Though many have heralded Sullivan as a landmark ruling in defense of First Amendment freedoms, in No Liberty to Libel, Carson Holloway argues that the Supreme Court erred dangerously in its interpretation of the Constitution. Holloway contends that the Court should revisit and reject the Sullivan doctrine.
Holloway demonstrates that the Sullivan doctrine’s two-tier system of libel law—with one standard for ordinary persons and another for the prominent—has no roots in the original understanding of the freedom of the press, or in the tradition of American law that prevailed for most of our history. This tradition held more simply and consistently that libel was an exercise not of liberty but of license, and hence outside the scope of the freedom of the press.
A Supreme Court committed to interpreting the Constitution faithfully—that is, according to its text, original meaning, and historical understanding— must reject New York Times v. Sullivan as a product of judicial policymaking untethered to the real meaning of the First Amendment.