The originalist majority on the Supreme Court is perhaps more open than ever to overturning what it considers to be bad precedents. In his new book, Carson Holloway argues that the justices should train their crosshairs on New York Times v. Sullivan, the 1964 decision that means statements about public officials are rarely considered libelous. He joins James Patterson to discuss the book, the history of free speech, and the future of originalism.

“Malice Toward All, Defamation for None?” by Carson Holloway, Law & Liberty
No Liberty to Libel by Carson Hollway
“The Case Against New York Times v. Sullivan” by Carson Holloway, Law & Liberty
The Political Writings of Alexander Hamilton: Volume 1, eds. Carson Holloway and Bradford P. Wilson
The Political Writings of Alexander Hamilton: Volume 2, eds. Carson Holloway and Bradford P. Wilson
“Sullivan and the Right to Reputation” by Carson Holloway, Law & Liberty

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

(00:39)

Hello and welcome to the Law & Liberty Podcast. I am James Patterson, contributing editor to Law & Liberty and associate professor at the Institute of American Civics here at the University of Tennessee. With me today is Carson Holloway. Dr. Holloway is a professor of political science at the University of Nebraska, Omaha, where he has taught since 2002. Dr. Holloway is also a fellow in the Claremont Institute Center for the American Way of Life. Dr. Holloway has published and edited many books, including with Bradford P. Wilson, the two-volume collection of Political Writings of Alexander Hamilton.

(01:24):

That’s from Cambridge University Press. But today, we will be talking about his most recent book, No Liberty to Libel: The Constitutional Case Against New York Times v. Sullivan from Encounter Press. Dr. Holloway, welcome to the Law & Liberty Podcast.

Carson Holloway (01:39):

Thanks, James, for having me. It’s a great honor and privilege and pleasure to be on with you.

James Patterson (01:43):

Excellent. Well, I appreciate that. And this is a fun book, a book I never expected to read, really. The reason I say that is because what is the relevance of this book? People may not know about New York Times v. Sullivan. So what inspired you to write about this case and its effects?

Carson Holloway (02:04):

Well, yeah, it’s a great question. I can talk a little bit about how I got into it. I’m a proponent of originalism in constitutional jurisprudence. And so I’ve been thinking in recent years about the way the originalist majority on the Supreme Court has corrected what I regarded as some errors. And it got me thinking about other modern Supreme Court cases that I thought were erroneously decided in the first place that I wanted to write about and think about. Of course, there’s a difference between being a professor who’s a proponent of originalism versus being a judge or a justice on the Supreme Court because they have to move somewhat more pragmatically. And it’s not obvious to them anyway that they’ll undo every precedent that couldn’t be justified on originalist grounds. But I wanted to make my argument for more of a cleanup operation than has happened so far.

(02:59):

And so one of the cases I was aware of from my own teaching of, say, civil liberties courses was the Sullivan opinion from 1964. And having studied it somewhat, I didn’t think that it really passed muster in terms of the original meaning of the First Amendment. So I wrote a paper on this topic that was published by the Claremont Institute a few years ago in their “Provocations” series. And the more I thought about it and the more I studied some of the recent opinions, such as the Dobbs opinion in which the Court overturned a longstanding precedent on the basis of a renewed respect for the original and historical meaning of the Constitution, the more I thought about it, the more I thought it’d be possible to write a book length treatment of the question. So that’s how I got into it. You also asked me to talk a little bit about just what the opinion is and why it’s relevant now.

(03:51):

So should I go ahead and do that?

James Patterson (03:52):

Yeah. I mean, it’s a book not just against New York Times v. Sullivan, but also the standard of actual malice. I don’t think people necessarily know what a big break that is. So talk about the case.

Carson Holloway (04:03):

New York Times v. Sullivan was decided in 1964 as a result of a case, a libel case involving a public official in Alabama, L. B. Sullivan, and the court used it to revise the nation’s libel standards and to revise really the First Amendment standards of the country, I should say, the freedom of the press standards under the First Amendment. So the traditional approach to libel from basically the Founding up until this decision was issued, and I can talk about it in more detail later if we get into the older history, but the older standard was more along the lines of libel, which is defamatory publication, publication that injures a person’s reputation is just not protected by the First Amendment. It was thought to be outside the scope of the freedom of the press. Kind of a famous statement of that briefly is in the celebrated “fighting words” case, Chaplinski v. New Hampshire, in the early 1940s, where the justices said, “Well, there’s certain categories of thought or certain categories of expression rather that have traditionally been thought not to raise any constitutional problems when they’re regulated.” And these include fighting words or words that provoke a breach of the peace, obscenity, and libel.

(05:19):

So briefly, the older approach was that libel is just not protected by the freedom of the press. And so a libel case does not raise any First Amendment problems. And the court departed from that pretty seriously in the Sullivan opinion. First of all, by holding that they think a libel case does raise a First Amendment problem. So now they’re bringing defamatory false speech within the ambit of the First Amendment’s protection. And then they solve that problem by coming up with this actual malice standard, which you mentioned, James, which says that if you’re a public official, then later they apply this to public figures as well. If you’re a public official or a public figure, in order to prevail in a libel case, you’ll have to demonstrate not only that the publication was false and defamatory, which would’ve been enough under the old standards, and which is still enough under the modern standards if you’re not a public official or a public figure, just a regular person.

