—or publication of defamatory falsehood—was simply outside the scope of the freedom of the press, a licentious abuse that the Founders never intended to enjoy constitutional or legal protection. During the lengthy period that this view prevailed, those who published false and defamatory matter were open to being sued successfully for damages, whether the victim of the libel was a private or a public person.

The Sullivan ruling changed all that. Departing from America’s original and historical understanding of the freedom of the press, the Court now held that certain kinds of libel suits do raise a First Amendment problem, or that First Amendment protection does extend to certain kinds of libel cases—namely, those brought by public officials. Piling innovation upon innovation, the Sullivan Court also devised a novel rule to address this newly perceived constitutional difficulty. Henceforth, the Court announced, public officials who sued for libel would have to show not only that they had been the victims of false and defamatory publication. Unlike ordinary plaintiffs, they would also have to show that the publication had been made with “actual malice”—a technical term by which the Court meant that the publisher had either known that the charge was false, or at least had published it with reckless disregard for its truth or falsity. This rule, the Court claimed, was necessary to protect the open and vigorous public debate on which a healthy democracy depends.

Over the next several years, additional rulings proceeded further down the trail blazed by the Sullivan Court, extending the “actual malice” requirement to cases involving not only public officials but also “public figures.” Thus, between 1964 and 1974 the Supreme Court set up a new, two-tier system of libel law that it claimed the First Amendment requires, a system with very different standards for private and public persons—standards that make it very hard for a public person to win a libel judgment, or, to put it another way, make it very easy for publishers to get away with libeling a public person while facing no legal consequences.

Unlike some of the other innovations of the Supreme Court’s most activist era, New York Times v. Sullivan met with no major public outcry when it was announced. Nor did it become the focus of increasing public controversy as the years rolled on. On the contrary, it came to be revered as a landmark ruling in defense of the freedom of the press—certainly among journalists, publishers, and First Amendment lawyers, although no doubt among many other Americans as well. And, if everybody did not revere it, the decision at least came to be accepted as a settled and unquestionable aspect of our constitutional order.

Now, however, the situation has changed. Recent years have seen a noteworthy shift in our constitutional discourse, if not (yet) in our constitutional law. New York Times v. Sullivan has become controversial in a way that probably nobody would have expected even as recently as fifteen years ago. In this, as in many other things, Donald J. Trump led the way. His calls, as a candidate and as president, to “open up” our libel laws are rather obviously aimed at the Sullivan ruling’s actual-malice doctrine and the difficulties it creates for public-figure and public-official litigants.

Governor Ron DeSantis of Florida, a Yale-trained attorney, has similarly suggested that the country’s current libel standards permit the media to traffic in “narratives” that “damage a lot of people with lies.” Moreover, some of the nation’s leading constitutional jurists—most notably, Supreme Court Justices Clarence Thomas and Neil Gorsuch—have in formal judicial opinions expressed doubts about the soundness of New York Times v. Sullivan and suggested that the contemporary Court ought to revisit it in an appropriate case.

These elite criticisms of the Sullivan standard have, not surprisingly, gotten some traction with the public. Trust in the mainstream media is at its lowest point in the last fifty years. The American people seem to sense that the country’s professional political press is not what it should be and not what it claims to be. Successful democratic self-government requires a public press that acts as a reliable source of relevant information. Such a press would perform a vital public service by assisting the sovereign people in exercising their right to choose the nation’s direction. Government by the people is one of the fundamental and long-cherished promises of the American way of life. In our representative republic, the people do not govern directly, but they are empowered to set the nation’s course through their choice of elected leaders. The people’s consent, however, is diminished or illusory if they do not have access to accurate information about candidates for public office and the issues facing the country. A responsible press will deliver such information and thus provide an essential service to America’s noble experiment in self-government.

No doubt, members of today’s mainstream media often claim loudly and proudly that they are performing precisely this function. But the American people seem not to believe them. If these claims were credible to the public, trust in the media would not be as alarmingly low as it is. In truth, any capable and honest observer will see and admit that the American press in our time too often acts as a fountain of partisan propaganda. Many of the nation’s leading news outlets seek not so much to assist the people in choosing by informing them, but to shape the people’s choices by trying to discredit certain causes and candidates. Everyone can see how some once-respected publications and networks have tried to influence the outcomes of important elections by rendering some candidates odious to the public, often by relying on the unverifiable claims of anonymous sources.

If this public environment has permitted criticism of New York Times v. Sullivan to win some sympathetic attention, however, it has not yet generated anything like a new consensus against the Sullivan doctrine. On the contrary, the criticism has provoked a countermovement offering a spirited public defense of the ruling. Many articles have been written rejecting and raising the alarm about the complaints of political leaders like Trump and DeSantis and jurists like Thomas and Gorsuch. Defenders of Sullivan often equate its doctrine with the First Amendment. They accordingly present criticism of that doctrine as an attack on the freedom of the press, on the Constitution, and even on democracy itself.

