In the summer of 2022, something extraordinary happened in America’s modern constitutional history. The Supreme Court, in Dobbs v. Jackson Women’s Health Organization, reversed its earlier creation, in Roe v. Wade, of a constitutional right to abortion. By this ruling, the Dobbs Court destroyed a key assumption that had come to govern our thinking about the trajectory of American constitutional law since the rise of modern judicial activism. That assumption, supported by decades of experience, held that such activism would function exclusively as a kind of one-way “progressive” ratchet, with each landmark ruling moving American politics and American culture further away from traditional constitutional principles, and with no realistic prospect that a later, more conservative, Court majority would have the temerity to undo its predecessors’ constitutional innovations. On this view, history, aided by the Supreme Court, moves in one direction only, and more traditionally minded justices can only delay, but not reverse, the process. The Dobbs decision destroyed this assumption.

　　The Dobbs ruling thus opens up the possibility that the present Court may revisit other activist rulings that have improperly distorted the Constitution’s meaning. Indeed, the Dobbs opinion makes such corrections not only possible but practically obligatory. After all, the Dobbs majority did not reject the right to abortion on the basis of some jury-rigged, result-oriented, previously unheard-of standards of interpretation. Rather, the majority properly concluded that the doctrine of Roe v. Wade should be rejected because it was not rooted in the text, original meaning, or history of the Constitution. The majority thus sought to recommit the Court to a traditional, non-activist approach to constitutional interpretation that obviously has application to other important questions. And Roe v. Wade is far from the only case in which the Supreme Court has, over the last several decades, abandoned text, original meaning, and history in favor of the justices’ own policy preferences.

　　In particular, a principled commitment to text, original meaning, and history should lead today’s justices to reconsider the “actual malice” doctrine by which the Supreme Court in the 1960s and 1970s revised the traditional law of libel and the long-established understanding of the First Amendment’s protection for the “freedom of the press.” On the traditional view, libel—or the publication of defamatory falsehoods—was no part of the freedom of the press. It was rather an abuse thought to be outside the scope of that freedom. Accordingly, suits for libel raised no constitutional problems at all, even when the plaintiffs were elected officials or candidates for public office.

　　In 1964, the modern Court set this tradition aside and substituted a new, two-tier system of libel law, establishing special standards for cases in which public officials (and, later, “public figures”) sued to recover damages for injuries to reputation. Unlike ordinary litigants, the Court announced, public persons, in order to prevail in a libel suit, would have to show not only that they had been victimized by publication of a defamatory falsehood, but also that the publisher had acted with “actual malice”—understood as knowledge of the falsity of the published claim, or at least “reckless disregard” for whether it was true or false. These standards have no basis in the text, original meaning, or history of the Constitution and are a product of judicial activism in the spirit of Roe. The contemporary Court owes it to the nation to reconsider them and return us to traditional principles in this area of constitutional jurisprudence.

　　The Origins and Development of the Actual Malice Doctrine

　　The Supreme Court first introduced the “actual malice” rule in New York Times v. Sullivan (1964). The Times had published a political advertisement critical of Southern opposition to desegregation, with specific condemnations of the conduct of Montgomery, Alabama’s police force. The ad contained some inaccuracies of fact, which led L. B. Sullivan, one of Montgomery’s city commissioners, to sue the Times for libel. Sullivan prevailed in the trial court and, on appeal, in the Supreme Court of Alabama. The Times then appealed to the Supreme Court of the United States, which, in an opinion authored by Justice William Brennan, reversed, handing America’s newspaper of record a last-minute victory.

　　To be clear, the problem with New York Times v. Sullivan is not the outcome of the specific case but the Court’s use of it as a vehicle by which to devise and impose a novel constitutional doctrine on the nation. The ruling itself can hardly be regarded as unjust. The Times ad had not even mentioned Sullivan by name, so it would be hard to hold that he had been libeled by a publication that was not even clearly about him. The Court, however, did not rest its conclusion on these considerations alone, but also on a new libel standard that it proposed to apply to plaintiffs like Sullivan.

