No Liberty to Libel

Carson Holloway’s No Liberty to Libel makes an originalist case for overturning New York Times v. Sullivan, the landmark 1964 court decision that transformed American libel law. The decision claimed to be aimed at ensuring “uninhibited, robust, and wide-open” debate. But the standard for finding statements libelous, at least for public figures, was very high: “actual malice.”

Holloway wants the decision overturned, on two grounds: judicial overreach and original meaning. Like many critics of Sullivan, Holloway sees the decision as a constitutional innovation masquerading as interpretation. The “actual malice” standard Justice William Brennan created—requiring public officials and public figures to prove that a publisher either knew a statement was false or acted with “reckless disregard” for its truth—was, Holloway contends, simply invented by the Court. Worse, there is no means of squaring that interpretation with the original intentions of the Framers of the First Amendment, or the historical traditions of Anglo-American libel law.

That argument is not absurd, but it is wrong. Here’s why: the Founders were a “they,” not an “it.” This claim, which is true of all groups, is a central axiom of public choice theory. It is a particular problem, though, for any perspective which attempts to use “what they thought” as a justification for coercing others.

The most important political example is “legislative intent;” one version of that is “originalism.” A number of scholars and judges have advocated for originalism, with one of the most forthright being ​Justice Antonin Scalia: “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”

Legislative interpretation is necessary, of course, because judges have no alternative to looking at the constitution and at statutes and then applying their meaning to legal situations. One way to do this would be to look at the words, just as would be done for any contract. What do the words mean, and how should we interpret them?

The notion of legislative intent is narrower, because it requires that judges look at a text and then reach a conclusion about what the people who wrote that text meant by those words. To determine that meaning, of course, it is necessary to go to history, either for context or for speeches, letters, or eyewitness accounts that can tell us about meaning. “Originalism” is an approach that requires the interpreter to understand and apply the language of the law as that language was intended by the “original” drafters.

That would make sense if Congress, or the Constitutional Convention, had been an “it.” But in each case, those there “theys,” with a variety of viewpoints. There are two important problems with the idea of a single interpretation: log-rolling and ambiguity. Log-rolling means that in many cases two provisions, neither of which command even a majority, are both passed because two groups agree to cooperate. Ambiguity means that the language is intentionally drawn broadly enough that a majority will vote for the opaque, vague language even though there is literally no specific language that would have passed.

Taken together, those two problems mean that the very idea of “original intent” is logically incoherent: “They” didn’t mean any one thing, and the attempt to divine a meaning is simply a category mistake.

Consider a simple example, voting on a budget: Some members want to spend $4M, others want to spend $8M. To get a majority, we report out a budget of $6M, which only one member wants. The law dictates $6M is “the” budget, even though almost no one wanted that spending level. The result is a compromise, a requirement of the “median voter theorem.”

The same logic applies to words, though the difference is less sharp-edged. If there is disagreement—the Framers were a they, not an it—then broad, ambiguous language might allow agreement. But then the words must be interpreted, and that can be difficult, precisely because the ambiguity was necessary to get agreement in the first place.

In the case of freedom of the press, the First Amendment seems unproblematic, because the language is actually unambiguous: “Congress shall make no law . . . abridging the freedom of speech, or of the press.” There have been people—Justice Hugo Black, for example—who looked at those words and said, “No law means NO LAW.” But others—most others, to be honest—have argued for a whole dog’s breakfast of exception and equivocations. Justice Robert Jackson’s “The First Amendment is not a suicide pact” or Justice Oliver Wendell Holmes’ “shouting ‘fire’ in a theatre and causing a panic” are limits on what can be written or said. About half of American adults, and most young people, believe (wrongly) that the First Amendment has a “hate speech” exception.

There is obviously no way to get that out of the words of the Amendment itself, so opponents of free speech resort to some version of “legislative intent,” especially in its “originalism” form. The problem with legislative intent, though, as I argued above, is that it rests on a category mistake: groups can’t have intent. It’s a category mistake.

So, what originalists do is troll old sources, looking for quotes or statements that support the result they prefer, while ignoring contradictory statements as inauthentic. P. M. Wald (“Some Observations on the Use of Legislative History in the 1981 Supreme Court Term,” Iowa Law Review 68 [1983]: 2) wryly noted that this process often implies far more than it actually proves: “It sometimes seems that citing legislative history is still, as my late colleague Harold Leventhal once observed, akin to ‘looking over a crowd and picking out your friends.’”

Holloway looks over the crowd and finds several friends. The most important is William Blackstone’s Commentaries, with which the Founders would certainly have been familiar. Blackstone defended freedom of the press as instrumentally necessary to a free state. But he understood it primarily as a freedom from prior restraints—you cannot be stopped from publishing, but you can be held legally accountable for mischievous or illegal publications, including libels that damage reputation. Blackstone drew the liberty/license distinction: publishing within decent limits is liberty; going beyond them is licentiousness and is simply not protected.