(06:22):

But if you fall into those categories, you’ll have to prove in addition that it was published with actual malice, which means, according to the court, either knowledge that it was false or with reckless disregard for its truth or falsity. It’s a very difficult standard to meet. And so that’s been the standard for the last couple of generations. This is, as I said before, now a longstanding precedent. But another reason that I wrote the book is because it has become a bit of a matter of public controversy. Some famous people have started calling the actual malice standard into question, both politicians and also jurists. So the politicians are President Trump who, to my knowledge, has not spoken explicitly about the Sullivan standard, but he said many times things like, “We need to open up our libel laws. The standards aren’t good enough.” So he’s gesturing at it there.

(07:17):

And then also Governor DeSantis of Florida has said some things that are more explicitly critical of the Sullivan opinion by name and the actual malice standard by name. And then on the side of jurists, two well-known people, justices of the Supreme Court, first, Justice Thomas, Clarence Thomas, who is well known as kind of a strict originalist in some of his concurring opinions in recent years, has called into question the legitimacy of the Sullivan standard and the original ruling, and then also Justice Gorsuch more recently, who’s written some things that were sympathetic to that, but also kind of pragmatically critical of the standard based upon newer developments. So I think part of the reason the book is timely is because even as recently as 10 years ago, I believe that from the standpoint of the general public discourse, most people would not even think about a challenge to New York Times v. Sullivan.

(08:16):

It would’ve been considered a landmark First Amendment ruling that’s settled, and no one really questions it. But in more recent years, it has become more controversial. It has its defenders, too, of course, but I really thought it was time to explore the originalist critique of it at length, and that’s what I tried to do in the book.

James Patterson (08:35):

Yeah. And as someone who’s taught a media and politics course for many years, this is one of the things that comes up. It’s just when I teach the course, never in my wildest dreams did I imagine someone would write an originalist critique of … It just seems so like it’s almost part of a kind of mythology of the American twentieth century. It’s emblematic of America opening itself up to greater civil liberties.

Carson Holloway (09:00):

That’s right. And certainly from my conversations with people with whom I’ve been on panels, the journalists and the free speech lawyers and First Amendment lawyers, they all really venerate this opinion. For them, it’s the fountainhead of modern First Amendment doctrine in the realm of freedom of speech and of the press, and it’s almost sacrosanct. And certainly if you’re a journalist, it makes your position safer and easier in some respects, but it’s not consistent with the older tradition, which I try to demonstrate through several chapters in the book. It is an innovation. I find that even the people who defend it will admit that it’s an innovation, that it does depart from the older standards. They think it’s a good thing and they think it’s part of the court’s job to update these standards according to more modern expectations of freedom of speech and of the press.

(09:53):

But the Founders also believed in freedom of speech and of the press and thought it was essential to self-government and to a free society, but they believed in certain limits, and libel was outside those limits.

James Patterson (10:04):

So let’s start with this work you’ve done, really just going as far back as English jurisprudence in common law. You talk about libel through figures like Blackstone, English jurisprudence really continues up until Sullivan.

Carson Holloway (10:23):

Yeah. And it’s very important to talk about these sources, both I think because they really did inform the way the Founders thought about freedom of speech and of the press or freedom of the press. We’re talking about libel. It’s publication. I should just leave it at freedom of the press.

James Patterson (10:39):

Not expression.

Carson Holloway (10:40):

Yeah. Not only the way the founders thought about it, but the way the modern Supreme Court has talked about it, because certainly if you consider the text of the First Amendment, it is not dispositive on this question. It doesn’t really tell you anything about libel, and it doesn’t tell you under what standards libel cases should be contested. So you really have to think about what is the background to the language of the First Amendment, what was informing it. And the modern court has said, and it’s almost, I think fair to say, common sense to conclude that it was informed by the common law background to the American Founding. The Founders did not just invent all of these rights that are protected in the Constitution; they had an experience of English liberty that shaped their thinking, and that thinking is summarized in Blackstone’s Commentaries on the Laws of England.

(11:33):

And I find that he was very influential with many of the early American jurists who I discuss, and maybe we’ll talk about them as well. They have a pretty close to a Blackstonian understanding of this question. So what does Blackstone say in the Commentaries on the Laws of England? He first of all affirms that freedom of the press is essential to a free society. So that’s always worth keeping in view because related to what we were saying a few minutes ago, modern people who find you criticizing New York Times v. Sullivan think that you are rejecting freedom of the press. We are not. It is an essential principle. The question is, what is the scope of it, and what are the proper limits? Because everybody admits that there are some limits. So I mean, Blackstone defends freedom of the press, says it’s necessary to a free state, but he also says that it’s primarily to be understood as a freedom from prior restraints.

(12:27):

You can’t be stopped from publishing what you want to if you’re a free person, but that’s not to say, he says, that you can’t be held accountable legally for publishing something that is mischievous or illegal in its tendency, including libels or publications that damage reputation. And so he famously says, where libels are punished under English law, there is no infringement upon liberty of the press. And he’s also essential, I think, and at least I lay a lot of reliance on him for this elementary moral, political, philosophical distinction between liberty and license or liberty and licentiousness. The liberty of the press is the freedom to publish what you wish within certain decent limits. And going beyond those limits is no longer liberty. It’s a form of license or licentiousness that is just not protected. And so that’s how he viewed libel. It’s outside the scope. It’s beyond the pale, so to speak. And so as he says, there is no infringement on liberty of the press where a libel is punished under law.

