REPUBLICAN LIBERTY:

The New York Times doctrine has also undermined our nation's commitment to equality. It creates unjustifiable inequalities--between ordinary citizens and public figures (whose reputations are less protected), between journalists and all other professionals (who, unlike reporters, must face the consequences of their negligence), and between the press and public figures (most of whom have little power to resist a corporate media determined to assail their reputations). Finally, New York Times v. Sullivan runs counter to one of the basic aims of American government: to secure the natural rights of all. Reputation, as the American Founders teach us, is a right as fundamental and as precious, and as deserving of the government's protection, as life, liberty, and property.

Moreover, these grave evils by no means result from a necessary fidelity to the Constitution. On the contrary, they arise from constitutional infidelity. With its opinion in New York Times v. Sullivan, the Supreme Court of 1964 was not discovering and adhering to the original meaning of the First Amendment. It was, rather, departing from that meaning and imposing its own novel standards on our nation's First Amendment jurisprudence. The key elements of the New York Times doctrine--the distinction between public figures and all other Americans, and the burden on the former to demonstrate "actual malice" in order to prevail in a libel action--are not rooted in the original understanding of the First Amendment. The original understanding instead held that libel--false, defamatory publication--is outside the freedom of the press and not protected by that venerable principle. Accordingly, today's Supreme Court should, at the earliest suitable opportunity, reverse New York Times v. Sullivan and return our nation to its traditional, and more wholesome and reasonable, standards of libel.

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