Skip to main content
March 2022

Chapter 1: A Response to Justice Thomas

By Matthew L. Schafer


In the decades since the Supreme Court decided New York Times Co. v. Sullivan,[1] litigants rarely questioned it. Beginning about twenty years ago, however, that began to change. Yet, time and again, the Court refused to revisit Sullivan.[2] So when, in 2019, Justice Clarence Thomas in McKee v. Cosby[3]called on the Court to revisit the case, the public and the bar took notice.[4] The headline in the New York Times was a bold one: “Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling.”[5] Around two years later, Justice Thomas, this time in Berisha v. Lawson,[6]would revisit that call, writing “[i]nstead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.”[7] Justice Neil Gorsuch, for the first time, joined him, questioning “how well Sullivan and all its various extensions serve its intended goals in today’s changed world.”[8] Again, the headline was a bold one: “Two Justices Say Supreme Court Should Reconsider Landmark Libel Decision.”[9]

The question now is whether the next headline will be “Three Justices Say Supreme Court Should Reconsider Landmark Libel Decision” or, even, “Supreme Court to Reconsider Landmark Libel Decision.” For the time being, however, we set that question to one side and focus in this chapter on the argument made primarily by Justice Thomas and endorsed by Justice Gorsuch:  Sullivan cannot be rationalized by resort to the original understanding of the First Amendment. As Justice Thomas said in Berisha, quoting Judge Laurence Silberman of the D.C. Circuit, “This Court’s pronouncement that the First Amendment requires public figures to establish actual malice bears ‘no relation to the text, history, or structure of the Constitution.’”[10]

Prior to Justice Thomas’ opinion in McKee, the question of Sullivan’s originalist bona fides had not been mined – at least not at the depths that his argument now requires. As a result, the contemporaneous responses to McKee and Berisha were themselves conflicting. On the one hand, Professor Cass Sunstein argued that, in devising the Sullivan rule, “the Court did not really speak in originalist terms.”[11] On the other hand, Professor Josh Blackman asserted that the “constitutional objections to the Sedition Act of 1798 provide some originalist basis to impose a higher bar for libel suits filed by government officials.”[12] Professor Marty Lederman too questioned Thomas’ thesis, calling it not “terribly compelling,” not least because “state common law itself developed in a manner designed to not unduly ‘chill’ truthful speech” and further because “the States had no reason to think they were bound by the Free Speech and Press Clauses until at least 1925.”[13] First Amendment lawyer Lee Levine and Professor Stephen Wermiel mounted similar attacks.[14]

This Chapter provides the missing historical context to assess Justice Thomas’ originalist attacks on Sullivan; along the way, it suggests that history, rather than undercutting Sullivan, supports the Court’s constitutionalization of the common law of libel.[15] It proceeds in four parts. In the first, it discusses Justice Thomas’ (and Justice Gorsuch’s analogous) attacks on the Sullivan rule. In the second, it confronts a preliminary issue that arises in any historical canvassing of a subject: what part of history should be considered? How much history is required to arrive at the originalist answer? Should history matter at all? Having set the table, it then analyzes the animating principles behind early Americans’ commitment to freedom of speech and of the press by reference to three influential cases decided in the early 1800s and a review of eleven nineteenth century legal treatises relating to freedom of the press. It concludes that, early on, a dogged commitment to republican thought gave meaning to empty vessels like “freedom of the press.”

The subsequent parts move from a general review of historical evidence relating to freedom of the press to a specific review of the historical evidence relating to how those principles did (or did not) manifest in early libel law.First, it reviews case law that pre-dated Sullivan to discern whether public officials and public figures faced greater hurdles to recovery in defamation actions in the United States. It demonstrates, contrary to Justice Thomas’ assumptions, that they did; for more than 150 years, public officials have faced burdens not faced by other defamation litigants. Finally, it examines Justice Thomas’ reliance on English authorities and demonstrates that such reliance is ahistorical. In fact, the Founders expressly disclaimed many of the pre-Revolutionary English sources on which Justice Thomas (and Justice Gorsuch) rely. They did so for a wholly unsurprising reason: we fought a war to, as Thomas Jefferson once said, “emancipate” ourselves from English rule and English law.[16]


A.         McKee v. Cosby

Kathrine McKee alleged that she was one of comedian Bill Cosby’s numerous victims of sexual violence.[17] In response to one of McKee’s interviews, Marty Singer, Cosby’s lawyer, sent a letter to the news organization “attack[ing] McKee with numerous false allegations, calling her an admitted liar, not credible, unchaste, and a criminal.”[18] As a result, McKee filed a defamation lawsuit.[19] The district court dismissed that lawsuit on a number of grounds and the First Circuit affirmed, finding that McKee was a limited purpose public figure who failed to plead actual malice adequately.[20]

McKee filed her petition for a writ of certiorari in April 2018. The petition presented a single question, “Whether a victim of sexual misconduct who merely publicly states that she was victimized . . . has thrust herself to the forefront of a public debate . . . thereby becoming a limited purpose public figure who loses her right to recover for defamation absent a showing of actual malice.”[21] The petition did not otherwise challenge the validity of the actual malice requirement or ask the Court to reconsider it. Instead, it claimed that there was a split in the circuit courts on a more picayune question: what was needed to show that a private figure had become a public one.[22]

Cosby waived the right to respond to the petition, but the Court requested one.[23] He then argued that the petition should be denied because, among other things, no circuit split existed.[24] After receiving McKee’s reply brief, the case was set to be distributed for the justices’ conference to be held on September 24, 2018.[25] But the petition’s consideration was rescheduled twelve times.[26]

The reason for the rescheduling was a mystery at the time. It turned out though that, for six months, Justice Thomas was researching and writing his opinion concurring in the denial of the petition.[27] In that opinion, he agreed with the Court’s decision to deny certiorari rather than wade into the “factbound question” of whether McKee was a limited-purpose public figure.[28] But he wrote for himself to explain “why, in an appropriate case, [the Court] should reconsider the precedents that require courts to ask it in the first place.”[29] According to Justice Thomas, Sullivan “and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law” and they should be reconsidered.[30] Indeed, he said, the Court “did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” and it should leave it to the States to “strik[e] an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”[31]

Justice Thomas’s ultimate thesis was this: “The constitutional libel rules adopted by this Court in [Sullivan] and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law.”[32] He supported this theory in four ways, focusing on (1) the common law of libel’s treatment of public officials; (2) the Court’s pre-Sullivan treatment of libel law; (3) the historical support for the proposition that either state or federal constitutions were intended to displace the common law of libel; and, finally, (4) Sullivan’s alleged failure to point to any historical evidence supporting the establishment of the actual malice rule except “opposition surrounding the Sedition Act of 1798.”[33] His factual support for each point came in three kinds: two nineteenth century treatises and Blackstone’s Commentaries;pre-Sullivan Supreme Court jurisprudence; and a handful of nineteenth century state court libel decisions.[34]

First, Justice Thomas argued that neither in 1791, when the States ratified the First Amendment, nor in 1868, when they ratified the Fourteenth, did “the common law of libel . . . require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages.”[35] A plaintiff in a civil defamation cause typically, he wrote, “needed only to prove ‘a false written publication that subjected him to hatred, contempt, or ridicule.’”[36] Malice and injury were presumed, and truth was a defense.[37] As to criminal libel at common law, Thomas noted that “truth traditionally was not a defense to libel prosecutions – the crime was intended to punish provocations to a breach of the peace, not the falsity of the statement.”[38] These laws, he said, were “widespread” at the Founding, although he admitted that, by the time Congress passed the Fourteenth Amendment, “truth or good motives [served] as a defense to a libel prosecution.”[39]

Moreover, “Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels.”[40] Justice Thomas supported this assertion by reference to William Blackstone and an early treatise that explained, “Libel of a public official was deemed an offense ‘most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.’”[41] He also offered as support the medieval English statutes of scandalum magnatum that found words “in derogation of a peer, a judge, or other great officer of the realm” to be “more heinous” than other libels.[42]

Second, Justice Thomas argued that “the core private righ[t] of a person’s uninterrupted enjoyment of . . . his reputation formed the backdrop against which the First and Fourteenth Amendments were ratified” and was never viewed by the Court as colliding with these Amendments.[43] Before Sullivan, he said, the Supreme Court in cases like Chaplinsky v. New Hampshire[44]and Near v. Minnesota[45]“consistently recognized that the First Amendment did not displace the common law of libel.”[46] Instead, the Court recognized that libel, like obscenity, was one of the “‘well-defined and narrowly limited classes of speech . . . which have never been thought to raise any Constitutional problem.’”[47] Yet, he asserted, the Sullivan Court refused to “repudiate” these earlier cases on its way to the holding in that case, choosing instead to reject merely the “‘generality of this historic view.’”[48]

Third, Justice Thomas wrote that there were “sound reasons to question whether either the First or Fourteenth Amendment, as originally understood, encompasse[d] an actual-malice standard for public figures or otherwise displaces vast swaths of state defamation law.”[49] There was “[s]cant, if any, evidence . . . that the First Amendment was intended to abolish the common law of libel, at least to the extent of depriving ordinary citizens of meaningful redress against their defamers.”[50] Rather, “protection for free speech and a free press” was understood “not [to] abrogate the common law of libel.”[51] In support, he offered seven nineteenth-century cases and asserted that “[p]ublic officers and public figures continued to be able to bring civil libel suits for unprivileged statements without showing proof of actual malice.”[52] He further pointed to those States that continued to criminalize libel against public officials, citing the Court’s 1952 decision in Beauharnais v. Illinois[53]and three state courts opinions.[54] Moreover, he wrote, multiple Reconstruction Congresses “‘approved Constitutions of “Reconstructed” States that expressly mentioned state libel laws, and also approved similar Constitutions for States erected out of the federal domain.’”[55]