Holloway also argues reputation is not merely a legally cognizable interest, something that might be balanced, but a right. Indeed, Blackstone says it is a matter of natural justice to be able to protect your reputation. Early American commentators—James Wilson, Chancellor James Kent, and Joseph Story—come close to the same conclusion, with Kent referring to reputation as part of the “inviolable rights of the person.” Holloway argues that framing reputation as a mere “interest” versus the “right” to press freedom already tilts the scales unfairly before the analysis begins.

The book usefully surveys pre-Sullivan libel cases—state and federal—to show that both the traditional standard (false and defamatory publication = actionable, full stop) and the moral reasoning behind it persisted well into the twentieth century. Early nineteenth-century New York cases and William Howard Taft’s opinion in Post Publishing Co. v. Hallam rejected proto-“actual malice” reasoning when press defendants tried to claim special protection. Over and over, these judges pushed back: there is no special legal standard protecting the press from the consequences of publishing what is false and defamatory.

One of Holloway’s most provocative sallies is challenging Brennan’s use of the Sedition Act of 1798 as a founding-era anchor for the actual malice rule. Brennan treated the Act’s ultimate political repudiation by Thomas Jefferson and James Madison as proof that the First Amendment had always meant something like the Sullivan rule. Holloway responds that the constitutional status of the Sedition Act was genuinely murky: courts upheld it, including jurists of the stature of Justice James Iredell, while John Adams signed it and Congress enacted it. The record is too mixed for the Court to pluck from it a clear ruling that falsity alone cannot ground a libel claim. I found this remarkable: if your case for more muscular libel law requires a defense of the Sedition Act, you might be overreaching. Obviously, many of the Founders supported the horrific and indefensible Sedition Act. If that’s “originalism,” then originalism is rubbish.

Paradoxically, having said that rights admit of no balancing, Holloway then argues that First Amendment rights must be balanced against “bad effects.” The actual malice standard may deter honorable people from public life: those most sensitive to their reputations—perhaps the most honorable—are the ones most likely to stay out of public service when they know that false and defamatory stories can be published about them with impunity. This concern was actually voiced by the pre-Sullivan judges themselves.

In the interests of full disclosure, I must note that I am an extremist on these questions, and that Jonathan Turley’s refutation of Holloway’s argument and demolition of Blackstone entirely persuaded me. I have no idea what Prof. Holloway thinks of these arguments, because Turley’s 2024 book The Indispensable Right: Free Speech in an Age of Rage (Simon and Schuster) is not even referenced, much less accounted for. Turley gives a detailed account of historian Wendell Bird’s work documenting American prosecutions for seditious libel in the colonial and early republican period and argues that Madison intended the Speech and Press Clauses to supersede, rather than perpetuate, the Blackstonian framework Holloway treats as foundational.

That’s rather significant: If Madison understood the First Amendment to put an end to seditious libel as a category, then Blackstone’s framework—which Holloway treats as the background meaning the Founders shared—may already have been repudiated at the Founding itself. How’s that for “originalism”?

This is not a merely academic objection. The Founders were not Blackstone’s faithful students; many of them, as Holloway concedes, quarreled with him. Jefferson and Madison’s intense opposition to the Sedition Act suggests they understood free speech more expansively than Blackstone did. Holloway’s response—that Alexander Hamilton’s Croswell standard represents the real founding synthesis—is plausible but not conclusive. Hamilton, after all, was defending a defendant charged with criminal libel in a politically charged case; his advocacy there may not cleanly represent a settled constitutional consensus.

There is also a practical objection that the book addresses only partially: the civil rights origins of Sullivan are acknowledged, but their weight is somewhat minimized. The Sullivan case arose because Alabama officials were using state libel law as a weapon to suppress coverage of the civil rights movement. A return to traditional libel standards could, in certain political environments, once again expose civil rights journalism, investigative reporting, and political dissent to strategic libel litigation—what we now call “SLAPP suits”—funded by powerful interests. Holloway’s reply—that the Court could have ruled against Sullivan on narrower grounds without inventing the actual malice standard—is intellectually fair, but it leaves open the question of whether the institutional alternatives he implicitly relies upon (honest judges, faithful juries) are reliable enough in a polarized political climate.

I’m concerned that this review has too negative a tone, because in fairness the book is worth reading. No Liberty to Libel is a serious, well-constructed work of legal scholarship that succeeds in its primary aim: demonstrating that New York Times v. Sullivan was an innovation, not an interpretation, and that an originalist court has genuine grounds to revisit it. The recovery of reputation as a natural right is the book’s most lasting contribution. Its principal weakness is that the Founding-era record is more contested than Holloway’s confident reconstruction suggests, precisely because there was no one unified, coherent “originalism” on this question. The institutional risks of returning to pre-Sullivan standards—the routine and brutal use of libel law as a political weapon—receive insufficient weight.

Read (as I think it should be) alongside Turley, Holloway reminds us that Sullivan came at a real cost to real people whose reputations were destroyed with impunity. Turley reminds us that every tightening of libel standards has historically been exploited by the powerful against the vulnerable. Together, the two books define the terms of a debate that the Roberts Court, with its two declared skeptics of Sullivan and its originalist majority, may soon be forced to resolve.