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Publication Date

4-3-2026

Document Type

Article

Abstract

Justice Clarence Thomas appears to be on a mission to reconsider the actual malice standard adopted sixty years ago by the Supreme Court of the United States in New York Times v. Sullivan. And Thomas has not been a lone voice crying in the wilderness—others also have questioned New York Times. While New York Times represents a big shift in the law for those cases to which it applies, the scope of its precise holding is relatively narrow—New York Times protects publications about the official conduct of public officials.

Moreover, focusing on the precise facts in the New York Times case narrows the holding even more. The libelous advertisement published by the New York Times criticized the City of Montgomery’s official response  to the local manifestation of the Civil Rights Movement. The publication never named the plaintiff J.B. Sullivan and was never proved to cause any specific harm. Thus, while plaintiff Sullivan’s civil suit against the New York Times masqueraded as a private libel suit, it was, in essence, a prosecution for seditious libel (libel against the government), and New York Times held essentially that such seditious libel prosecutions are unconstitutional.

This Article argues that such prosecutions for seditious libel had always been distinguished in America from private libel actions. And the inverse also is true; unlike defamatory publications about individuals, criticisms of government have always been especially valued in America. Therefore, the core holding of New York Times is that the First Amendment protects personally harmless publications criticizing the government, works no great innovation in American defamation law. To demonstrate this point, the main body of this Article will show that many Anglo-American thought leaders throughout the Eighteenth and early Nineteenth centuries saw and emphasized this important distinction between libeling a human and libeling the government, with the latter’s being more worthy of more protection.

After this brief introduction, this Article will first survey the holding in New York Times v. Sullivan. Then the Article will review the history leading up to and immediately following the adoption of the First Amendment with an eye to the important historical distinction between seditious libel and libel of a private party. Then the Supreme Court’s post-New York Times blurring of this important distinction will be noted before the Article concludes briefly.

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