Finally, Justice Thomas turned to Sullivan itself, faulting the Court for too brief a historical survey. Sullivan, he said, “pointed only to opposition surrounding the Sedition Act of 1798, which prohibited ‘any false, scandalous and malicious writing’ against ‘the government of the United States.’”[56] This history was not persuasive to Justice Thomas because “constitutional opposition to the Sedition Act – a federal law directly criminalizing criticism of the Government – d[id] not necessarily support a constitutional actual-malice rule in all civil libel actions brought by public figures.”[57] And Madison, rather than eschew the common law in his fight against the Sedition Act, “seemed to contemplate that ‘those who administer [the national government]’ retain ‘a remedy, for their injured reputations, under the same laws, and in the same tribunals.’”[58] In sum, Justice Thomas said, “there appear[ed] to be little historical evidence suggesting that the [Sullivan] actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.”[59]

Justice Thomas conceded, nevertheless, “that defamation law did not remain static after the founding.”[60] He acknowledged that the “common law did afford defendants a privilege to comment on public questions and matters of public interest.”[61] The privilege allowed discussion about the “‘public conduct of public men,’” which was seen as “a ‘matter of public interest’ that could ‘be discussed with the fullest freedom.’”[62] The privilege was nevertheless limited by its purpose: it did not extend to an official’s private conduct and “applied only when the facts stated are true.”[63] On the criminal side, state courts in the nineteenth century began “allow[ing] truth or good motives to serve as a defense to a libel prosecution.”[64] Eventually, criminal libel “virtual[ly] disappear[ed].”[65] Yet, these changes were not the product of constitutional law but “changing policy judgments.”[66]

If the hope had been to get other justices to sign on, it would soon be dashed. Justice Thomas wrote for himself alone. And, while there was a general fear that the new crop of judges appointed by President Trump would be hostile to Sullivan, the most recent Supreme Court appointees, Justices Gorsuch and Kavanaugh had enthusiastically endorsed Sullivan in opinions as circuit judges.[67] Other conservatives on the Court appeared equally unlikely to support Justice Thomas’ vision. Justice Alito had previously endorsed the Court’s jurisprudence, explaining that the “constitutional guarantee of freedom of expression serves many purposes, but its most important role is protection of robust and uninhibited debate on important political and social issues.”[68] “If citizens cannot speak freely and without fear about the most important issues of the day,” Justice Alito wrote, “real self-government is not possible.”[69]

If Justice Thomas was going to find any allies, it appeared Justice Elena Kagan was his best bet. Decades earlier, then-Professor Kagan wrote that “the revolution worked by Sullivan in the treatment of public official libel suits appears justified, correct, even obvious.”[70] But, she added, Sullivan “impose[d] serious costs,” the “adverse consequences” of which “do not prove Sullivan itself wrong, but . . . force consideration of the question whether the Court, in subsequent decisions, has extended the Sullivan principle too far.”[71] Later, during her confirmation hearing, Kagan also asserted, consistent with Justice Thomas, that “[t]he Framers of the Constitution did not understand the First Amendment as extending to libelous speech.”[72] But she did not join either.

B.         Berisha v. Lawson

In Berisha v. Lawson,[73] Shkëlzen Berisha, the son of former Albania Prime Minister Sali Berisha, sued the publisher Simon & Schuster and its author, Guy Lawson, for defamation arising out of the book Arms and the Dudes, which later was turned into the movie War Dogs.[74] Berisha argued that the book defamed him insofar as it alleged that Berisha was part of the Albanian mafia and involved in a “tragic explosion of an Albanian munitions stockpile” that “killed 25 people.”[75] The district court granted summary judgment to the defendants on the grounds that Berisha was a public figure who lacked sufficient evidence demonstrating that defendants published with actual malice.[76] On appeal, the Eleventh Circuit agreed.[77]

In February 2021, Berisha filed a petition for a writ of certiorari, which unlike the McKee petition, posed the question directly: “The question presented is whether this Court should overrule the ‘actual malice’ requirement it imposed on public figure defamation plaintiffs.”[78] As in McKee, the defendants waived their right to respond to the petition, but the Court requested one.[79] And, as in McKee, once the Court received the response, the case was relisted multiple times. Then, on the last day of the October 2020 term, in the last order list of that term, the Court denied the petition.[80] Justice Thomas dissented, as did Justice Gorsuch.

Citing his decision in McKee, Justice Thomas began: “Berisha . . . asks this Court to reconsider the ‘actual malice’ requirement as it applies to public figures. As I explained recently, we should.”[81] Justice Thomas explained again that “[t]his Court’s pronouncement that the First Amendment requires public figures to establish actual malice bears ‘no relation to the text, history, or structure of the Constitution.’”[82] “In fact,” he wrote, “the opposite rule historically prevailed.”[83] And, the “Court provided scant explanation for the decision to erect a new hurdle for public-figure plaintiffs so long after the First Amendment’s ratification.”[84] He also questioned “why exposing oneself to an increased risk [by becoming a public figure] of becoming a victim necessarily means forfeiting the remedies legislatures put in place for such victims.”[85] After cataloguing all the “real-world” effects of the rule, he concluded, “The proliferation of falsehoods is, and always has been, a serious matter. Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.”[86]

Justice Gorsuch too claimed that the dearth of historical support for Sullivan merited granting the petition. According to him, “[t]o govern themselves wisely, the framers knew, people must be able to speak and write, question old assumptions, and offer new insights.”[87] But with this right, came a duty: “those exercising the freedom of the press had a responsibility to try to get the facts right – or, like anyone else, answer in tort for the injuries they caused.”[88] “This principle,” he said, “extended far back in the common law and far forward into our Nation’s history.”[89] Citing Blackstone, Justice Gorsuch argued that “‘[e]very freeman has an undoubted right to lay what sentiments he pleases before the public,’ but if he publishes falsehoods ‘he must take the consequence of his own temerity.’”[90]

In addition, Justice Gorsuch observed that, in the nineteenth century, Justice Joseph Story maintained that “the liberty of the press do[es] not authorize malicious and injurious defamation.”[91] It was this view, Justice Gorsuch said, that was accepted in “this Nation for more than two centuries.”[92] Thus, from the Founding to 1964 when the Court decided Sullivan, defamation law “was ‘almost exclusively the business of state courts and legislatures.’”[93] Before Sullivan, “all persons could recover damages for injuries caused by false publications about them.”[94]

Justice Gorsuch then added his voice to the “[m]any Members of this Court [who have] raised questions about various aspects of Sullivan”—although, unlike Justice Thomas, he did “not profess any sure answers” and was “not even certain of all the questions we should be asking.”[95] While he did not doubt the Court in Sullivan had good intentions – “[d]epartures from the Constitution’s original public meaning are usually the product of good intentions” – he urged that the Court “return[] its attention, whether in this case or another, to a field so vital to the ‘safe deposit’ of our liberties.”[96]


Justices Thomas and Gorsuch speak with confidence on the historical shortcomings of Sullivan in both McKee and Berisha. They speak in absolutes about the state of the law of libel before 1964.They present the history of the common law of libel as if it were a tidy corner of the law where nothing is out of place, where absolutes are unavoidable. They do the same when describing the understanding of the First and Fourteenth Amendments before Sullivan, suggesting that, prior to 1964 the Constitution had little impact on the law of libel. But libel in the United States is not now, nor ever was, tidy and the values embodied in the First Amendment, sometimes alluded to, sometimes explicitly referenced, did enter the common law of libel long before 1964.

While this section does not quibble with originalism, it suffices before diving into its historical analysis to note some of the problems with originalism in the context of the First Amendment. One of these problems is foundational: everyone seems to admit that the historical record is incomplete. As Professor Leonard Levy said, “[t]he Congressional debate on the amendment . . . was unclear and apathetic; ambiguity, brevity and imprecision in thought and expression characterize the comments of the few members who spoke.”[97] Jerome Lawrence Merin, who made an early historical assessment of Sullivan, wrote similarly, “[t]he debates in Congress and in the states over the Bill of Rights . . . give us little clue as to what the framers had in mind when they stated that Congress should make no law abridging freedom of the press.”[98] Even Justice Byron White, who made the first “originalist” attack on Sullivan in Gertz v. Robert Welch, Inc., [99] candidly admitted that “[t]he debates in Congress and the States over the Bill of Rights are unclear and inconclusive on any articulated intention of the Framers as to the free press guarantee.”