James Patterson (13:35):

We see this with a lot of treatments of liberty, that there’s the use and the abuse, and that there would be no constitutional protection of an abuse, given that there is no right to protect. An abuse would be something that is without right. But the thing that I find, and this is a question, I don’t mean to lead you too much. The problem that the abuse with the press comes to is the right to reputation. And does this concept of a right to reputation have any cachet any longer? Is this something people even think about?

Carson Holloway (14:07):

That’s a very good point. I’m glad you mentioned that, and I’m glad you’re leading me on that. Very important to talk about. And it comes later in my argument in the book, I come back to that at the end, but I do think that that is an important distortion in our thinking. And what I mean by that is our failure to consider seriously enough that reputation should be thought about as a right. I mean, some of the modern opinions do go there, but for the most part, I think it’s pretty common to speak about reputational interests in the legal materials we have. And that already sets up a kind of weighting of the scales that’s not favorable to reputation because many people start to think along these lines that, well, there’s a right to freedom of the press, but then there’s reputational interests. You don’t have to be an expert moral philosopher to kind of be drawn along by the vibe that rights are more important than interests.

(15:04):

They’re more morally weighted than interests. And so it is important to recover the original understanding that reputation is a right and even a natural right. Now that’s in Blackstone, too. Of course, one could think hypothetically they’d be wrong that this is just a social construct or a legal construct, reputation, but the founders didn’t think that way, and Blackstone didn’t either. And I don’t think any sensible person would. What Blackstone says in the Commentaries on the Laws of England is that it’s a matter of natural justice to be able to protect your reputation. That’s pretty much saying there’s a natural right. The early American commentators that I looked at carefully for the book include people like James Wilson, James Kent, Chancellor Kent of New York, and then also Joseph Story, author of the famous Commentaries on the Constitution of the United States. They don’t use the term natural right, but they come so close that it’s very clear that they think reputation is a natural right.

(16:08):

I think Wilson is critical of the common law heritage in some ways, but part of his criticism is that it almost doesn’t take seriously enough the idea that reputation deserves to be protected in its own right. And then say somebody like Kent in his Commentaries on American Law refers to reputation as part of the inviolable rights of the person, language like that. And I think as somebody who’s interested in political philosophy, it makes a lot of sense to think about reputation as a natural right because it is rooted in our human nature. I mean, it’s directly humiliating to have your reputation tarnished without any further injury. In other words, you could disaggregate. This is actually pretty helpful to think about this. You could be harmed in your reputation in such a way that there are economic costs that are calculable. If you lose all your business and you can’t keep the lights on anymore, that can be demonstrated to a court.

(17:07):

But it’s also the case that it just hurts you to have a false and defamatory story out about you. And that’s recognized, I think, in the tradition of American libel law. I mean, that’s why there are often damages accorded even without having to demonstrate economic harm. It’s the idea that there’s an intrinsic harm to the person from the damage to their reputation. By the way, also on the topic of political philosophy, I find this whole line of argument fascinating because I, like a lot of people who study what we study are very familiar with Locke and the rights to life, liberty and property, and we might be tempted to think of the founding as drifting along a kind of individualist or in an individualistic direction and not taking human beings seriously enough as sociable animals. But when you look at the libel jurisprudence, you see that that’s not really the case.

(17:59):

The Founders were aware that humans are sociable by nature and that injuries to their reputation are just injuries to them. It’s part of our nature not to want to be disgraced before the community, certainly not unjustly. And so that’s part of what libel law protects.

James Patterson (18:16):

Yeah. I was listening to the Commentary podcast earlier today, and Eliana Johnson and John Podhoretz were describing how there are a lot of people who just come up in the Epstein files who have nothing to do with any of those things. They’re just in there. And the fact that they’re in these files is already a problem for them reputationally. So that’s part of when I was preparing the questions for this, the reputational right crossed my mind because it’s like, “Oh, well, it’s not a dead issue. We’re not fighting duels anymore, but maybe we should consider why they were fighting them.”

Carson Holloway (18:53):

And actually, just as an aside on that, I’m not an expert on these kinds of things, but I will say that’s part of the reason that the executive branch or prosecutors generally don’t release these reports because there’s a lot of unconfirmed alleged information in them that’s never been tested in court that could damage someone’s reputation. And then also in relation to that, though, you did provoke me to remember that the older libel standards were so protective of reputation that the privilege, privilege is like a legal term for exceptions to the ordinary liable rules, and there are some of them in the tradition. One of them was to publish about legal proceedings, so court proceedings. The older rules were so protective of reputation that that privilege was understood very narrowly. In other words, it was understood that you have a right to publish about legal proceedings that are in process, that are ongoing, but without any extraneous commentary of your own.

(19:51):

So in other words, if you’re publishing a news story about some guy who’s on trial for murder and you then editorialize on the evidence and say something like, “Yeah, well, it seems to me that any idiot would see that that guy’s guilty,” you’re opening yourself up not supposed to comment beyond the proceedings themselves. I mean, it’s a way of protecting reputation even of people who are accused of serious crimes. And the older school thinking on this, too, was that when it’s something really disgraceful and harmful to reputation, the person who’s the target of that deserves a chance to contest it in a court setting where there are rules of evidence and a chance really to prevail, which is not really the case usually in newspapers. People read it and it’s out there and then it’s too late.

