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Monday, January 06, 2014

Happy 50th Anniversary of the Oral Argument in New York Times v. Sullivan

Today is the fiftieth anniversary of the oral arguments in one of the landmark cases in the history of the Warren Court and the jurisprudence of the First Amendment: New York Times v. Sullivan. An Oyez project page with links to, among other things, the oral argument itself is available here.

I usually sit on my draft papers a bit before posting them to SSRN, but given the anniversary I thought it would be a good day to post a newly completed (rough!) draft paper of mine on the subject, despite its obvious flaws. The article is titled Institutional Actors in New York Times v. Sullivan. It was written for a symposium at the University of Georgia School of Law marking the case's fiftieth anniversary. (Alas, I was unable to attend in person; I'm sure I missed a great conference, not to mention a hell of a college town.) The Alabama Law Review will be hosting its own fiftieth anniversary symposium later this year; it's not surprising to me that two states in the Deep South, which figured so prominently in the outcome of the case, have felt duty-bound to revisit it.  Here's the 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 and/or 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 non-state 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 anti-discrimination 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 high-stakes nature of the case at the time it was decided, and the past and present importance of certain institutional actors in our social structure.

Posted by Paul Horwitz on January 6, 2014 at 01:05 PM in Paul Horwitz | Permalink

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