Actual Malice

InRestoring the First Amendment, Carson Holloway contends that the Supreme Court should revisit and reject the “actual malice” doctrine introduced in the famed libel case,New York Timesv.Sullivan(1964). Though many have heraldedSullivanas a landmark ruling in defense of First Amendment freedoms, Holloway contends that the Court in this case erred radically in its interpretation of the Constitution. According to theSullivanCourt’s novel “actual malice” standard, to recover damages certain libel plaintiffs-public officials and public figures-must show not only that they were victims of defamatory falsehood, but also that their defamers acted with knowledge that the publication was false, or at least with reckless disregard for its truth or falsity. As Holloway demonstrates, theSullivandoctrine’s two-tier system of libel law-with one standard for ordinary persons and another for the prominent-that has no roots in the original understanding of the freedom of the press, or in the tradition of American law that prevailed from the Founding up to the time theSullivanruling was handed down. This tradition held more simply and consistently that libel was an exercise not of liberty but of license, and hence outside the scope of the freedom of the press.Holloway concludes that a Supreme Court committed to interpreting the Constitution faithfully-that is, according to its text, original meaning, and historical understanding-must rejectNew York Timesv.Sullivanas a product of judicial policymaking untethered to the real meaning of the First Amendment.

Author Biography

Carson Holloway is Department Chair and Professor of Political Science at the University of Nebraska, Omaha and a Washington Fellow in the Claremont Institute’s Center for the American Way of Life.  He is the author of Hamilton versus Jefferson in the Washington Administration: Completing the Founding or Betraying the Founding? (Cambridge University Press, 2015). He is co-editor, with Bradford P. Wilson, of The Political Writings of Alexander Hamilton (Cambridge University Press, 2017) and The Political Writings of George Washington (Cambridge University Press, 2023). He has held visiting fellowships in Princeton University’s James Madison Program in American Ideals and Institutions and at the Heritage Foundation. His scholarly articles have appeared in the Review of Politics, Interpretation, and Perspectives on Political Science, and he has written public commentary for The New Criterion, First Things, National Affairs, Public Discourse, National Review, Law and Liberty, The Federalist, the American Spectator, and the American Conservative.