Precisely because of this, the originalist must resort to historical triangulation. Resort must be made to statements by the Founders, newspaper clippings, the legal academy, and the rest to try and discern what the First Amendment meant to people in 1791 or 1868. This is a dangerous task. Take, for example, a piece of Justice White’s evidence in Gertz: “James Wilson suggested a restatement of the Blackstone standard” as the meaning of freedom of the press.[100] This is based on Wilson’s arguments at the Pennsylvania Ratifying Convention in 1787.[101] At the time, Wilson was advocating for the adoption of a constitution that was as much his has it was James Madison’s. Demands for a bill of rights risked upending that process. So, his resort to Blackstone is unsurprising, but ultimately incomplete. In the early 1790s, having secured his constitution, Wilson changed his position, advocating for a broader understanding of freedom of the press and criticizing the Blackstonian conception.[102] For exactly this reason, proponents of undoing Sullivan should remember Justice Scalia’s warning: “the views of one man do not establish the original understanding of the First Amendment.”[103]

Even if the historical record was not wanting, an originalist approach to the First Amendment faces any number of challenges. First, there is the issue of how much history one needs to conclude that he or she has arrived at an originalist understanding. Justice Thomas, for example, has relied on varying amounts of historical evidence to satisfy himself that history is on his side. In McIntyre v. Ohio Elections Commission,[104] he cataloged the historical record at length but characterized it as “not as complete or as full as I would desire,” yet good enough to conclude that the Founders intended the First Amendment to protect anonymous speech. In 44 Liquormart, Inc. v. Rhode Island,[105] he rested on just three post-Reconstruction cases.[106] In Morse v. Frederick,[107] he satisfied himself based on a smattering of cases from the 19th and early 20th centuries. Later, in Mahoney Area School District v. B.L.,[108] Justice Thomas relied principally on a single pre-Reconstruction case, which earned the response from Justices Alito and Gorsuch that a single case provided “no basis for concluding that the original public meaning of the free-speech right protected by the First and Fourteenth Amendments was understood by Congress or the legislatures that ratified those Amendments as permitting a public school to punish a wide swath of off-premises student speech.”[109]

There is also the issue of what is to be done with historical evidence that cuts in opposite directions. McIntyre highlights this problem. There, Justice Thomas pointed out that early legislatures attempted to unmask the identities of various authors.[110] In one vignette, he recounted how, during a sitting of the Continental Congress, Elbridge Gerry “moved to haul the printer of the newspaper before Congress to answer questions concerning Leonidas[’s] [identity].”[111] The motion was defeated, but one would think that the fact it was even made—by Gerry no less—demonstrates that there was no universal understanding that the First Amendment protected anonymous speech. Justice Thomas tells a similar story of the Upper House of the New Jersey Legislature that was, in turn, defeated by the Lower House in its attempts to identify an author.[112] Despite these conflicts, Justice Thomas offers an unqualified conclusion: “[T]he Framers shared the belief that such activity [of anonymous publication] was firmly part of the freedom of the press.”[113]

Third, there is the problem of what history is relevant to the inquiry? In McKee, Justice Thomas cited a set of medieval statutes adopted to outlaw certain criticisms of public officials as support for his thesis.[114] But he largely ignored that the statutes were rejected after the Glorious Revolution, fell into disuse, and were repealed. In Rogers v. Grewal,[115] a Second Amendment case, he took the opposite approach. There, Justice Thomas ignored that the statute was adopted, which would have cut in favor of the constitutionality of gun regulations, dismissing it as being adopted “during a time of political transition.”[116] Instead, he focused on the statute’s ultimate demise after the Glorious Revolution. And it was this history, Justice Thomas said, that mattered: “[F]or purposes of discerning the original meaning of the Second Amendment, it is this founding era understanding that is most pertinent.”[117] These approaches appear to be irreconcilable.

This is to say nothing of whether the relevant historical period should be around 1791, the year the States ratified the First Amendment, or 1868, the year they ratified the Fourteenth. In 1791, there was no national libel law and proponents of the Constitution presumed that Congress could not pass such a law. As Alexander Hamilton observed in Federalist No. 84, “[w]hy, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”[118] When the Democratic-Republicans won public opinion for the inclusion of a bill of rights, it was purposefully drawn to limit only the federal government’s power, not the States’: “Congress shall make no law . . . abridging freedom of speech, or of the press.”[119]

This has two implications. Initially, the First Amendment as adopted in 1791 necessarily – by design – did notlimit state libel law. Far from evidence against Sullivan though, this is merely evidence that the First Amendment prior to the ratification of the Fourteenth simply did not apply to state law at all.[120] As such, while perhaps the intentions of the Framers might be relevant to understanding the First Amendment’s interactions with state libel law today, the specifics in which they dealt are not. Second, it suggests that were one to look at history, they should look to the state of the law around the ratification of the Fourteenth Amendment when the First Amendment’s prohibition was extended to the States. As Professor Lawrence Rosenthal has explained, “[i]t may be that the public’s understanding of the Speech and Press Clauses at the time they were made applicable to the states is the appropriate point for assessing [their] meaning . . . on the view that 1868 was the time at which the nation recommitted to constitutional protection for free speech and a free press.”[121]

Setting all of these difficulties to the side, there is the grander question of whether history should matter at all.[122] There are persuasive arguments that, when it comes to questions of speech, an originalist approach is the wrong approach: “[T]he meaning of the First Amendment did not crystallize in 1791.”[123] As Zechariah Chafee Jr. observed early in the twentieth century, “[t]he framers would probably have been horrified at the thought of protecting books by Darwin or Bernard Shaw, but ‘liberty of speech’ is no more confined to the speech they thought permissible than ‘commerce’ in another clause is limited to the sailing vessels and horse-drawn vehicles of 1787.”[124] Freedom of the press, after all, “was far from complete” in the Colonies.[125]

While Justice Thomas would likely argue that this lack of freedom supports his thesis, this history makes his wish for a return to a similar system downright terrifying. Take, for example, the treatment of individuals before and around the Founding. In 1661, the Massachusetts Bay legislature ordered the suppression of a book because it “advocated popular election of officials.”[126] One author in the colony spent a year in jail after criticizing ecclesiastical authorities.[127] In 1722, the Pennsylvania Council “barred a printer . . . from publishing without permission anything that had to do with governmental affairs.”[128] Unsurprisingly, in Revolutionary America, “Tory printers were being harassed by mobs and by the new state legislatures.”[129] And, by 1778, “every state had some form of sedition law which was broadly interpreted to penalize open denunciation of the patriot cause.”[130] None of this is something we should be trying to resurrect. Half the country would be in jail.

This approach, if adopted throughout the Court’s First Amendment cannon, would also require throwing out most of the Court’s First Amendment jurisprudence. As Professor Dorf said, “First Amendment doctrine is pervasively nonoriginalist. . . . ‘If an originalist wanted First Amendment doctrine to track Founder Era judicial reasoning, the Supreme Court’s decisions in Texas v. Johnson, Boy Scouts of America v. Dale, Citizens United v. FEC, and Snyder v. Phelps, among many, many others, would likely have to go.’”[131] Justice Thomas, Dorf noted, “joined the majority opinion in every one of the specifically listed cases except Johnson, which was decided before he joined the Court.”[132] It seems unlikely that Justice Thomas would propose to revisit any of these decisions. And, until he can explain the difference in treatment, a full-throated application of originalist interpretation in this corner of the cannon is difficult to justify


Setting aside these concerns, Justice Thomas (along with Justice Gorsuch) has advanced “originalist” arguments against Sullivan, and, in this section, it is on those grounds that we will defend Sullivan. For example, Justice Thomas argued in McKee that “[f]ar from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels.”[133] Such libels were deemed “most dangerous to the people.”[134] For his part, Justice Gorsuch argued in Berisha that the common law imposed numerous restraints on speakers and “those exercising the freedom of the press had a responsibility to try to get the facts right—or, like anyone else, answer in tort for the injuries they caused.”[135] Neither Justice, as it turns out, is really wrong in their assessments of the historical record, at least at one point in history. But what these assessments fail to account for is the effect that the Revolution had on the common law of libel. Thus, even if Justices Thomas and Gorsuch are correct as a matter of English law, they ignore the complexities of the common law’s development in this country.

One of the first historical events that both Justices ignore is the trial of John Peter Zenger – the defining moment of press freedom in colonial America. In the early 1730s, Zenger, a German immigrant, began publishing the New York Weekly Journal.[136] He ended up on the wrong side of the colonial governor William Cosby because of his “frequent and somewhat severe attacks” on his administration.[137] The attorney general charged Zenger on information with criminal libel after he was unable to secure an indictment.[138] Zenger landed in jail for eight months awaiting trial.[139] His papers landed in the ash heap at the order of Cosby – although the mass burnings were boycotted by the City and its officials despite being ordered to attend.[140] 

Andrew Hamilton, the famed Philadelphia lawyer, took up Zenger’s defense for free.[141] At the time, truth was no defense to a criminal libel charge; a true libel was a worse libel; in other words, many of the historical elements of the common law of libel that Justice Thomas invokes.[142] Hamilton argued, however, that contrary to the common law (or at least the common law as bastardized by the Star Chamber), truth should matter:

The question before . . . you . . . is not of small or private concern. It is not the cause of one poor printer. No! It may in its consequence affect every free man . . . . It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and . . . laid a noble foundation for securing to ourselves . . . the liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.[143]

An early New York jury decided Hamilton was right, and it acquitted Zenger. When it came back with the general verdict of not guilty, spectators broke into a cheer of “three huzzas.”[144] And that was just the beginning of the celebration. On Hamilton’s departure from the City, “a salute was fired in his honor on the banks of the Hudson.”[145] The Common Council of New York, the City’s legislative branch at the time, heralded Hamilton’s performance as a “generous defense of the rights of mankind, and the freedom of the press” and even granted him ceremonial citizenship to the City.[146] Gouverneur Morris, the Founding Father who penned the Preamble, later called the victory the “dawn of liberty, which afterwards revolutionized America.”[147] Modern day appraisals by the Supreme Court no less are equally rosy: “Zenger’s trial was, with one possible exception, ‘the most widely known source of libertarian thought in England and America during the eighteenth century.’”[148] As Justice Thomas himself wrote in McIntyre, the Zengercase“set the colonies afire for its example of a jury refusing to convict a defendant of seditious libel against Crown authorities.”[149]

On that point, Justice Thomas is certainly right. According to Professor Wendell Bird’s account in The Revolution in Freedoms of Press and Speech, the “Zenger trial thundered across colonial America in 1735 and brought permanent consciousness of liberties of press and speech.”[150] While the case was in specifics about the King versus Zenger, it was as much about the English law of libel versus American ideas of freedom. Indeed, Hamilton argued for the departure from the common law of libel and the limited role of a jury at common law, while the attorney general’s argument “amounted to a summary of the English law of libel, as applied in colonial America as well as in England.”[151]

Not only did Zenger win then, so too did those new ideas of freedom to the exclusion of the common law. Accounts of the trial were “widely excerpted in newspapers” and were “reissued fifteen times in the pre-revolutionary years.”[152] Rather than a flash in the pan, the “case was long remembered, being described in 1752 as the time when ‘the liberty of the press [was] actually invaded in this province by the imprisonment of the publick printer’ and being toasted in 1770.”[153] Thus, some of the earliest and most influential evidence we have of press freedom in colonial America is decisively against the idea that the English common law of libel was simply imported into the colonies and accepted by the colonists. On the contrary, it was rejected early on.