James Patterson (20:37):

Yeah. If that had been the standard during the O. J. Simpson trial, I think Norm Macdonald would’ve been in a supermax prison by the end.

Carson Holloway (20:44):

He would be in trouble. Yeah, that’s right.

James Patterson (20:48):

No, so not only is this book attacking New York Times v. Sullivan, it does something even more shocking. So it even shocked me, which is, you defend the Sedition Act of 1798. What is going on with this defense? What is it that makes you think that maybe it wasn’t so bad?

Carson Holloway (21:10):

Well, I would maybe clarify a little bit there. There is a paragraph at the end of that chapter where I say this is not necessarily to defend the Sedition Act because it is reasonable to think that abusive things were done under it. But what I’m objecting to is, and this is a really interesting part of the book, so I’m glad you brought it up. What I’m objecting to is the use of the Sedition Act by the court in New York Times v. Sullivan. Now, we haven’t mentioned it yet, but it’s worth mentioning in passing or maybe more than in passing. It will help me to refer to him more. Very famous and highly regarded person, at least in some ways, is the author of that opinion, William Brennan. I mean, certainly a highly consequential American and one of the great liberal justices of his era, not someone of whom I’m a fan in terms of the results of jurisprudence a lot of the time, but he’s a famous American and a consequential one.

(22:06):

So he does deal with the Sedition Act. Let me try to explain why it’s important to his argument and why I dispute that argument, and that’ll show what I’m doing with the Sedition Act. Brennan has a few steps in the court’s opinion in New York Times v. Sullivan, in which he tries to get to the point, which is, I think, a departure from the tradition, but a point at which he can say that just because something is false and defamatory doesn’t mean it’s not protected by the First Amendment. And he tries to say that this is the lesson of the Sedition Act controversy of 1798 and the years after that, that’s when the Sedition Act was enacted by the Federalist Congress, because the Sedition Act did include a truth defense, right? The Sedition Act punished as seditious libel any publication that tended to maliciously, falsely defame the government of the United States or its officers, but by using the term falsely, it implicitly includes a truth defense.

(23:13):

And then explicitly in a subsequent section of the act, it says, “Truth can be pleaded as a defense against a charge of seditious libel.” Now, that’s a liberalization of the English common law standards. So that’s why I said earlier that I thought the founders were in the ballpark with Blackstone or words to that effect. They’re not exactly like him and in a way that we would probably approve because according to Blackstone, criminal libel doesn’t even have to be false. A thing could be criminally libelous even if it were true because he says the criminal libel law contemplates the threat to the peace, not the truth or falsity, and not the individual reputation. The Americans, and especially Alexander Hamilton, and I can talk more about him if you want me to later on, come around to the idea that truth really should be a defense even against a criminal libel charge, and that’s reflected in the Sedition Act, and that’s why the ones who defended it, including some prominent Federalists, could regard it as not a problem and a liberalization of the prevailing standard because it does include that truth defense.

(24:22):

Now, however, going back to something that is true and something that Brennan makes a lot of in the Sullivan opinion, despite including the truth defense, the Sedition Act was highly controversial and hated by some highly important and much to be revered Americans, namely Thomas Jefferson and James Madison, who argued strenuously that it was unconstitutional despite that. So what Brennan does is to say that he thinks that this shows. I mean, he thinks basically that the Sedition Act controversy crystallizes the meaning of the First Amendment as it was understood at the time of the Founding. I think that’s what he’s trying to do there and provide a kind of originalist … He doesn’t talk about originalism in explicit terms, but I think this is his effort to find a kind of Founding-era anchor for what he’s doing.

(25:15):

So my response to that is to say in my chapter on the Sedition Act controversy that I don’t think it’s so obvious that the Sedition Act was unconstitutional, whether or not it was a good idea. And there were some people like Chief Justice Marshall who, judging from their letters, thought that it was constitutional, even though it was a bad idea. He was pretty clearly a political critic of it, but let me explain that just a little bit more. What Brennan says is that the Sedition Act was found unconstitutional in the court of history because of this movement against it that seems to have settled the public mind against it in the early nineteenth century. And what my chapter is basically saying, not so fast there, Brennan. First of all, it’s easy to say, or it’s helpful to say for him that it was found unconstitutional in the court of history because no real court found it unconstitutional.

(26:10):

I mean, there were prosecutions successfully under the Sedition Act precisely because some federal courts found it to be constitutional, including highly capable and reputable people who I cite like Justice Iredell, who was involved in one of the cases, the Fries case, and in his instructions to the grand jury in that case, took on the whole argument about the unconstitutionality of it and gave a defense of its constitutionality, both in terms of the unamended constitution, but also in terms of the First Amendment. I could talk a little bit more about that if you want me to, but I’ll wait until you seek further detail on that. But to come back to the big picture, all I want to say in that chapter is that whether the Sedition Act is unconstitutional according to an originalist understanding is really a murky question because the quality and kind of stature of the people defending it and the people attacking it are about equal.

