The 250th anniversary of America’s birth is, of course, an appropriate occasion for expressions of gratitude for our country and for all the blessings that we have received by being a part of it. For a country like ours, however, established on certain political principles, this act of gratitude also calls us to an effort at understanding—an earnest attempt to better grasp our nation’s founding principles, which give the country its character and can only be preserved and transmitted by an informed citizenry. If that act of understanding leads us to see that we have drifted from those original principles, we should dedicate ourselves to their recovery.
At the present time, there seems to be a general need for such reconsideration and restoration. Hardly anyone would claim that we are faithfully living up to all the principles on which our Founders erected our political way of life. We have, in particular, departed significantly from them in our understanding of a principle vital to our free and self-governing society: the “freedom of the press” protected by the First Amendment. The Founders understood this freedom as distinct from (and in opposition to) license or licentiousness. We have largely lost the ability to make this distinction, or at least to make it as the Founders understood it. We should accordingly dedicate part of our political efforts over the next twenty-five years to restoring the original understanding of the freedom of the press in American culture and constitutional law.
Here, as in many other areas of our national life, the corruption of our principles has proceeded not only from the spontaneous moral drift and decline that is common to all societies but from the deliberate (if misguided) choices of our Supreme Court. In 1964, in New York Times v. Sullivan, the Supreme Court introduced a new understanding of libel and of the First Amendment into American constitutional law. For the first time, the Court held that libel actions brought for false and defamatory reports about a public official posed a serious constitutional problem: they intruded on the freedom of the press enshrined in the First Amendment. The Sullivan Court sought to protect First Amendment liberties from this threat by devising its now-famous “actual malice” doctrine. From now on, the Court said, public officials who sue in defense of their reputations can only succeed by showing not only that they have suffered reputational damage from false publication, but also that the publication was made with actual malice—meaning that the publisher acted with knowledge that the report was false, or at least with reckless disregard for its truth or falsity. In subsequent cases, the Court extended this libel standard to “public figures” as well, understood as individuals who do not hold public office but who are generally well-known or who push themselves to the forefront of public controversy.
By imposing this doctrine, the Court (as I have argued more fully in my book, No Liberty to Libel) wrenched the country away from a traditional understanding of libel and the freedom of the press that stretched all the way back to the American Founding. According to this older view, libel was no part of the freedom of the press. It belonged rather to its impermissible licentiousness. Accordingly, a libel suit brought by anyone, whether a private person or a public officer, was understood to impinge not at all on the freedom of the press. Thus the mode of inquiry adopted by the Sullivan Court would have been unfamiliar to those who drafted and ratified the First Amendment. And as the Sullivan majority’s line of thinking is alien to the Founding, so, too, is its conclusion. It was no part of the original understanding of libel or the freedom of the press that public officials or public figures had to show knowledge of falsehood, or reckless disregard for the truth, when they were victimized by the publication of a defamatory falsehood.
The Founders inherited this understanding from the great expositor of the common law, William Blackstone, whose celebrated Commentaries on the Laws of England declared that “where scandalous libels are punished by the English law, the liberty of the press, properly understood, is by no means infringed or violated.” The American Founders, though deeply influenced by Blackstone, did not adopt his understanding of the freedom of the press in all of its particulars. Blackstone held that even a truthful publication could be criminally libelous, because England’s law of criminal libel aimed not so much to protect an honestly won reputation as to prevent the breaches of the peace that happen when anyone is subjected to humiliating public revelations. The Americans, led by Alexander Hamilton, preferred the doctrine that truth ought to be a defense against any libel claim.
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The same view was affirmed even by those Founders who were more inclined toward free-speech libertarianism, great men such as Thomas Jefferson and James Madison. They stoutly opposed the Sedition Act of 1798, which criminalized false libels of the government of the United States. They did so, however, not because they thought that libel was included in the concept of the “freedom of the press,” but because they thought that the lack of any enumerated power over the press, combined with the First Amendment, meant that no power had been given to the federal government to legislate regarding libel. At the same time, they reassured the public that officeholders who had been falsely defamed would be free to vindicate their reputations in the courts of the states—apparently without raising any problems in relation to state constitutional protections for the freedom of the press.
For the last six decades, then, our country has been operating under an erroneous, judicially invented interpretation of the freedom of the press, at odds with its original and historical meaning. New York Times v. Sullivan and its successor cases are, as Justice Clarence Thomas has observed, “policy-driven decisions masquerading as constitutional law.” Or, as Justice Antonin Scalia put it in an interview near the end of his distinguished career, when the Sullivan Court announced its actual-malice doctrine, “it was revising the Constitution … It was nine lawyers who decided that that’s what the Constitution ought to mean, even though it had never meant that.” It is time for the current Supreme Court to repudiate its predecessors’ abuse of the judicial power and restore the First Amendment to its original meaning.
There is much more at stake here, however, than just constitutional accuracy and fidelity, important as they are. Correcting the Sullivan Court’s libel doctrine is also essential to recovering the Founders’ understanding of human nature and natural rights—an understanding that is truer and better than the one that informs our present public culture. The obvious cost of the Sullivan doctrine (a cost that the Court has itself admitted) is the minimal protection it provides for the reputations of public officials and public figures. Contemporary Americans are inclined to shrug off this cost because they tend to think of libel cases involving public people as involving a contest between the “right” to freedom of the press, on one hand, and the public person’s “reputational interests,” on the other. Almost anyone can see that a “right” ought to carry more weight than an “interest.”
This way of framing the issue, however, obscures the real cost of libel—a cost that is brought to light if we reconsider the Founders’ thinking. They understood that reputation is not merely a legal “interest” but a right and, indeed, a natural right. Here again they followed the teaching of Blackstone, whose Commentaries on the Laws of England contended that the “security of his reputation or good name from the arts of detraction and slander are rights to which every man is entitled by reason and natural justice; since, without these, it is impossible to have the perfect enjoyment of any other advantage or right.” This understanding was restated by the great legal commentators of the early American republic. In his Lectures on Law, James Wilson treated the right to reputation in his account “Of the Natural Rights of Individuals.” In his Commentaries on American Law, Chancellor James Kent of New York similarly placed his discussion of legal protections for reputation in his discussion “Of the Absolute Rights of Persons.”
The Founders held the security of reputation to be a natural right because they understood that humans are by nature not isolated, autonomous, purely self-interested beings, but that they are instead naturally moral and sociable creatures. By the very constitution of our nature—and not merely by socially-constructed habit and calculation—we care deeply about our own moral character and the opinion of our moral character held by our fellow human beings. This is why we are injured so deeply by unjust attacks on our good name—as deeply, or perhaps more deeply, than by theft of our property or a physical assault. This understanding of man as a naturally social and moral being, however, is not only essential to a complete account of the rights that our government was established to protect, but is also the necessary foundation of all of the virtues that sustain and ennoble our common life. We must rethink New York Times v. Sullivan, then, not only to restore the real Constitution, but also to recover the true anthropology on which a good society must be founded.