　　Libel cases brought by public officials, the Court held, raised a constitutional problem by raising a First Amendment problem. They threaten to limit the vigorous exchange of political views upon which self-government depends and which the First Amendment especially aims to protect. To address this danger, the Court came up with a new standard to be applied to such cases: the actual malice rule. “Actual malice” here carried a specific, technical meaning—that the allegedly defamatory claims had been published with knowledge of their falsity, or at least with reckless disregard for their truth or falsity. To win damages in a libel action, the Court held, plaintiffs who were public officials would have to show not only that they had been defamed by a false publication, but also that the falsehood had been published knowingly or recklessly. This standard gave the press (and others) what the Court believed was the constitutionally required breathing room to discuss vital public issues without undue fear of incurring large damage awards for erroneous publications—with the admitted side effect that some public officials who had actually suffered reputational damage from false reports would be unable to secure legal redress for their injuries.

　　Over the following decade, the Court further explained the doctrine and clarified the scope of its application. Later that same year, in Garrison v. Louisiana, the Court (again in an opinion by Justice Brennan) ruled that the actual malice test should be applied not only to civil but also to criminal libel cases. The Court here also explained that the element of “reckless disregard” for the truth had to be understood as something far worse (and more difficult to prove) than ordinary negligence. As new cases came along, the Court also expanded the reach of the doctrine with regard to the kinds of litigants to whom it would apply. By 1967, the justices had found (in Curtis Publishing Company v. Butts and Associated Press v. Walker) that the actual malice rule should extend not only to libel cases brought by public officials but also to those brought by public figures—that is, to people who, though not holding any position of public authority, nevertheless enjoy a special prominence in the community and influence over its affairs.

　　The actual malice doctrine does not deserve to be considered genuine constitutional law because it cannot be convincingly derived from the Constitution.

　　By 1971, the Court’s position regarding the actual malice test was still somewhat unsettled, in two ways. First, it had not yet produced a single majority opinion explaining why the test should extend to cases involving public figures. Second, Justice Brennan had advocated (in 1971’s Rosenbloom v. Metromedia) a further extension of the doctrine. Brennan held that the real question was not the status of the plaintiff but the subject matter of the speech in question. Thus for him, the actual malice test should be applied to all libel cases involving issues of public interest, regardless of whether the target of the libel had been a public official, a public figure, or an ordinary person.

　　Finally, in Gertz v. Welch (1974) the Court settled these questions and established the now prevailing understanding of the actual malice doctrine. With Justice Powell authoring the Court’s opinion for a solid majority of five, the justices declined Brennan’s invitation to extend the reach of the doctrine to all public issues and also explained more fully why it should extend not only to public officials but also to public figures. The scope of the doctrine, the Court noted, depends not only on the need to protect a robust public debate but also on balancing this consideration against the state’s interest in protecting reputation. On this view of the matter, it made sense to apply the actual malice doctrine to public figures as well as public officials, because the state has less of an interest in protecting the reputations of public persons than of private ones. After all, the justices reasoned, public persons had less need of legal assistance in defending their reputations, because they had greater access to the media and hence a greater ability to set the record straight on their own. And they were less deserving of the law’s protection because they had, by assuming a place of prominence in the community, tacitly consented to the reputational dangers accompanying increased public scrutiny.

　　Text and Original Meaning

　　The actual malice doctrine does not deserve to be considered genuine constitutional law because it cannot be convincingly derived from the Constitution, understood as a set of authoritative principles pre-existing, and separate from, the will or desires of the justices who introduced it. The doctrine is not supported by the text, original understanding, or history of the First Amendment. Indeed, the latter two sources of constitutional meaning—original understanding and history—not only do not support, but, in fact, contradict the doctrine and the kind of reasoning that led to it.

　　The relevant language of the First Amendment provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” (Today, through the doctrine of “incorporation, the courts interpret the Fourteenth Amendment as applying this language to the state governments as well.) On its face, this wording, articulating a general principle, provides no clear support for either the actual malice doctrine or the traditional understanding of libel and the freedom of the press that preceded it. True, one might, by an apparently literal and absolutist reading, try to press the text into the service of the more permissive drift of the modern Supreme Court’s rulings regarding the freedom of the press, both in the area of libel and elsewhere. That is, one might contend that the language means that the government may not enact any law regulating the press in any way. If this is what the First Amendment means, then we could at least say that the modern Court’s approach to libel and the freedom of the press, being more permissive, is closer to the truth than the approach that preceded it.