(27:08):

And so I find that it’s not a sufficiently clear case for the Court to come along a century and a half later and say, “Well, this proves that this is the right way and the other way was wrong.” There’s no ruling from the time on which they can hang their hat. Brennan kind of relies on a practical construction argument, you might say by saying, “Well, as President Jefferson pardoned everybody and Congress later paid back the fines.” I go, “Well, that’s all true, but it’s also true that Adams signed it into law as president and Congress enacted it.” And the judiciary at the time imposed the fines because they thought it was constitutional. So it’s sort of a mixed record of argument at the time of the Founding. And whatever you think about it, I guess I’m implicitly operating from a standpoint of judicial restraint that I don’t think the Court should, in the 1960s, be inventing a new rule based upon a mixed record like that.

(28:09):

And of course, the rule itself doesn’t even come from the Sedition Act controversy. That’s something else entirely that they’re deriving from other sources.

James Patterson (28:18):

So you anticipated a question I had about how truth became a defense of libel cases. So maybe give a summary of case law prior to Sullivan you examine and maybe how these judges and justices conclude very differently from the way Brendan does in Sullivan.

Carson Holloway (28:33):

Yeah. Of course, just as an aside, Blackstone does say that truth should be a defense in a civil case. If it’s a criminal, he says, if the thing is true, there’s really no injury to your reputation that’s cognizable in the civil law. If it’s a criminal case, then it is a problem because they’re worried about breach of the peace.

James Patterson (28:51):

But seditious libel is a problem in the United States because it’s a republic and there needs to be some degree of criticism because in order for there to be public deliberation at all.

Carson Holloway (29:02):

That’s another argument too that’s interesting. And there’s division of opinion on that. I mean, what you just said is a great statement of the way somebody like Madison talks about it.

James Patterson (29:11):

I’m giving away my biases.

Carson Holloway (29:12):

Yeah, yeah. And that’s a very powerful argument, although I think it’s fascinating that there’s an argument on the other side. Justice Iredell in that instruction to the grand jury that I mentioned says just about the opposite. He says that in a republic, the government depends upon the good opinion of the people, and therefore, it’s okay to have a seditious libel law. Of course, this is abstracting from the other thing you asked me about, which is the truth defense. I think it does make a lot of sense to say that in a monarchy where they try to foster veneration for the government, then maybe you would have a … I mean, it’s intelligible within that kind of regime to have a law even against true libelous remarks. It would never make sense in a regime like ours where people need to know the truth to make judgments about whether the government’s doing its job.

James Patterson (29:59):

Yeah. So seditious libel makes sense in North Korea, but not in the United States.

Carson Holloway (30:03):

Yeah, yeah. Seditious libel is a specific … It’s a specific subcategory of criminal libel. And so let’s talk about how this changed. Well, it does involve a, well, not exactly a seditious libel case, but it involves a criminal libel case. The most famous one is People v. Croswell, which is a New York libel case in the early nineteenth century in which Alexander Hamilton was involved. And in the initial stages of it, it’s pretty murky too, but it ends up that Hamilton wins. So he argues strenuously in that case as the lawyer for the defendant that truth should be a defense against a libel charge in a criminal proceeding. And he argues that famous sentence, he says, “Truth is an essential ingredient in the moral order of things,” or something like that. I don’t remember exactly how it is, but he thinks that on general moral principles of justice, somebody who has published something that’s true and is in danger of being prosecuted for that ought to be able to plead the truth of it.

(31:11):

And another famous American who’s involved in that case, someone I’ve already mentioned, is James Kent. Kent was a judge in that case. So Kent agrees with Hamilton on that. And then there was another opinion by one of the judges who defends the older common law standard. So opinion’s mixed. What ends up happening? Here’s why I said it’s murky, but then it becomes clear. It’s a split decision, so they’re not able to overturn the original conviction. To that extent, no new ground is broken. However, later, New York passes a new law that adopts the Hamiltonian standard and then later changes its constitution to adopt the Hamiltonian standard. And then much later, in a not as well-known libel case from the nineteenth … Well, whether it’s a libel case or not, I’m not going to say, but it’s a Supreme Court case. Beauharnais v. Illinois, I think, deals with a kind of group libel law.

(32:06):

And in that, one of the concurrences in that case, Justice Robert Jackson says that Hamilton’s view in the Croswell case became the common sense of American criminal libel law. So the drift after that is in the direction of a truth defense, a qualified truth defense, but I think the Croswell case is the kind of turning point and Hamilton is credited for that. But as I wind up here, let me say why I said a qualified truth defense. What Hamilton says and what ends up being reflected in the law in many jurisdictions in these criminal libel cases is truth published with good motives and for justifiable ends. So on that kind of founding era, American understanding, there’s still some sense that a true publication could be libelous and injurious if it were just say purely malicious or purely for the sake of trashing somebody’s reputation. They still got, and this also is interesting because it shows how protective they were of reputation.

(33:08):

They think that there needs to be some good justification for dredging up something disgraceful about somebody, even if it is true. So that’s the Hamiltonian formulation, truth published with good motives and for justifiable ends.

James Patterson (33:24):

Yeah. And the thing about the development of American case law on this, as you demonstrate in the middle of the book, is that not only does the sort of American revised version of Blackstone on libel persist, the rationale that Brennan raises for his version is raised and dismissed. They don’t like the actual malice standard. They don’t think the burden of proof should be distributed that way. So maybe talk about some of those cases to sort of strengthen the position you’re in.