True, despite Zenger, freedom of the press in the colonies left much to be desired, but the story of press freedom from Zenger onward is a story of early republican thought demanding greater press freedom rather than less. After ratification of the First Amendment, after the rejection of English rule, early American courts had to reassess how they would harmonize, among other things, the common law of libel with press freedoms guaranteed in state and federal constitutions. While, of course, there were many such cases, here we review three – two of which Justice Thomas himself relies on and another that, while less influential, shows how early defendants argued that their culpability should be measured against their belief in the truth of their publications: Commonwealth v. Clap, People v. Croswell, and Lewis v. Few.[154] These cases, from New York and Massachusetts, demonstrate two things. First, as a doctrinal matter, how early courts grappled with questions about the role of truth and falsity in libel (Clap) and questions about the relevance of one’s intent (Croswell and Lewis).

Second, they demonstrate how early state courts struggled to reconcile the brutish nature of English libel law with a new Constitution that guaranteed a “Republican form of Government.”[155] In departing from the common law of England, these courts did so precisely because following it would have been incompatible with the government adopted after the Revolution. True, there were no good answers early on. It was hard for the States, and the inherently conservative judiciary, to cleave themselves entirely from the English common law. But, if not cleave, through these cases they whittled away at it, sanded smooth its rough edges, and carved a decidedly American law of libel.

Commonwealth v. Clap.

Let’s start with the 1808 Massachusetts Supreme Judicial Court case of Commonwealth v. Clap. In McKee,Justice Thomas cited Clap to support his assertion that at common law libels against public officials were “most dangerous to the people.”[156] But Justice Thomas missed what is most important about Clap: its concern about protecting a sphere of public debate from the common law of libel such that the People could criticize their public officials. Indeed, Clap isrepresentative of early conflicts between the enforcement of the law of libel and the desire to protect the political debate necessary for a republican form of government. Far from supporting Justice Thomas’s thesis, it cuts against him.

In Clap, authorities indicted the defendant for libeling an auctioneer, historically a public official, with the charge that he was “a liar, a scoundrel, a cheat, and a swindler.”[157] The issue was whether the criminal defendant should be able to offer evidence demonstrating that the charge was true because the auctioneer was a public official.[158] At common law, truth was no defense to a criminal libel charge. As the saying goes: the greater the truth, the greater the libel.[159] All that was required to secure a conviction in front of a jury was a showing that the libel was published.[160]

But counsel for Clap questioned the application of these rules in a republican democracy like the United States. He argued that, to the extent the common law was against him, it “was virtually repealed by the provisions of the constitution of this commonwealth; and he went much at large into the consideration of the right of the citizens of a free elective republic to speak and publish the truth respecting the characters of men in office.”[161] The reason for this freedom was simple: “[t]he community have an interest in his integrity, and have a right to be informed what his conduct in office is, that they may judge whether it be safe and discreet to intrust their property to his care and management.”[162] It was, thus, “of much greater importance that this high constitutional privilege be preserved unimpaired, than that a libeller should now and then go unpunished.”[163]

While the solicitor general responded that “he had never known a decision that the truth might be given in evidence” even in cases concerning the libel on a public official, he admitted that “whenever he had had the direction of prosecutions of this kind, he had always yielded to such a defence without opposition.”[164] In fact, he had “even courted” defendants “to attempt a defence of this kind.”[165] The attorney general agreed as well:

As to public men, the measures of government, and candidates for public offices, the Attorney-General said he had always held the people to be their proper and constitutional judges; and he never should, while he held his present office, oppose the giving of the truth in evidence to justify any publications charged as libellous in relation to those objects.[166]

It was only in that case that he did not believe the victim of the libel – an auctioneer – should be considered a public official.[167]

The court agreed with the attorney general that the auctioneer, as a mere appointed officer, rather than an elected one, was not a public official and thus the point of law argued for by the defendant did not control the case. Truth, the court said, was not under the English law of libel a defense. As the court put it, “it is not considered whether the publication be true or false; because a man may maliciously publish the truth against another, with the intent to defame his character, and if the publication be true, the tendency of it to inflame the passions, and to excite revenge, is not diminished, but may sometimes be strengthened.”[168] Were truth allowed to be proved at trial, the victim of the libel, who in the criminal prosecution for that libel “is not a party,” “the evidence at the trial might more cruelly defame his character than the original libel.”[169]

But, the court in Clap then altered the common law by finding that, in some cases, the truth might still be offered in justification. As the court explained, “the defendant may repel the charge, by proving that the publication was for a justifiable purpose, and not malicious, nor with the intent to defame any man.”[170] And in this effort to prove that the conduct was justified, the court found that “there may be cases, where the defendant . . . may give in evidence the truth of the words, when such evidence will tend to negative the malice and intent to defame.”[171] “Upon this principle,” the court wrote, “a man may apply by complaint to the legislature to remove an unworthy officer; and if the complaint be true, and made with the honest intention of giving useful information, and not maliciously, or with intent to defame, the complaint will not be a libel.”[172]

Importantly, the court explained why a defendant should not be deprived of the right to prove truth: “when any man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his character in issue, so far as it may respect his fitness and qualifications for the office.”[173] Departing from the common law, the court then held, “publications of the truth on this subject, with the honest intention of informing the people, are not a libel.”[174] “For it would be unreasonable to conclude that the publication of truths,” the court wrote, “which it is the interest of the people to know, should be an offence against their laws.”[175] Far from reinforcing the common law, the court’s “novel dictum that publication of truth as to the characters of elective officers, or of candidates for such office, was not a libel” was a “judicial enlargement of the freedom of the press.”[176]

In McKee, Justice Thomas ignores this aspect of Clap. He focuses instead on what Clap said about false charges:

For the same reason, the publication of falsehood and calumny against public officers, or candidates for public offices, is an offence most dangerous to the people, and deserves punishment, because the people may be deceived, and reject the best citizens, to their great injury, and it may be to the loss of their liberties.[177]

But this does not carry Justice Thomas as far as he suggests it does. The court in Clap held that false statements relating to public officials were unprotected “for the same reason” that truthful ones were protected.[178] Clap did not find false statements “most dangerous” because of the supposed common law rule that officials were inherently deserving of more protection than others.[179] Rather, it found false statements unprotected because of their tendency to undermine republican debate.

In this way, the court’s logic in Clap had one vitally important thing in common with Sullivan: the common law of libel must be considered against the backdrop of ensuring republican debate. This notion was nowhere to be found in the English common law of libel; it was a novel American way of thinking about it. While reaching different results, both Sullivan and Clap recognized that speech about public officials was different in kind than speech about private persons. One implicated the public’s interests; the other did not. And, in the case of speech about public officials, both Sullivan and Clap sought to protect the “free trade in ideas” within “the competition of the market” by easing the rules of the common law of libel. The difference between them was that Sullivan aimed to protect inputs (the introduction of new ideas into the system) while Clap aimed to protect the outputs (the result of the debate) – while the English law on which Justice Thomas leans so strongly cared about neither.

People v. Croswell.

In 1804, the New York Supreme Court – then the State’s highest court – decided an “interesting and celebrated” case on “a very important and much litigated subject of jurisprudence.”[180] Harry Croswell, a New York printer, had published in The Wasp allegations that Thomas Jefferson had paid James Callender, a prominent republican printer, to call George Washington “a traitor, a robber, and a perjurer” and for calling John Adams “a hoary-headed incendiary.”[181] Croswell asked that the trial be delayed until he could have Callender, who would prove that the allegations were true, travel from Virginia.[182] The judge refused, and, at trial, the jury found Croswell guilty, having been instructed that “it was no part of the province of a jury to inquire or decide on the intent of the defendant; or whether the publication in question was true, or false, or malicious.”[183] The only question for it was whether Croswell published the allegations in his newspaper.[184]

On appeal, as in Clap, the issue was again whether “the defendant [may] give the truth in evidence.”[185] A separate issue was whether it was the province of the jury to decide both law (i.e., the existence of a malicious falsehood) and the fact (i.e., publication by the defendant).[186] Alexander Hamilton, who, among many things, was one of New York’s delegates to the Constitutional Convention, defended Croswell in one of the great early examples of American understandings of freedom of the press. He began his argument on Croswell’s behalf with the question of whether evidence of truth should have been allowed. He argued that it did. The doctrine of greater the truth, greater the libel, he said, “originated in a polluted source, the despotic tribunal of the Star Chamber.”[187] Since the earliest days of England, the defendant had been allowed to prove the truth of the charge and, to the extent that later authority was to the contrary, it came from the Star Chamber and could not alter the common law.[188] Even the Sedition Act, Hamilton argued, required that falsity must be proven.[189] Hamilton also argued that “the court cannot judge of that intent.”[190] Instead, “the jury must find it.”[191] The “intent constitutes the crime” in libel cases, because the act of printing itself was not unlawful.[192] On this question, the “time and circumstances” of the alleged libel are “very material.”[193] Thus, a jury must be able to inquire into the context in which the alleged libel was printed.