　　This argument, however, encounters a serious difficulty. If the First Amendment forbids the government from regulating speech and the press at all, then the Sullivan Court and its successors erred by providing insufficient protection for these constitutional rights. This reading, in other words, would require the Court to hold that libel actions are entirely forbidden by the First Amendment—instead of finding that the First Amendment requires the actual malice standard, which merely makes it more difficult for public officials and public figures to prevail in a libel action. At any rate, hardly anyone believes (although Justice Hugo Black is an exception), and the Court has never held, that the First Amendment prohibits all regulations of speech and of the press.

　　If the bare words of the constitutional text can neither affirm nor condemn the actual malice doctrine or the understanding it displaced, then we must look beyond the text to some source that can shed light on its meaning—namely, the original understanding of the “freedom of the press” protected by the First Amendment. Indeed, the text itself seems to invite the reader to take such a step. The Amendment refers to “the … freedom of the press” without attempting to define this concept. It thus seems to presuppose an already existing understanding to which it refers. This conclusion is confirmed by what we know of the politics that led up to the writing and ratification of the First Amendment. Constitutional protection for the freedom of the press was demanded by the Anti-Federalists. These critics of the unamended Constitution did not present themselves as arguing for a brilliant innovation of their own devising. They rather cast blame upon the framers of the Constitution for overlooking this well-known and much-revered principle.

　　In fact, that principle, like many others that were precious to the Founding generation, was part of the inheritance of English liberty that the colonists brought with them to North America. That inheritance taught them the importance of the freedom of the press, just as it taught them the importance of its limits. The most authoritative commentator on the common-law liberty that influenced the thinking of the Founders was William Blackstone, author of the celebrated Commentaries on the Laws of England. There Blackstone insisted that “the liberty of the press is indeed essential to the nature of a free state.” At the same time, he drew a distinction, also familiar and essential to the Founders, between liberty and license. For him, the liberty of the press was distinct from its “licentiousness.” “Every freeman,” he wrote, “has an undoubted right to lay what sentiments he pleases before the public.” But, he added, “If he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.” And libel, for Blackstone, clearly belonged not to the liberty of the press but to its licentiousness. “Where scandalous libels are punished by the English law,” he observed, “the liberty of the press is by no means infringed or violated.”

　　To be sure, the Founding generation departed from Blackstone in some respects. Blackstone had held that even true statements could be criminally libelous, since the criminal law intended to prevent the breach of peace that could arise from any publicly humiliating publication. American legal opinion, shaped by Alexander Hamilton’s celebrated argument in People v. Croswell (1804), held instead that the truth of a statement should be a permissible defense in both civil and criminal libel cases. Nevertheless, it is fair to say that the Founding generation adopted in its essentials Blackstone’s view that libel, understood as a false and defamatory report, is no part of the liberty of the press.

　　The pre-Sullivan Supreme Court of the United States repeatedly affirmed the traditional understanding that libel is an abuse of the freedom of the press, unprotected by the Constitution.

　　Blackstone’s influence is evident in the works of the great legal commentators of the Founding period: James Wilson, James Kent, and Joseph Story. In his Lectures on Law, Wilson observed that the “citizen under a free government has a right to think, to speak, to write, to print, and to publish freely, but with decency and truth, concerning public men, public bodies, and public measures.” Kent, in his Commentaries on American Law, observed that state-level libel cases did not violate state constitutional protections for “the liberty of the press” but “went only to control the malicious abuse or licentiousness of the press.” And Story, writing as a circuit judge in Dexter v. Spear (1825), observed simply that “liberty of speech, or of the press, has nothing to do with” libel and that this liberty is therefore “not endangered by the punishment of libelous publications.”