Carson Holloway (33:58):

Yeah, there’s two chapters on the history. And in a way, I mentioned the Dobbs ruling earlier, that ruling, that opinion by Justice Alito frames itself as an inquiry into the text, original understanding, and historical understanding. Justice Thomas does that, too, and some of the opinions on the Second Amendment. So I’m kind of taking that framework and there’s not a lot on the text because as I said, it’s not really dispositive. It’s underdetermined on this question. So then I turn to the original, what I think is the original public meaning as you can discern it from sources like Blackstone, Kent, Story, Wilson, and others. And then I turn to the history and there’s two chapters on history, one of which deals with Supreme Court cases, but the first one deals with state cases. And it doesn’t claim, and I’m not making any pretense that this is like an exhaustive survey of American state libel cases. That would be a really long book.

James Patterson (34:52):

This is the book, No Liberty to Libel, and it is a tight, what, 200 pages?

Carson Holloway (34:59):

It’s about 200 pages.

James Patterson (35:01):

No tome for sale at Encounter Books. People should buy this and bring it with them.

Carson Holloway (35:06):

Right. Yes. It’s easy to transport and hopefully easy to understand. So that chapter on state cases, like I say, is not meant to be exhaustive, but it’s illustrative. I wanted cases that illustrate the traditional standard. And again, even the defenders of New York Times v. Sullivan admit that it’s a departure from the traditional standard and that even Brennan admits, I believe in the opinion that the older majority rule in most of the states was a lot more restrictive. So that’s what I’m illustrating is what scholars have called the majority rule. Yeah, there’s a case in the early nineteenth century, a New York case, King v. Root, which involved a libelous publication about, I think the lieutenant governor or the attorney general. I’m not sure right now which one he was.

James Patterson (35:53):

And the lines from the journalistic story you provide are fun. The eyes are bloodshot. It’s like rum flex spittle, just like, oh, it’s like, why don’t we get yellow press stuff like this anymore? This is fantastic.

Carson Holloway (36:12):

I have to admit, I do quote some of that stuff for the entertainment value, pretty florid. That’s one that’s important. And then later in the nineteenth century, there’s Post Publishing Company v. Hallam, which involves an opinion by another great and important American, William Howard Taft, who of course went on to be president and then chief justice of the Supreme Court. But at this point, he was an appellate court judge, and he dealt with this case. And like you say, there’s something like a special privilege for the press that’s asserting itself in these cases, but is being repudiated by these judges. Now, it’s not exactly the actual malice doctrine because that’s sort of distinct, but it’s in that direction.

(36:57):

They’re saying things like, “Well, we’re newspapermen, and it’s part of our job to provide information to the public. And so we should be treated more leniently than other people who might’ve libeled somebody even if what we said was false.” And basically, the judges are not having any of that. Over and over again, they get these arguments made in defensive claims that are libelous and that seek to shelter the press from the kind of ordinary scrutiny that you would get under the standards at that time. And the judges just push back and say, “Well, those are not the legal standards that exist in the United States. And you don’t get any special protection. And basically, if what you said was false and defamatory, you’re going to lose. And there’s nothing like any kind of actual malice extra step for you to justify what you’re doing and to protect you.: So yeah, that happens. And I try to show that in that part of the book.

James Patterson (37:52):

Another feature of these historical decisions, and it comes up at the end in the afterword, is that there are harms to the actual malice standard. And the one that I kept seeing coming up and that you later referred to in the afterword is that allowing for the actual malice standard actually creates incentives for people not to want to run for office, right? Because they’re going to be smeared. And the people who will run for office are people who don’t care about being smeared, who aren’t necessarily who you want.

Carson Holloway (38:28):

Yeah, that’s a great point. And I thought of that when I first started thinking through criticisms of New York Times v. Sullivan. In other words, that, if you think kind of pragmatically, which is a distinct kind of argument from the originalist argument, which is concerned with what was the original public meaning of the First Amendment? How did that relate to libel? But you start thinking about what would be the reasons for a stricter standard? What would be the reasons for finding fault with the consequences of the actual malice standard? This would be one of them, that you’re going to have to surrender the protections to your reputation that you would have if you remained a private person. And so yeah, one consequence of that is that people who are particularly sensitive to their reputation may be deterred from public service, and people like that may be highly honorable people and it’s not good for your political community.

(39:23):

So I thought of that argument when I wrote the article that was the first basis for my argument. But the other thing I want to emphasize here, James, is that I was pleased to see that I am far from the first person to have thought of that consequence because just along the lines of what we were just talking about a minute ago, those older judges who defend the stricter libel standards in the early nineteenth century, in the later nineteenth century, even into the twentieth century will point this out. They’ll say that if you don’t protect the reputation of public men, then the best men are not going to want to go into public life. And the people who will go in won’t be as good. I think the appellate judges in that King versus Rip case that I mentioned make that very point that no honest man could go into public life if this were the standard because the newspapers could just trash your reputation and you’d have really no effective remedy for that.