On reply to the attorney general’s arguments, Hamilton proposed a new rule: “The liberty of the press consisted in publishing with impunity, truth with good motives, and for justifiable ends, whether it related to [public] men or to measures.”[194] This, he argued, was necessary in a government where the governors were representatives of the people:

To discuss measures without reference to men, was impracticable. Why examine measures, but to prove them bad, and to point out their pernicious authors, so that the people might correct the evil by removing the men? There was no other way to preserve liberty, and bring down a tyrannical faction. If this right was not permitted to exist in vigour and in exercise, good men would become silent; corruption and tyranny would go on, step by step, in usurpation, until, at last, nothing that was worth speaking, or writing, or acting for, would be left in our country.[195]

Nor did intent stand separate from truth. Instead, “[t]he question how far the truth is to be given in evidence, depends much on the question of intent.”[196] And if the jury must decide intent, as Hamilton argued, it must also be able to pass on the truth of the charge because truth is “a requisite,” a “means to determine intent.”[197] From the Roman Empire forward, he argued, “falsity was an ingredient in the crime,” and the common law continued to require it.[198]

New York’s arguments to the contrary, Hamilton said, were derived from the “polluted source” of the Star Chamber.[199] That was not “the court from which we are to expect principles and precedents friendly to freedom.”[200] It was the “most arbitrary, tyrannical and hated tribunal.”[201] Being able to give truth in evidence, on the other hand, was “all-important to the liberties of the people,” because truth was “an ingredient in the eternal order of things.”[202] Hamilton, ever the Federalist, thus “felt a proud elevation of sentiment” in the Sedition Act having “established this great vital principle.”[203] He therefore concluded that being allowed a defense of truth was “essential to the preservation of a free government; the disallowance of it fatal.”[204]

The court split, 2-2, leaving Croswell’s conviction in place and no judgment was issued. Morgan Lewis, the chief judge and a Jeffersonian, along with Brockholst Livingston, who would soon become an associate justice on the Supreme Court, would have adopted the common law view that truth was not a defense.[205] However, Judge James Kent, a Federalist, and his colleague Smith Thompson, a Republican who would also soon become an associate justice, would have agreed with Hamilton that truth and good motives was a defense to a libel charge.[206]

Like the opinion in Clap,Judge Kent’s opinion in Croswell is some of the best evidence of the early debates over the collision of libel law and freedom of the press. More importantly, it is the best evidence of whether and why courts thought a publisher’s intent was important. Libel, Kent observed at the outset, “is a defamatory publication, made with a malicious intent.”[207] Where the jury found the defendant published the libel, malice was presumed to exist. But, he questioned whether malice should be presumed: “There can be no crime without an evil mind.”[208] Thus, he thought the jury should have the chance to decide (1) whether the defendant published the libel and (2) the “particular intent and tendency that constitutes the libel.”[209]

Judge Kent believed that the jury should be given the chance to decide both questions, because, echoing Hamilton, “[o]pinions and acts may be innocent under one set of circumstances, and criminal under another.”[210] As he explained:

[W]hat can be a more important circumstance than the truth of the charge, to determine the goodness of the motive in making it, if it be a charge against the competency or purity of a character in public trust, or of a candidate for public favour, or a charge of actions in which the community have an interest, and are deeply concerned?

To shut out wholly the inquiry into the truth of the accusation, is to abridge essentially the means of defence. It is to weaken the arm of the defendant, and to convict him, by means of a presumption [of malice], which he might easily destroy by proof that the charge was true, and that, considering the nature of the accusation, the circumstances and time under which it was made, and the situation of the person implicated, his motive could have been no other than a pure and disinterested regard for the public welfare.[211]

When it came to “public libels,” Judge Kent added, falsehood had always been “a material ingredient” in a prosecution.[212] Agreeing with Hamilton, he said that the civil law (that is, law descending from the Romans as opposed to the common law descending from the English) had long permitted truth as a defense in cases reaching public persons.[213] English courts too – despite the Star Chamber – had “occasionally admitted” it.[214]And, in “this country,” the rule had “taken firmer root”: “in regard to measures of government, and the character and qualifications of candidates for public trust, it is considered as the vital support of the liberty of the press.”[215]

To the extent English law was not in accord, Judge Kent rejected it. The Star Chamber, which denied truth as a defense at the height of its “terrors,” was an outlier.[216] And its doctrine of the greater the truth the greater the libel was incompatible with political debate in the States: “There be many cases . . . where a man may do his country good service, by libelling; for where a man is either too great, or his vices too general to be brought under a judiciary accusation, there is no way but this extraordinary method of accusation.”[217] In other words, at times, people might have an affirmative obligation to libel public officials.

Importantly, Judge Kent then disavowed the common law altogether: “But, whatever may be our opinion on the English law, there is another and a very important view of the subject to be taken, and that is with respect to the true standard of the freedom of the American press.”[218] Unlike in England, he wrote, “the people of this country have always classed the freedom of the press among their fundamental rights.”[219] The first Congress, he pointed out, had placed freedom of the press as one of the “five invaluable rights, without which a people cannot be free and happy.”[220] The importance of the freedom of the press consisted, Congress declared in 1774, “in its diffusion of liberal sentiments on the administration of government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs.”[221] In the New York Ratifying Convention of 1788, the delegates declared that “the freedom of the press was a right which could not be abridged or violated.”[222] And, Judge Kent observed, the “same opinion is contained in the amendment to the constitution of the United States, and to which this State was a party,” as were state constitutions, including Ohio and Pennsylvania, which already provided for truth as a defense in criminal cases relating to public officials.[223] Even the Sedition Act provided truth as a defense.[224]

Judge Kent called these acts “the highest, the most solemn, and commanding authorities, that the state or the nation can produce.”[225] And, he said, “[i]t seems impossible that [the Founders] could have spoken with so much explicitness and energy, if they had intended nothing more than that restricted and slavish press [in England], which may not publish any thing, true or false, that reflects on the character and administration of public men.”[226] Expanding on this sentiment, he added:

And if the theory of the prevailing doctrine in England (for even there it is now scarcely any thing more than theory) had been strictly put in practice with us, where would have been all those enlightened and manly discussions which prepared and matured the great events of our revolution, or which, in a more recent period, pointed out the weakness and folly of the confederation, and roused the nation to throw it aside, and to erect a better government upon its ruins?

They were, no doubt, libels upon the existing establishments, because they tended to defame them, and to expose them to the contempt and hatred of the people. They were, however, libels founded in truth, and dictated by worthy motives.[227]

Judge Kent thus adopted, “as perfectly correct, the comprehensive and accurate definition of one of the counsel at the bar, that the liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals.”[228]

The opinion thus declared inapplicable the common law of libel in England precisely because the United States was based on a different kind of government requiring a different conception of freedom of the press. Kent and Hamilton’s rule ended up being incorporated into several state constitutions – affirmative choices by those states to depart from what the common law had been towards something new.[229] While the rule might seem less than protective today, at the time, it was a giant leap forward and away from what the common law of libel demanded. Hamilton’s rule was “forward-looking then, regressive today, but in the surge of history, understandable.”[230]

Lewis v. Few

Lewis v. Few is a perfect example of the far reaching consequences that putting intent into play had on the common law of libel.[231] In 1809, Morgan Lewis – as it happens, the same Morgan Lewis who voted against Hamilton in Croswell – sued after William Few denounced Lewis’ “attempts to destroy the liberty of the press” at a public meeting about the upcoming election for governor and in the American Citizen newspaper.[232] (A fact pattern that comes with a healthy dose of irony.) By that time, Lewis had become Governor of New York and Few charged Lewis with “hostility towards the republican cause.”[233]

Among other defenses, Few’s counsel sought an extension of Judge Kent’s observations in Croswell about the importance of intent. He argued that, to secure a verdict in favor of the plaintiff, it must be shown both that the words are false andthat they were uttered with malicious intent.[234] He thus carried Hamilton’s argument a step forward, by asserting that intent might matter even when the statement at issue is false. Pointing to a strand of the common law of England, counsel drew an analogy between the servant/master privilege that had been developing there and the governors/governed in the United States: “Where the words are spoken, bona fide, by a master, concerning the character of a servant, though the specific acts or crimes are charged,and which turn out to be false, yet no action lies.”[235] In such cases, “The words must be proved to be malicious, as well as false.”[236]

In cases like the one before the court where the target of the alleged libel was a public official, Few’s counsel argued that consistent with this principle “[t]he people must be regarded as the sovereign or master, and the persons elected as their agents or servants.”[237] Continuing that line of reasoning, Few’s counsel argued, “It is essential, in an elective government, that the people should be at liberty, bona fide, to express their opinions of any public officer, or candidate for office.”[238] As such, for Lewis to prevail, he would have to prove both falsity of the charge and that Few acted from bad motives.

Lewis’ counsel did not appreciate Few’s attempt to import the servant/master privilege into the context of libels on public officials and extend Hamilton’s rule even further. As he put it, “the defence now set up,” that is, a showing that a charge was both false and malicious, “was never thought of” in Croswell and it seemed “to have been reserved for the ingenuity of . . . defendant’s counsel here, to suggest this new doctrine for the first time.”[239] The People, Lewis’ counsel said, “may freely speak, and publish the truth, and the whole truth: but this cannot authorize them to publish falsehoods . . . concerning public candidates.”[240]

The court sided with Lewis. Thompson, the judge in Croswell who voted with Kent, delivered the opinion.[241] It was argued, Judge Thompson wrote, that “being the act of a public meeting, of which the defendant was a member, and the publication being against a candidate for a public office, have been strenuously urged as affording a complete justification.”[242] Essentially, the defendant was asking for a libel-free zone where allegations made against a public official at a public meeting “is beyond the reach of legal inquiry.”[243] To this, Judge Thompson said, he could “never yield [his] assent,”[244] adding that he could not find “any analogy whatever” to support the argument advanced.[245] To be sure, citizens had a “right to assemble, and freely and openly to examine the fitness and qualifications of candidates for public offices, and communicate their opinions to others,” but, in doing so, they must not “transcend the bounds of truth.”[246]

While he did not accept that a false charge uttered bona fide could be privileged, Judge Thompson did agree to a degree. He accepted that a false charge shown to have been uttered bona fide could mitigate damages – a still nascent idea both in England and in the United States.[247] While that issue was not before the court, he added, “[e]very case must necessarily, from the nature of the action, depend on its own circumstances, which are to be submitted to the sound discretion of the jury. It is difficult, and perhaps impracticable, to prescribe any general rule on the subject.”[248] Thus, while Few did not win on liability, Thompson opened the door to reduced damages on remand – one of the earliest cases in the States to do so – based on a good faith belief in the charge.