　　The Sullivan Court’s reasoning and conclusions, then, are both alien to the original understanding of the “freedom of the press” protected by the First Amendment. The Court’s reasoning began from the premise that libel cases involving public officials create a First Amendment problem. The Founders, in contrast, saw no constitutional problem with such cases because they held, with Blackstone, that libelous publications—whether about public or private persons—were simply outside the scope of the legitimate “freedom of the press,” belonging instead to the unprotected category of “licentiousness.” The outcome of the Sullivan Court’s reasoning, the actual malice doctrine, is likewise completely untethered from the original conception of speech and press rights. No one among the Founders suggested that public men who had been victimized by the publication of defamatory falsehoods could only recover damages by showing that the publisher knew that the publication was false or acted with reckless disregard for its truth or falsity.

　　The Court of History

　　Defenders of the Sullivan doctrine might respond that its author did in fact provide a kind of originalist and historical justification for it based on the Founding-era controversy over the Sedition Act of 1798. The Sedition Act recognized truth as a defense against a charge of seditious libel, but was nevertheless condemned as unconstitutional by august figures such as Thomas Jefferson and James Madison. In view of Jefferson and Madison’s political successes in the wake of the election of 1800, Brennan held that the Sedition Act had been found unconstitutional “in the court of history.” He then concluded from this account of the controversy that the First Amendment’s protection for freedom of the press must be understood to extend even to false and defamatory publications.

　　Brennan’s argument here is unpersuasive and amounts to little more than a spurious and opportunistic attempt at the appearance of an originalist and historical justification. In the first place, Jefferson and Madison’s views hardly represent an early American consensus on the meaning of the Constitution on this matter, since equally venerable figures—such as Alexander Hamilton, John Adams, and James Iredell—thought the Sedition Act was constitutionally sound. Moreover, Jefferson and Madison’s objections to the Sedition Act were based more on concerns about states’ rights and federalism than on the meaning of “the freedom of the press.” They thought that the combination of the First Amendment with the lack of an enumerated power over the press meant that the federal government had no authority to regulate the press at all (again, a position that even the modern Court has never embraced). Yet they admitted that the courts of the states were open to public officials who had been libeled, without suggesting that such cases would have to be handled according to some special standard like the “actual malice” test.

　　In the century and a half following the Sedition Act controversy, American courts continued to handle libel cases, even those involving public officials and candidates for public office, according to the traditional standards—without any hand-wringing that such cases created a problem for the “freedom of the press” (either as protected by state or federal constitutional provisions), and without any suggestion that such cases required a special, separate standard such as the Sullivan Court’s “actual malice” test. The traditional libel standards—according to which anyone who libeled anyone was answerable for damages because of the defamatory character of the falsehood published, without reference to the publisher’s subjective beliefs about its accuracy—were defended as reasonable and necessary at the beginning of the nineteenth century by the highest appeals court in the State of New York in King v. Root (1829), a case involving a libel of the state’s lieutenant governor, and at the end of the nineteenth century by then-judge William Howard Taft in Post Publishing Company v. Hallam, in which a newspaper accused a congressional candidate of accepting a bribe to drop out of his race. These standards were similarly applied and defended in the early twentieth century by judges in Michigan and New York in cases involving public figures of the highest prominence, such as Teddy Roosevelt and the chairman of the New York Republican Party. While some states liberalized their libel standards for cases involving public officials and candidates for public office, the traditional standards still held in a majority of states at the time the Sullivan Court issued its ruling.

　　Meanwhile, over the same course of history, the pre-Sullivan Supreme Court of the United States repeatedly affirmed the traditional understanding that libel is an abuse of the freedom of the press, unprotected by the Constitution. This view was embraced not just by solid majorities but by all of the justices in cases like Near v. Minnesota in 1931 and Chaplinsky v. New Hampshire in 1942. It was affirmed again as late as 1957 in Roth v. United States, just seven years before New York Times v. Sullivan—and in an opinion authored by Justice William Brennan himself!

　　Given the preceding discussion, no one can pretend that the actual malice doctrine was deduced by any process of legal reasoning from the Constitution itself. It is instead the fruit of judicial policy-making, the product of the justices’ sense of the proper balance between protection for reputation and for freedom of the press—that is, their understanding of what it would be best for the Constitution to mean. It is, in other words, the result of pure judicial activism and ought to be rejected by a Court that correctly understands the justices’ task as the discovery and not the invention of law.