Below is the abstract for “Warren/Burger Courts Exalted “Free” Expression Over Other American Values,” available for download on SSRN. This is an updated version of the article shared on The ALI Adviser on April 6, 2022. 

Four values coexist within American defamation jurisprudence — 1) condemnation of evil speaking, 2) support for truth, 3) fostering responsible self-government, and 4) fostering free expression. The first of these values, condemnation of evil speaking, was the original defamation law value. A second American value, support for truth, also was incorporated into American defamation law at a relatively early date. But even though truth was a complete defense to a defamation claim, the truth of the published statement was secondary to its “not niceness”; therefore, if the statement was defamatory, falsity was presumed (along with presumed injury to reputation). A third American value, responsible self-government, also impacted the development of American defamation law. Unlike defamatory publications about individuals, criticisms of the government and of a candidate’s qualifications for office have long been especially valued in America. These three values held sway over American defamation law for more than a century.

But the Supreme Court of the United States changed all that in 1964 with its landmark decision in New York Times v. Sullivan. New York Times recognized for the first time that the United States Constitution protects some defamatory falsehoods. A fourth value, free expression, thus emerged triumphant over the others. Under the rule of New York Times, injuring another by publishing a false and defamatory statement no longer necessarily subjects the publisher to prima facie liability. Then, in a breathtaking series of decisions following New York Times, the Warren and Burger Courts continued to chip away until it had layered a complex constitutional jurisprudence of free expression over common law defamation doctrine. When the Court had finished its restructuring of defamation law, much of the common law protections for defamation victims had been displaced. As a result, even careless publishers need no longer necessarily fear responsibility for publishing things “not nice” (and not true) — they now are free of responsibility for destructive defamatory falsehoods unless the victim can prove that the publisher was subjectively aware that the defamatory publication probably was false.

This article will add my voice to the chorus criticizing the New York Times actual malice standard, particularly as implemented in the subsequent line of Supreme Court cases, as a fundamentally flawed and unnecessary rule. My focus will be on the New York Times decision’s fundamental shift in defamation law away from the presumption that publishers ought to be responsible for their harmful words (Thumper’s Rule) when those words turn out to be false and substituting instead a presumption that a publisher can publish whatever defamation it likes without responsibility unless the victim can prove that the publisher subjectively doubted whether the statement were true. After a brief Introduction, section II summarizes the development and status of defamation law before 1964. Section III then reviews the Warren and Burger Courts’ extreme makeover of defamation law. Section IV briefly concludes.