Lewis was a bookend on these early cases. While the rule prevailing at common law was that even truth was no defense to a libel, Lewis and these other cases show litigants arguing early on and some courts agreeing that, for a republican government to be successful, the more draconian aspects of English libel law had to be relaxed. Although in a monarchical England it may well have made sense that the common law of libel was enforced with an iron fist when it came to libels on the monarchy and its magistrates, i.e., public men, in the United States where the governors did not rule over the people but were agents of them, such rules made little sense. In this way, these cases remind us of what Justice Joseph Story once said, that the “common law of England is not to be taken in all respects to be that of America.”[249] Instead, “[o]ur ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.”[250] In the place of those parts left behind in the law of libel, early courts injected principles like truth and intent – principles that provided play in the joints between the common law’s speech-suppressing tendencies and a republican form of government that requires speech to work.

Of course, Clap, Croswell, and Lewis are just three early cases among many – and Lewis did not come out in favor of the defendant. Many courts did impose the common law of libel as adopted in England on the newly minted American citizens. As one commentator lamented, “[o]ur own judges seem to have forgotten that the founders of the government are not distinguished for their reception of the English common law but for their adaptation of the democratic leaning and tendency of the constitutional side of it to a new career of popular freedom and equal justice.”[251] If anything though, that cases like Clap, Croswell, and Lewis exist demonstrates that there was no unanimity as Justice Thomas suggests there was and, further, that ideas about the significance of intent were not simply created out of whole cloth in Sullivan.

True enough, none of these courts adopted Sullivan’s actual malice rule – although counsel in Lewis essentially argued for it some 150 years before Sullivan – more than two hundred years ago now. But you see in these decisions glimmers of the considerations that would come to the fore in Sullivan (and, as we will see, long before Sullivan too). There is no reasonable argument that it was only the Supreme Court in the last half of the twentieth century that thought a conflict between the common law of libel and freedom of the press existed. The common law of libel and freedom of the press in the United States have always chased each other’s shadows.

For those unconvinced by this sampling of cases, we can turn our attention to the legal treatises of the time that demonstrate the same principles.[252] An overarching theme in nineteenth century legal treatises touching on liberty and libel was, as well, the importance of the freedom of the press to a republican form of government.[253] Of course, they recognized the value of reputation, but that had long been understood. Most of their pages, much like those of the decisions in Clap and Croswell, were occupied by discussions about how to soften the harsh rules of the common law to allow room for republican debate. That the debate raged is evidence alone that the common law of libel was not simply accepted uncritically, as Justice Thomas seems to suggest. (Although even Justice Thomas, in McKee, admitted as much before trying to explain it away: “It is certainly true that defamation law did not remain static after the founding.”[254])Instead, these pages were the battlefields for intellectual debates over liberty and libel. The famed judge and commentator Thomas Cooley was then right when he recognized, in the 1860s, that liberty of the press in the United States “as now exercised, is of modern origin” – the history of the meaning of freedom of press in the United States is itself post-revolutionary.[255]

As such, it is not surprising that Justice Thomas does not rely on these American commentators and their post-revolutionary liberalization of the common law. These commentators had long since moved on from the English law’s cramped approach to liberty and libel because a change in government had intervened. Of the eleven of the most well-known nineteenth century commentators reviewed, only William Rawle adopted the narrow Blackstonian definition of press freedom, i.e., the English definition, without qualification.[256] The rest either rejected it or suggested, without outright rejection, that it was incomplete.

Tunis Wortman,[257] St. George Tucker,[258] James Kent,[259] Joseph Story,[260] and Cooley[261] all rejected traditional definitions of freedom of the press at common law in England. The rest, Nathan Dane,[262] Joseph Alden,[263] John Townshend,[264] and Samuel Merrill,[265] each seemed to embrace the traditional, narrow English understanding of press freedom, but they also endorsed the Hamiltonian, American view offered in Croswell – providing for truth as a defense in both civil and criminal cases.  In other words, just one of the eleven accepted English law unflinchingly.

Moreover, even those commentators who espoused more limited conceptions of freedom of the press, recognized that as of their writing public opinion was turning or had turned in favor of a more liberal view of press freedom. Kent, while unnerved by this development, admitted that the “tendency of measures in this country has been to relax too far the vigilance with which the common law surrounded and guarded character, while we are animated with a general anxiety to maintain freedom of discussion.”[266] For his part, Townshend criticized those who maintained that greater freedom of the press should be given to newspaper editors and dismissed as dicta language in cases contrary to his views.[267] Alden also criticized the “extravagant” contemporary views.[268] These observations are consistent with scholarly research, like Wendell Bird’s, that has concluded that early public opinion was strongly against the idea that freedom of the press in the United States was equivalent to that in England.[269] As one scholar explained, “[t]he common law meaning, at least of a free press, had been inherited from Blackstone’s England, but that concept never really took root in America.”[270]

Almost all commentators also rejected many of the strict rules of the common law of libel. They did so not least because defendants were arguing for and courts were adopting new rules or privileges to soften the law of libel. Chief among these was the importance of truth being allowed as a defense in both criminal and civil cases. Wortman said in 1800, “[i]t cannot be said that any Liberty of the Press is established by law, unless the publication of Truth is expressly sanctioned.”[271] A system that outlawed truth improperly rendered the “political magistrate inviolable” and protected him “from punishment or animadversion.”[272] Tucker said critics of public men were bound only “to adhere strictly to the truth; for any deviation from the truth is both an imposition upon the public, and an injury to the individual it may respect.”[273] Kent adopted as “perfectly correct” “that the liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends.”[274] Others, like Story, Dane, Alden, and Townshend, adopted a similar approach. Merrill, the last to write, observed that, “[s]ince the beginning of this century, the common law has been changed in this respect in every State in the Union.”[275]

Others questioned why harsh and anti-democratic rules of the common law of libel should be considered to have been imported from England into the United States. After reviewing some of these rules, Tucker wrote, “[w]hen we consider the source from whence these doctrines have been brought to us, the reasonableness of them ought to be examined before we yield our full assent to all of them.”[276] Cooley too doubted that the common law prohibitions on libels on government had been “adopted in the American states.” [277] Indeed, Cooley was less concerned with traditions at common law than he was with modern privileges that had since developed “for some reason of general public policy” that he believed to be “constitutional” in nature.[278]

Consequently, several commentators stressed that, in a republican form of government, public servants assumed the risk of public criticism, thus departing from the common law’s contrary rule. Wortman said that public officials should be made to stand on “the same footing with a private individual.”[279] Tucker wrote that statutes like scandalum magnatum, which gave special treatment to public officials, had no effect in the United States.[280] Kent recognized that libels on public officials might harm both public and private interests, but he argued that it was “equally careful that the liberty of speech, and of the press, should be duly preserved.”[281] Story criticized the common law’s treatment as an offense “the publication of which now seems important to the . . . proper observation of public officers by those interested in the discharge of their duties.”[282] Townshend admitted that “being a candidate for an office or for employment, in many instances affords a license or legal excuse for publishing language concerning him as such candidate.”[283] And Cooley observed that there were “certain cases where criticism upon public officers . . . is not only recognized as legitimate, but large latitude and great freedom of expression” is permitted.[284]

There was also a slow recognition, especially during the last half of the nineteenth century, that the common law’s tendency to stack the deck against the defendant by presuming the existence of fault was problematic too. Initially, Cooley observed that privileges developed at common law provided that “there were some cases to which the presumption [of fault] would not apply.”[285] Thus, where the speaker was under some recognized duty to speak, the privilege would “throw upon the plaintiff the burden of offering some evidence of [fault’s] existence beyond the mere falsity of the charge.”[286] Holmes would later recognize a line of cases holding similarly that, where a defendant was discharging some public duty in making the allegation, the plaintiff must show malice.[287] This included cases of “fair and reasonable comments on matters of public concern.”[288] Merrill made similar observations, emphasizing that courts had even begun to find falsity privileged if spoken in good faith and for a proper purpose.[289]

It was the more liberal commentators during this time who most often stressed that the decidedly republican form of government established in the United States required revisiting traditional rules of liability in the common law of libel and conceptions of freedom of the press in federal and state constitutions. As Wortman explained, intrusion on the right to speak the truth “is to declare open war against Political Enquiry, entirely destroy the responsibility of the Magistrate, and establish the throne of Absolute Despotism upon the ruins of Civil Liberty.”[290] Tucker agreed; in a representative government, a constituent could not “be restrained in any manner from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it.”[291] Or, as Kent put it, “[t]he liberal communication of sentiment . . . in respect to the character and conduct of public men, and of candidates for public favor, is deemed essential to the judicious exercise of the right of suffrage.”[292] According to Cooley, freedom of the press prohibited “any action of the government by means of which it might prevent such free and general discussion of public matters.”[293]

Even those who were less liberal in their sentiments, recognized the importance that freedom of the press played in a republican government. Dane said that it was “often difficult in a free country to draw the true line between a libel indictable and a publication to be allowed as a fair investigation of public measures, and of the characters of public men.”[294] And Rawle, while embracing Blackstone, admitted that “a free government begins to be undermined when freedom of speech on political subjects is restrained.”[295] Townshend, for his part, argued that a newspaper “may comment freely on the acts of government, officers or individuals and indulge in occasional mirth and wit, and it is only when the character of the publication is malicious, and its tendency to degrade and excite to revenge, that is condemned.”[296] These commentators simply believed that these republican values could survive even in the face of some of harsher rules of the common law.