(40:18):

And Taft says it, too. So I think it’s worth thinking about that. And it’s just part of what the modern court has done. They’ve done it quite consciously. Yeah, my book talks a lot about New York Times v. Sullivan, but it also talks a bit about the follow-up case, Gertz v. Welch, in the middle part of the 1970s, 1974, which is a case that kind of solidifies the status of the doctrine. And in that case, Justice Powell wrote the opinion, and he flat out says that the court doesn’t think that the reputations of public people deserve as much protection because they’ve kind of tacitly consented to these higher risks to their reputation. And it’s not a great deal as far as I’m concerned, at least to be rethought. And certainly my other point would be whatever you think about the substance of that kind of normative judgment, it is a normative judgment that the court came up with in 1974 to further prop up the actual malice doctrine. It’s not a normative judgment that you find being made by the Founders to justify that standard because they didn’t defend that standard.

James Patterson (41:26):

Do you think a lot of the details behind Sullivan and its passage have to do with the case itself? I mean, of a racist Alabama sheriff and the civil rights organization that publishes an ad in the New York Times is on the side of the light. It makes some mistakes and some overstatements. So this is a case of maybe weighing the scales a little bit to protect the civil rights movement.

Carson Holloway (41:56):

It is a case arising out of the civil rights movement. It is a civil liberties case because it has to do with freedom of the press, but it clearly arises out of the civil rights movement for the reasons you mentioned that the occasion for the case is the ad in the New York Times, “Heed Their Rising Voices,” which was a defense of Martin Luther King and a criticism of the officials of Alabama. Sullivan was the city commissioner in charge of the Montgomery Police, and he felt like his reputation was tarnished by that ad because of its criticisms of the police department, some of which were erroneous, as you said, and that was the opening for the case. And so yeah, I think the court at the time was worried about some other considerations besides just getting the case right according to traditional legal standards. Now, it might have been the case that they could have ruled against Sullivan anyway. Justice Thomas says that in his criticism that he thought that it wasn’t even clear from the factual record that the publication was of and concerning L. B. Sullivan because he wasn’t even mentioned by name. And other people have made the point, too, that being presented as a kind of strenuous segregationist wouldn’t even have hurt his reputation in Alabama at the time. And also in the record—

James Patterson (43:14):

That’s my favorite one. It’s like, oh no, this is what they want. They want you to be like this.

Carson Holloway (43:20):

It’d help to get reelected probably. It’s also the case that I think in the original trial when they asked some of his witnesses, “Did you believe this stuff?” They said, “No, we didn’t believe that. We knew that stuff wasn’t correct.” So it’s not really a great—

James Patterson (43:34):

Right.

Carson Holloway (43:34):

Case of injury to his reputation, certainly to justify the large value of the damages that were awarded. So I think the justices were concerned about that. And not only that, but there were a number of other libel cases coming out of the state that were similar in its character that perhaps that would’ve come out much differently unless you change the standards to actual malice. I think that’s part of what they’re thinking. They’re worried about abusive state-level libel cases being used to shut down coverage of the civil rights movement, some of the most important things going on in the country at the time. So they had a kind of political, I think a high-level, serious prudential political reason for wanting this to go the way it did. And I don’t entirely fault them for that, but I stand by my argument that they’ve revised … You may see one of … Another good part of the book, which is not me, is the quotations at the very, very beginning, one of which is from Justice Scalia in an interview where he says they were revising the Constitution. That’s my contention, too. They might’ve had a good reason in their own minds to think it was necessary, but they were revising, not interpreting.

James Patterson (44:53):

Do you think that Sullivan as a case is also a bit of a relic of its times? And I mean this, especially in the sense that it’s coming out at a time when mass media, right? Print, paperbacks, radio, movies, television, this is a kind of media environment that’s very different from today. And so a revision is also necessary that even if it was wrong then, it feels even wrong-er now in a world of cancel culture and searchable PDFs with Epstein files. And it seems like it’s even more difficult to sustain.

Carson Holloway (45:29):

Yeah. I mean, certainly things have changed a great deal since then. The media … Well, first of all, yeah, everybody can publish who wants to now because of social—

James Patterson (45:39):

Right.

Carson Holloway (45:39):

media, things like that. And so there’s a lot of … Well, it’s the case that the First Amendment protects everybody, not just the credentialed press. And at that time, the credentialed press was pretty much the whole ballgame as far as communicating with the whole country, and that’s not the case anymore. So there’s just all kinds of defamatory stuff going on uncontrolled because as long as it’s said about public figures or public officials, very hard to do anything about it. That’s one important change. I think it’s also a relic of its time going back to the whole originalist argument because to me, and I know there are people who would maybe want to contend with me on this, but I’m telling you what I think. It seems to me that if you—

James Patterson (46:22):

It’s your podcast, Carson. You do that. All right. We can interview other people if they want to come on in.

Carson Holloway (46:29):

Okay. Yeah. Thank you.

(46:31):

Obviously, there’s been a kind of restoration of originalism as a method of constitutional interpretation. I think from reading the early efforts of the court and what some of the founders said that they expected an originalist interpretation of the Constitution. But with that mid-twentieth-century court, they just are almost completely untethered. I mean, they don’t care. It’s pretty shocking actually. And it’s even more true, I think, of the court as it moves forward, like the Gertz v. Welch Court. I mean, there’s a couple of references to Jefferson for window dressing, but other than that, Justice Powell is not rooting his opinion in the original understanding of the First Amendment. So this kind of generation of constitutional lawyers at the time just was not interested and they had a whole other approach. And you can tell that from Brennan’s opinion and everybody else’s opinion in the case for that matter, because Times v. Sullivan was a unanimous verdict.

