No Liberty to Libel: The Constitutional Case Against New York Times v. Sullivan
By Carson Holloway
Encounter Books, 256 pages, $33
Ever since the Constitution was written the issue of libel has generated problems. The Founders were fully aware of the inherent tension between free speech and a free press, and the laws of libel. It is a balancing act of weighing one set of rights against another, a process which itself raises critical questions.
But even if a law that is wrong has been around for a while it is still a law that is wrong, says Holloway, stare decisis or no.
Holloway, a professor of political science at the University of Nebraska, Omaha, and also a fellow at the Claremont Institute, is a good person to lead readers through the labyrinth of libel law. He seems to know everything there is to know about the history of the field, even going back to Blackstone’s Commentaries and the seminal writings of the early American legal thinkers.
Significantly, for a long time libel and defamation laws were considered to be an issue for the state governments, although decisions from state courts could be appealed to the Supreme Court. While about half the book is concerned with the development of libel law, Holloway’s key interest is a Supreme Court case called New York Times v. Sullivan. That was in 1964, the era of the ultra-liberal Warren Court. The case cemented the place of the Supreme Court and the First Amendment in libel law and set precedents which still apply.
The case itself was somewhat odd. In 1960, the New York Times had published a full-page advertisement, which had the intention of raising money to defend civil rights leader Martin Luther King Jr.. The advertisement contained several minor errors of fact about the police force in Montgomery, Alabama. The city’s Public Safety Commissioner, L.B. Sullivan, sued the newspaper for libel, claiming the advertisement hurt his reputation (although Sullivan was not mentioned by name or title in the advertisement).
An Alabama jury awarded Sullivan $500,000 in damages, and the verdict was appealed to the Supreme Court. The decision was reversed. The reason, according to the Court of the time, was that there would be a “chilling effect” in debate and discourse if public officials could easily sue over minor errors. In this thinking, newspapers, other media, and ordinary citizens might stay quiet about government misconduct out of fear of lawsuits. However, the Court did not want to completely deprive public officials of the right to sue a media outlet if they felt they had been libeled.
The solution, the Court majority decided, was to introduce a new concept, the “actual malice” rule. To succeed in their suit, a public official had to prove that the publisher acted with “actual malice.” This term means that the publisher knew the statement was false or published it with reckless disregard for the truth. This is obviously a high bar, since it involves the state of mind of the journalist and knowledge of the inner operations of the publisher. The remedies afforded to a public official who believed they had been libeled were more theoretical than practical.
The decision created a two-tier system for libel actions, one for ordinary citizens and a much more strict one for media outlets.
The key figure in the making of the Court’s decision was William Brennan, a highly activist judge. Brennan claimed that he was, in fact, arguing in accordance with the principles of the First and Fourteenth Amendments but Holloway sees that argument as very weak. He describes Brennan selecting some parts of certain precedents while ignoring others. There was a similar sleight-of-hand with Brennan’s assertion that there were “actual malice” rules operating at state level. Holloway points out that it was only a minority of states and the laws in question were not really comparable.
He concludes: “The Warren and the Burger Courts began from the superior importance of the right to criticize public officials, to which the protection of the public official’s reputation had to be subordinated as of merely secondary importance.” This bias held even if the libelous comments were proven to be false.
The Sullivan decision was hardly the first time that Brennan and the Warren Court had invented novel solutions and it would not be the last (Roe vs Wade, for example, was determined with the same cut-and-paste methodology.) Holloway says: “The ‘actual-malice’ rule was a policy choice that Brennan and his colleagues preferred rather than a legal conclusion to which they were compelled by the constitutional and historical evidence they were bound to consult.” [author’s emphasis]
Not surprisingly, once the genie was out of the bottle it continued to grow. Subsequent cases expanded the “actual malice” rule to apply not only to public officials but also to candidates for office, and then to anyone who spoke to the public from a position of supposed authority. Eventually, even celebrities were included. A 1974 case, Gertz v. Welch, sought to give a more solid judicial base to Sullivan — although Holloway argues that it does not — and the principles of Sullivan began to look like settled law.
But even if a law that is wrong has been around for a while it is still a law that is wrong, says Holloway, stare decisis or no. And Sullivan imposes social costs that exist but are not immediately apparent. A person who would be a good individual to hold a public office might be deterred from entering a contest if they know they can be libeled with no real remedy available. “It is a poor policy that deters the honorable but not the shameless from entering public life,” notes Holloway dryly.
He also raises another interesting argument. Perversely, the “actual malice” provides a disincentive to publishers and journalists to conduct careful fact-checking. Why spend time and money on research if the punishment for writing something libelous or erroneous hardly exists?
Says Holloway: “The consequence is a public discourse distorted by now-commonplace efforts to win political battles by damaging the reputations of persons rather than by making persuasive arguments about public issues.”
He puts forward some interesting suggestions, such as limiting the scope of the “actual-malice” test to cases involving public officials and candidates for public office. Another idea is to require publishers to exercise more care before publishing potentially damaging material. But these are, he acknowledges, half-measures at best. They would not correct the basic problem of ideological, policy-driven decisions made while paying little more than lip service to the Constitution.
He is hopeful that the Roberts Court will take up a case which would overturn Sullivan. A majority of the current Court looks first to the Constitution and solid precedents, and places that duty above stare decisis, as demonstrated in the Dobbs case. He believes that Sullivan and the “actual malice” rule would not survive close examination by the Roberts Court. The standards of libel law would remain but without a two-tier system.
An area that Holloway neglects to consider is the change in the nature of journalism — or perhaps one should say “journalism.” In the 1960s, 1970s, and 1980s most journalists were employed by large corporations. In 2026, all that a person needs to become a “journalist” is a website-in-a-box from Walmart or the (limited) technical expertise needed to set up a Substack. The vast majority of this keyboard army have no journalistic training and no understanding of journalistic ethics, but at present they can claim protection under the “actual malice” rule. As a result, they can write anything they want, with no regard to even simple honesty and decency. It is hard to know how overturning Sullivan would affect this problem but surely it would be better than the current situation.
This shortcoming notwithstanding, No Liberty to Libel is an important book, and should be mandatory reading in college courses on the media. Holloway does his best to explain his points in non-technical language but there are still numerous passages that require very close reading. This is not the fault of Holloway; it is simply due to the complexity of the material. But the book repays the effort, and we can only hope it finds a place on the desks of the nine justices of the Supreme Court.
READ MORE from Derek Parker:
Finding Our Constitutional Bearings
Derek Parker is a freelance reviewer who specializes in books about social change, legal issues and the impact of technology.