In sum, contrary to Justice Thomas’ argument, there is a rich history dating back hundreds of years in this country that elevated republican debate over personal reputation. For the same reason, public officials in the United States were not put on the same pedestal they had been in the England. Instead, they had to suffer the roving eye of the public, as discussed at length below. For the time being, it is enough to observe, as Tucker did a decade into the nineteenth century, “if censure be too galling to [a public official’s] feelings, he might avoid it in the shades of domestic privacy.”[297] “[I]f flattery is the only music to his ear, or the balm to his heart” then “the indignation of the people ought immediately to mark him, and hurl him from their councils, and their confidence forever.”[298]


In this section, we dig deeper into whether the law of libel in the early United States treated public officials differently than others and, if so, how so. To deal with that question, we look to two lines of early cases first suggesting rules similar to Sullivan’s actual malice standard, which run from the eighteenth century on into the nineteenth. First, there are those cases that found that a defendant’s lack of actual malice might mitigate damages—much like Judge Thompson suggested in Lewis. Second, there are those that went further and recognized a privilege in cases involving public official plaintiffs whereby a defendant could escape liability so long as he had reasonable cause to believe an allegation was true—even where it turned out to be false. Each of these lines of cases, while not establishing the actual malice rule as it exists today, are the precursors to it.

A.         Absence of Actual Malice in Mitigation

By the late eighteenth century, libel law was rapidly developing in England. In 1792, Parliament adopted Fox’s Act, which gave power back to the jury to issue a general verdict in libel cases. No longer was the jury, even in England, relegated to deciding only whether the defendant published the libel. The changes, however, were not limited to Parliament, as the courts in England also began liberalizing the common law itself. A prime example is Knobell v. Fuller.[299]

In Knobell, the defendant was a conservative daily news publication: The Morning Post.[300] The alleged defamation was that Knobell, along with a co-conspirator, had swindled money from friends and family of felons in exchange for securing pardons.[301] The co-conspirator was charged for the crime, but Knobell was not.[302] While the newspaper could not muster proof that the allegations against Knobell were true, it nevertheless sought to offer as mitigating evidence that there were “strong grounds of suspicion against” Knobell.[303] As defense counsel explained, “they might prove facts which showed there was cause of suspicion, and therefore proved that the defendants were not induced to publish this paper by reason of malice against the plaintiff.”[304] Instead, the evidence would show that they published “for the purpose of conveying information to the public, this being a concern of a public nature.”[305] Such evidence, counsel argued, should reduce the damages—even though it could not absolve the paper of liability altogether.

Chief Judge James Eyre agreed, holding that evidence tending to show a belief in the truth of the allegations could be offered to mitigate damages.[306] He admitted the evidence and allowed defense counsel to call two witnesses to demonstrate that Knobell was implicated in the scheme, although he turned out not to be a part of it.[307] The jury then found in favor of Knobell and awarded him 200 shillings.[308] While the press lost the battle that day, a war was won. Knobell v. Fuller established the rule—for the first time—that a journalist’s intent in publishing the news was relevant insofar as it might be offered to reduce damages. The value judgment made sense: there is a material difference regarding culpability as between a defamatory statement that was mistake and one that was an outright lie.

By 1803, the principle in Knobell found its way across the Atlantic. In Kennedy v. Gregory, decided by the Supreme Court of Pennsylvania, a schoolmaster sued after being labeled a drunk.[309] At the trial court, as in Knobell, the defendant attempted to offer evidence that the charge was not fabricated.[310] Instead, he had been told by another that Kennedy had a reputation for drinking.[311] The court, however, did not permit the evidence, and the jury found in favor of Kennedy.[312]

The verdict did not survive the appeal though. Rather, two of the three justices found that the evidence of Kennedy’s reputation should have been admitted: it was relevant that the defendant be able to produce evidence that he had been told that Kennedy had a reputation for drinking “to take off all presumption that the charge was a fabrication of his own.”[313] As the court had in Knobell, the Pennsylvania Supreme Court recognized that there was a difference in fault as between a wholly fabricated charge and a charge made in reliance on another source, even if ultimately wrong.

Thereafter, courts in Pennsylvania repeatedly allowed evidence showing that the defendant believed the charge even if he was ultimately mistaken. In 1806, a court found that the defendant should be allowed to “give evidence of circumstances which had induced a suspicion of felony” by the plaintiff.[314] And in 1808, the court agreed with William Duane, the firebrand publisher of the Aurora, who had argued for the application of the principle:

Can it be, that like damages should be given against two defendants, one of whom received his information from such sources as were entitled to a certain degree of credit, while the other devised it by his own wicked imagination? I think it cannot. Such evidence certainly goes to the degree of malice . . . .[315]

Nor was the principle limited to Pennsylvania. In Larned v. Buffinton, [316] a Massachusetts defendant alleged that the plaintiff had stolen his horses. At trial in 1807, the defense argued that he should be allowed to submit evidence of his belief in the charge to mitigate damages.[317] The trial court, however, refused to hear it.[318] As in Kennedy,the ruling was reversed on appeal: “When, through the fault of the plaintiff, the defendant . . . at the time of speaking the words . . . had good cause to believe they were true, it appears reasonable that the jury should take into consideration this misconduct of the plaintiff to mitigate the damages.”[319] Likewise, in South Carolina, a defendant could show “a ground of suspicion” for the charge to reduce damages.[320] The same rule was recognized in Connecticut.[321] In Ohio, damages could be mitigated by “[a]ny circumstance, therefore, tending to show that the defendant spoke the words under a mistake, or that he had some reason to believe they were true.”[322] In Indiana, “general rumors, or a general suspicion of the guilt of the plaintiff of the crime imputed to him by the defendant, may be given in evidence in mitigation of damages.”[323]

The thrust of this early doctrine is remarkably similar to that of today’s actual-malice rule: courts must consider a defendant’s state of mind at the time of publication in order to assess the degree of fault that accompanied the libel. And as the law developed, this idea, paired with a recognition of the social importance of statements about matters of public concern, would transform into a privilege closer to the one we know today, becoming a bar to liability. Justice Thomas, however, did not consider this early case law or the body of precedent that developed shortly thereafter that barred recovery in public official cases, even in cases of falsity, so long as the falsity was the result of an honest mistake.

B.         Absence of Actual Malice as a Bar to Liability

Although the court in Lewis v. Few rejected Few’s argument in favor of privileged falsity, the analogy that his counsel offered between the master/servant privilege and the governed/governor privilege was hard to shake: If the People are the masters of their government, and their representatives in government are their servants, the People should be privileged to discuss their servants’ conduct just as masters were privileged to make statements about servants.[324] But the idea, however sensible, was also radical. Courts in the early nineteenth century struggled with how or whether they could honor the gaudy relics of the common law that made public discussion about public men dangerous in a system of government reliant on that very discussion.

As with an absence of actual malice admissible in mitigation of damages, the master/servant privilege also came from a leading case in England, Weatherston v. Hawkins.[325] In that 1785 case, Hawkins sent his servant, Weatherston, to buy a few books at the local market.[326] Hawkins, “more curious” than he sometimes was, looked over the servant’s account “article by article, and in one, a book [he] well knew the price of, [he] found [the servant] had charged [him] one shilling more than it cost, and that shilling he kept in his pocket.”[327] Hawkins then relayed this assessment in a letter to an acquaintance who was considering hiring Weatherston.[328]

Weatherston brought a defamation lawsuit based on the allegations. At trial, Hawkins did not attempt to show that the charge was true as, evidently, it was not, despite Hawkins’s prior math, and the jury found in favor of Weatherston.[329] On appeal, Lord Chief Justice Mansfield, having heard from Weatherston’s counsel, did not even let the defendant’s barrister speak. Instead, he said:

I have held more than once that an action will not lie by a servant against his former master for words spoken by him in giving a character of the servant. . . . to every libel there may be a necessary and implied justification . . . . Words may . . . be justified on account of the subject-matter, or other circumstances.”[330]

Where it was a master providing an assessment of a servant in response to another seeking a reference, he thought it should be privileged.[331]

Although Few’s counsel in Lewis appears to have been the first in the United States to attempt to draw the analogy, he was not the last. In the 1830s, in State v. Burnham,[332] the defendant in a criminal libel prosecution alleged that the lawyer for Strafford County, New Hampshire was “intemperate” and “incompetent to the discharge of the duties of his said office.” This was not some offhand remark; the defendant printed two hundred copies of it and sent it to his fellow citizens.[333] At trial, the defendant argued that, if he made the charges against the lawyer “in good faith, with pure motives, and upon probable grounds” to believe it, then it was irrelevant whether the charge was true.[334]

Unlike in Lewis, the court accepted the argument. As the Superior Court of Judicature of New Hampshire explained, “it is not expedient that the errors, or foibles, or even the crimes of individuals, should be made the subject of written publication, except for the purpose of answering some good end.”[335] Elaborating on the exception, it found that Hamilton’s rule—that freedom of press meant the freedom to publish the truth from good motives—was too narrow.[336] Instead, a defendant could excuse his conduct if, “upon a lawful occasion, [he] proceeded with good motives—upon probable grounds—upon reasons which were apparently good, but upon a supposition which turns out to be unfounded.”[337] In short, the court held for the first time that falsity may be privileged and a lack of actual malice might be a defense.