(47:28):

Not everybody agreed on the reasoning. Some of them were more radical than Brennan, like Black and Douglas who thought that there just should be no libel cases at all under the First Amendment. But there’s not a lot of careful principle attention to the original meaning. And I think that’s been recovered, and that’s part of the reason why I’m trying to make this argument at this time. If you really believe in that, I think you have to rethink this case as well as the others.

James Patterson (47:53):

The Roberts Court seems to be going through a kind of great repealing of cases that the justices regard as just simply wrongly decided. And it’s not just the Dobbs decision. It’s also Kennedy v. Bremerton. We’re just seeing this. And is there some irony to conservatives on the court jettisoning stare decisis?

Carson Holloway (48:18):

Well, I mean, it is an obvious kind of facial tension. There’s a justification you can give for it, which is if the precedent in question was a departure from the original meaning, then if you really believe in that as the proper approach, then you would feel duty-bound to reverse and to go back and rethink these things. Now, I said at the beginning that they’re more pragmatic than that, and that’s why I have a whole chapter at the end arguing that even if you want … Well, the chapter at the end is saying, I understand that the originalist deficiencies of the Sullivan opinion are not enough for practicing justices to necessarily overturn it. They also need to be shown that it’s harmful in its tendencies and that its reasoning is so poor that it deserves to be junked the way these other ones have.

(49:09):

And so I tried to spend some 20 or more pages on that in that last or second to last chapter, trying to show that. I think it’s just an act of judicial policymaking untethered from any kind of objective source of law. It’s basically the standard they wanted, and they created that standard because they wanted it and thought that it was the best balancing of the interests without trying to figure out what was the balancing of the interests or principles or rights that would’ve informed the way the founders thought about it. But yeah, there are limits to what you expect them to do. And overturning every erroneous precedent is a lot to expect, and I don’t know if they’ll do that. And I don’t know if they’ll do it in this case even, but I thought it was worth making the argument.

James Patterson (49:53):

So I’ve got five questions I’m just not going to be able to ask because we’re running out of time. So I’m going to ask the most important one that I have left, which is, what hope is there that Sullivan will be overturned?

Carson Holloway (50:07):

I don’t know. I couldn’t assign a percentage, but I wouldn’t have spent the time I did on the book if I thought there was no hope at all.

James Patterson (50:15):

I guess that’s true.

Carson Holloway (50:15):

I would say, however, that I’ve given some talks on the book, and I feel like even if there were no hope at all, it’s still an instructive exercise because for purposes of civic education and even philosophic education, if you want to call it that, it is very interesting to think through the older standards and the moral principles that informed the older standards, including a strict protection for reputation and the sense that every man or woman is presumed to have a good reputation and the burden of proof falls upon the people attacking the reputation to show that what they’re saying is true if they get hauled into court. That’s all been jettisoned in modern culture. And the prejudice today is to think that if it’s true, you definitely have a right to say it, or even if you happen to think it’s probably true, you have a right to say it without confirming it.

(51:07):

So it’s a very interesting exercise and helpful, I think, to recover the older standards regardless of what the Court does. However, I would say that I don’t think it’s a zero chance that they would return or revisit this question because there’s clearly a majority that thinks that originalism is the correct approach. And if you think that, then I believe you have to rethink this case as well. And that’s the reason I wrote the book.

James Patterson (51:37):

Yeah.

Carson Holloway (51:37):

If we try to go into numbers, we know there are two who have said that they’re willing to think this through. One is Justice Thomas, the other is Justice Gorsuch. We don’t know much beyond that. You would need three more votes. I tend to think that Justice Alito is somebody who might rethink it because of his dissent in Snyder v. Phelps, the Westboro Baptist Church case, which showed a certain independence of mind and unwillingness to go with the crowd there. It’s a tough case though or a tough question because on the one hand, there is a majority that seems to be interested in a principled approach to originalism. On the other hand, it is also the case, and you still see evidence of this, that for the last two generations, almost all of the justices on the Supreme Court, conservative and liberal, have bought into something leaning in the direction of free speech absolutism, which is just not what the First Amendment stood for because there were understood to be limits to what was permissible, intelligible limits that still maintained a robust realm for public discourse, but protected the rights of individuals, and interests of the community.

(52:48):

So it would be a big change for them and they would think hard about whether they’re going to do that. So I don’t know, we’ll see. A lot hangs on if anybody pays attention to my book.

James Patterson (52:59):

Yeah. Well, first of all, obviously everyone’s going to pay attention to No Liberty to Libel by Carson Holloway, available on Encounter Books. But also, I mean, think about the reputation of the press in the ’60s and ’70s versus today. I mean, there’s considerably less, I think, good feelings, right? There’s less trust in their ability to exercise this great charge than there used to be.

Carson Holloway (53:25):

That’s true. Their reputation is not as good as it used to be, which suggests that they’re not living up to the proper standards.

James Patterson (53:32):

Yeah. So you’re just doing them a favor and restoring a standard so that they can get their reputation up, too.

Carson Holloway (53:40):

I’d like to think of it that way. Yeah.

James Patterson (53:42):

Dr. Carson Holloway, thank you for coming on to the Law & Liberty Podcast.

Carson Holloway (53:47):

Well, thanks for having me.

James Patterson (53:49):

Thanks for listening to this episode of Law & Liberty. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.