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08/03/2019

David Rivkin and Andrew Grossman on Originalism and Libel
Michael Ramsey

In the Wall Street Journal, David B. Rivkin Jr. & Andrew M. Grossman: An Originalist Libel Defense.  From the introduction: 

Mr. Trump said in 2016 that he wanted to “open up” libel laws, and in February Justice Thomas wrote a solo opinion arguing that [New York Times v.] Sullivan departs from the Constitution’s original meaning. He has a point: [Justice' Brennan’s reasoning [in his opinion for the Court in that case] is all policy. For decades, originalists like Justice Antonin Scalia have criticized it as an exercise of raw judicial power. Yet there’s a good originalist case for limits on libel law.

And from further along: 

[P]laintiffs often did have to prove actual malice to prevail. The law recognized circumstances in which a libel defendant could assert a “qualified” or “defeasible” immunity from damages and thereby put the plaintiff to the burden of proving “express” or “actual” malice under more or less the same standard Sullivan prescribed. One musty treatise, published in 1877, reports such immunity applies whenever the speaker has a “legal, social, or moral” duty to comment on another’s character, fitness or conduct, including in matters of business, crime, morality or religion. Moreover, libel claims concerning government officials’ conduct were often subject to the actual-malice standard, as were claims for punitive damages. Sullivan’s reasoning was loose, but it didn’t fashion actual malice out of whole cloth.

In conclusion:

Modern originalism is young, and answers to these questions of original meaning often involve some doubt. Yet the Sullivan court might have stumbled onto a standard that comports with the Constitution.

(Thanks to Michael Perry for the pointer).