Document Type

Working Paper

Publication Date

1-6-2014

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Private Law eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Financial Economics Network; Humanities Network; Political Science Network

Abstract

This Article was written for a symposium held at the University of Georgia School of Law marking the fiftieth anniversary of New York Times v Sullivan It has two primary purposes First it examines this landmark First Amendment decision through the lens of the institutional actors that were prominent in the case Most academic treatments of Sullivan and of the First Amendment generally focus substantially on the state andor public officials This Article turns its focus elsewhere to three other key institutions in the case the press social movements in this case the civil rights movement and courts both the state courts and the Supreme Court itself That institutional focus helps revive certain aspects of the case that are easily neglected over time helps make clear why the Supreme Court was willing to act so aggressively in this case both in constitutionalizing defamation law and in insisting on independent appellate review of the facts and reminds us that the decision was not just about mistrust of government but was also about preserving the vital role that nonstate actors such as the New York Times or the civil rights movement play in monitoring and checking government and contributing to public discourse and social change Second it offers some exploratory thoughts on why as I think is true New York Times v Sullivan has lost some of its luster and canonical status in the intervening years Sullivan is still obviously a hugely important case and it has always been subject to criticism Still it was once highly and widely celebrated Now even among those who are not especially critical of the decision it is more likely to be met with a shrug than with praise It is not an object of ongoing political contestation like other landmark cases such as Brown v Board of Education it is simply there I suggest that Sullivan has undergone a sort of bifurcation that has diminished its canonical status On the one hand its broad pronouncements have largely been assimilated into First Amendment doctrine so that citations to the case are almost more decorative than substantial On the other its specific pronouncements concerning defamation law have been submerged in the complex details of defamation law itself which has returned to the preserve of specialists To these factors we can add two others the direction of First Amendment law itself with its profusion of fairly schematic antidiscrimination rules and relatedly the general focus in First Amendment doctrine on the government as the central actor and the relative lack of interest in the specific speakers institutional or individual that come before the courts Taken together these factors have made New York Times v Sullivan a case that continues to be cited for general principles but that fails to capture the attention and imagination of either constitutional law experts or the public as it once did A focus on the press the civil rights movement and the courts as institutional actors in Sullivan helps remind us of the highstakes nature of the case at the time it was decided and the past and present importance of certain institutional actors in our social structure

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