The defenders of New York Times v. Sullivan are certainly correct that great things are at stake in this debate. They are wrong, however, about the true character of the problem. The doctrine announced by the Supreme Court in the Sullivan case is itself a distortion of the Constitution and the result of a misuse of the judicial power. If the Court today were to revisit and reject that doctrine, it would not be gutting the First Amendment but restoring its true meaning. In addition, such a move by the Court would not undermine our political way of life. It would instead renew it by returning our country to its original and historical understanding that reputation is a right as precious as any other, and that the public has a vital interest in receiving true information about the character and conduct of people in political life.

This book seeks to support these claims. It agrees with Justice Clarence Thomas’s contention—put forward in his concurring opinion in Kathrine Mae McKee v. William H. Cosby (2019)—that “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” Indeed, the book endeavors to further Justice Thomas’s call in that same opinion for an originalist reexamination of the Sullivan ruling and its actual-malice doctrine for public officials and public figures. In charting this course, however, this book does more than pursue a line of inquiry suggested by one justice. It instead explores the implications for America’s First Amendment jurisprudence of fundamental principles of constitutional interpretation recently reaffirmed by authoritative majorities of the Supreme Court itself. In the last few years, in some of its most prominent rulings, the Court has reminded us that true fidelity to the Constitution requires judges to seek its meaning in the text, original meaning, and historical understanding of its provisions. This kind of inquiry, I hope to show, reveals that the Sullivan doctrine is the product of judicial policymaking untethered from the original and traditionally understood meaning of the First Amendment.

***

The Supreme Court’s opinion in New York Times v. Sullivan departed from the traditional understanding of libel and the First Amendment in two important ways. In the first place, the Court rejected the older view that libelous publication is simply not protected by the First Amendment, and that libel suits accordingly raise no constitutional problems. The Court’s opinion signaled its departure from—not to say its outright disdain for—this long-established understanding by some of the terms it employed. Justice Brennan took care to refer to libel as a “mere label” of “state law”—instead of as a deeply rooted principle of American law. He then proceeded to characterize libel, along with “breach of the peace” and “obscenity,” as “formulae for the repression of expression that have been challenged in this Court”—rather than as traditional categories that had long been recognized as essential to a tolerably ordered liberty. Brennan rounded off his rhetorical weighting of the scales by announcing that “libel can claim no talismanic immunity from constitutional limitations” and that it accordingly “must be measured by standards that satisfy the First Amendment.”

For the Sullivan Court, then, libel actions do raise a constitutional problem. That problem can be expressed by a term that the Court first used in other contexts, and that Justice Goldberg employed in his concurring opinion in the Sullivan case: the “chilling effect.” The problem with libel laws is not their direct but their indirect consequences—consequences that, in the Sullivan Court’s view, impinge on the domain of the First Amendment. Libel laws may intend no more than to prevent or repair the damage caused by defamatory falsehoods, but they also have the potential to deter true and publicly useful publication—communications that the First Amendment was created to protect. After all, some people may sue for libel even when they have not really been defamed, and the fear of such suits may lead others to curtail their speech for fear of being sued.

Brennan, accordingly, observed that a “rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to” a serious danger of “self-censorship.” Even the traditional principle that truth is a defense against a libel claim would not ensure “that only false speech will be deterred.” The traditional standards (as we will see more fully later) required the defendant to prove the truth of his statements, and even when such statements really are true it can be difficult to establish their truth sufficiently to prevail in court. Under such libel standards, Brennan noted, “would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” In light of these considerations the Court concluded that Alabama’s libel law—which, again, was not an anomaly but instead reflected traditional standards that had prevailed widely in America since the time of the Founding—“dampen[ed] the vigor and limit[ed] the variety of public debate” and was therefore “inconsistent with the First and Fourteenth Amendments.”

This brings us to the second way in which the Sullivan opinion departed from the traditional understanding of libel and the Constitution. The Court felt an obligation to devise and impose a remedy for the constitutional problem that it now perceived. That solution was not as radical as it might have been: the Court did not say that the Constitution simply prohibits libel suits, or that libel is completely protected by the First Amendment. The Court did not even go so far as the more limited claim that the Constitution forbids libel suits against public officials. The solution did entail, however, a serious modification of traditional libel standards. “The constitutional guarantees require,” Brennan announced, “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

The Sullivan Court, then, used its ruling to create a constitutionally unprecedented two-tier system of libel law. Henceforward, the ordinary person could win a libel judgment by showing that he was the victim of a defamatory falsehood, but a public official could not. The latter would have to show not only that he had been injured by a defamatory and false publication, but also that the publisher had lied deliberately, or at least had published with “reckless disregard” for the truth or falsehood of the injurious claim.