What were such lawful occasions? They included “removal of an incompetent officer, [preventing] the election of an unsuitable person, or, generally, to give useful information to the community . . . in order that they may act upon such information.”[338] That is, the court sought to protect from liability allegations affecting a republican government. Recognizing that it “would be an idle and vain attempt, to endeavor to reconcile all the discussions in the books upon the subject,” the court expressed its confidence that it had provided “sound practical rules, which, while they give no countenance to defamation, protect all persons in publishing, upon lawful occasions, the truth from whatever motives, and what they have reason to believe the truth, if it is done with motives which will bear examination.”[339]

Burnham, like Weatherston before it, had staying power.[340] Some 30 years later, during the Reconstruction, the Superior Court of Judicature of New Hampshire doubled down. In Palmer v. City of Concord,[341] the court explained:

[I]n this country every citizen has the right to call . . . attention . . . to the mal-administration of public affairs or the misconduct of public servants, if his real motive in so doing is to bring about a reform of abuses, or to defeat the re-election or re-appointment of an incompetent officer. If information given in good faith to a private individual of the misconduct of his servant is ‘privileged,’ equally so must be a communication to the voters of a nation concerning the misconduct of those whom they are taxed to support and whose continuance in any service virtually depends on the national voice.

Other state courts adopted similar reasoning based either on the master/servant analogy to Weatherston or on a rapidly developing, related privilege in England: “If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications [‘made by a person in the discharge of some public . . . duty, whether legal or moral’] are protected for the common convenience and welfare of society.”[342]

To offer just one other example, take the Supreme Court of Texas in Express Printing Co. v. Copeland:[343] “Whatever pertains to the qualification of the candidate for the office sought is a legitimate subject for discussion and comment, provided that such discussion and comment is not extended beyond the prescribed limits.” Those limits were that such discussion “must be confined to the truth, or what in good faith and upon probable cause is believed to be true.”[344] Elaborating on its rationale, the court explained that, “[i]n our form of government the supreme power is in the people; they create offices and select the officers.”[345]It then posed a rhetorical question: “[A]re the people to be denied the right of discussion and comment respecting the qualification or want of qualification of those who, by consenting to become candidates, challenge the support of the people on the ground of their peculiar fitness for the office sought?”[346]

Courts in Iowa, Vermont, Minnesota, Michigan, Kansas, Rhode Island, Pennsylvania, and South Dakota all adopted similar rules in public official cases.[347] That these cases exist, in legions, nonetheless, should not be surprising. Sullivan itself noted the existence of a common law “privilege immunizing honest misstatements of fact”—an accurate assessment that belies Justice Thomas’ assertion that the common law privilege “applied only when the facts stated were true” (or Justice Gorsuch’s statement that the controlling view of freedom of the press in the United States was that of Blackstone: “if he publishes falsehoods ‘he must take the consequence of his own temerity’”[348]).

In Sullivan, Justice Brennan discussed at length one such case: the 1908 Kansas Supreme Court decision in Coleman v. MacLennan.[349] In Coleman,the Topeka State Journal published an article addressing certain school-funding transactions directed by a commission on which plaintiff, the state attorney general, sat. The Kansas Supreme Court posed the question as one of “utmost concern”: “What are the limitations upon the right of a newspaper to discuss the official character and conduct of a public official . . . ?”[350] Noting that the state constitution protected “liberty of the press,” the court observed that “[f]requently it is said that the expression was used in the sense it bears in the common law.”[351] This begged the question though: “The common law at what stage of its development?”[352]

“Certainly not,” the court said, when English settlers stepped foot on the eastern shores of the continent in 1607—fifteen years before the first newspaper would be published.[353] At that time, English law was the stuff of the Star Chamber and being “subservient to royal proclamations.”[354] Even after the Star Chamber was abolished in 1641, “Parliament assumed the prerogative respecting the licensing of publications.”[355] At this point, and through the end of the century, the liberty of the press in England was “more theoretical than actual on account of the harshness of the law of libel.”[356]

After reviewing the liberalization of defamation in England through the eighteenth century, the court observed:

[T]he English law of defamation is not the deliberate product of any period. It is a mass which has grown by aggregation . . . . The result is that perhaps no other branch of the law is as open to criticism for its doubts and difficulties, its meaningless and grotesque anomalies.[357]

The common law of defamation, the court said, “is, as a whole, absurd in theory, and very often mischievous in its practical operation.”[358] “The result,” it said, “is that ‘liberty of the press’ is still an undefined term.”[359]

Still, “[c]ertain boundaries are fairly discernible within which the liberty must be displayed, but precise rules cannot be formulated in advance to govern its exercise on particular occasions.”[360] The “constitutional guaranty clearly” meant at least that there shall be no prior restraints and that the press shall be free of court censorship.[361] Early commentators said the guarantee meant nothing more, but “later commentators and later decisions maintain that it does mean more.”[362] Quoting Cooley, the court explained, “it is nevertheless believed that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions.”[363] The freedom of the press, as Cooley (and the Kansas Supreme Court) saw it, implied:

a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their . . . scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals.[364]

But, the court said, there must be an exception when another interest is considered: “Where the public welfare is concerned, the individual must frequently endure injury to his reputation without remedy.[365] Indeed, “[i]n some situations an overmastering duty obliges a person to speak, although his words bring another into disrepute.”[366] In the court’s opinion, one such occasion was speech regarding the qualifications of public officials:

Under a form of government like our own there must be freedom to canvass in good faith the worth of character and qualifications of candidates for office, whether elective or appointive, and by becoming a candidate, or allowing himself to be the candidate of others, a man tenders as an issue to be tried out publicly before the people or the appointing power his honesty, integrity, and fitness for the office to be filled.[367]

While this could inconvenience public officials and occasionally injure their reputations, this injury was outweighed by “[t]he importance to the state and to society” to discuss public officials’ qualifications.[368]

Turning to the rule to be extrapolated from these principles, the court explained, as so many courts had held before it, “we think a person may in good faith publish whatever he may honestly believe to be true . . . without committing any public offense, although what he publishes may in fact not be true, and may be injurious to the character of others.”[369] Without allowing for honestly mistaken statements, the “liberty of press [would] be endangered if the discussion of such matters must be confined to statements of demonstrable truth.”[370] Thus, “[i]f . . . the author were obliged to justify every statement by evidence of its literal truth, the liberty of public discussion would be unworthy of being named as a privilege of value.”[371]

Coleman was the intellectual capstone of early American cases that had transformed the common law rules in Knobell and Weatherston into safeguards for republican debate in the United States.[372] Together, these cases demonstrate that the common law of libel did consider a lack of actual malice as a defense to a defamation claim by a public official, even for false statements of fact—and did so precisely because of the chilling effect that unrestrained libel lawsuits could have on public discourse about political life. Justices Thomas and Gorsuch are, therefore, mistaken on multiple counts. First, common law privileges “on public questions and matters of public interest” were not “applied only when the facts stated were true.”[373] Second, the common law in the eighteenth and nineteenth centuries did not “deem[] libels against public figures to be, if anything, more serious and injurious than ordinary libels.”[374] These cases made it harder for such individuals to recover damages—not easier.

In 1888, Newspaper Libel, A Handbook for the Press hit the shelves. At a slim 300 pages, it billed itself as the first “convenient [legal] reference [for] newspaper offices.”[375] In the chapter “Political Libels,” the handbook advised its readers that, “[a]mong the various publications which are protected by the law of privilege . . . are those respecting public men and candidates for public office.”[376] Based on that, it instructed, “if the charges are based upon some foundation in fact . . . and published in good faith, the publication is privileged, even though it contains false imputations upon the integrity of persons whose conduct is being considered.”[377]

It is not then true, as Justice Gorsuch wrote in Berisha, that there was one “accepted view” of libel for “two centuries” that allowed for the recovery of damages in all cases concerning “false publications.”[378]By the end of the nineteenth century, the precursor to the actual malice rule was already a part of desk references for journalists. If anything, Sullivan was a product of the common law, a constitutionalization, first suggested by Cooley, of an increasingly important doctrine meant to protect discussion about public officials. That is to say, Sullivan’s actual malice rule was a natural extension of what came before it. As the Handbook for the Press explained, the privilege was born of the very structure of American government: “When the American colonies united under a republican form of government, the writers for the press in this country considered all restraints removed . . . .”[379] Yet, again, for our purposes it suffices to say that Sullivan does not“lack . . . historical support.”[380]

Even acknowledging the ample historical support for putting additional burdens on public officials, there is still the question of whether such burdens should be placed on public figures who, the argument would go, lie farther from the republican rationale for an actual malice rule. The petition in Berisha, after all, attacked not the actual malice rule under Sullivan, but the rule as applied to public figures in cases like Curtis Publishing Co. v. Butts.[381]

Yet, as with public officials, there is historical support for extension of the actual malice rule to public figures. In the common law doctrine of fair comment, for example, we see judicial recognition of the flaws in a rule that protects public debate only when it involves discussion of public officials. As Martin Newell’s treatise explained, “[e]very person has a right to comment on matters of public interest and general concern, provided he does so fairly and with an honest purpose.”[382] Traditionally, the doctrine was limited in several respects. It applied only to matters that “invite public attention . . . never attack[] the individual, but only his work . . . never impute[] or insinuate[] dishonorable motives . . . [and] never take[] advantage of the occasion to gratify private malice.”[383]

The contexts in which fair comment was allowed, however, tell us what early citizens understood to be topics of discussion that merited additional protection from defamation liability. In these cases, the law spoke neither of public officials nor public figures, but rather public men and public conduct generally.[384] As one nineteenth century treatise said, “[a]ll political, legal and ecclesiastical matters [were] matters of public concern.”[385] Simply, “[a]nything that is a public concern to the inhabitants is a matter of public interest within the meaning of the rule.”[386] Thus, the doctrine covered: (1) “[m]atters concerning the administration of the government” and (2) “[m]atters pertaining to the administration of public justice,” but also those relating to (3) “the management of public institutions” like “colleges, hospitals, [and] asylums”; (4) “appeals for public patronage,” like “artists, public writers, [and] lecturers”; (5) “the character and quality of public entertainments,” like “theatrical and musical performances”; and (6) “religious bodies.”[387]

With respect to all of these matters, there was a common rationale: by moving into the public eye, one acquiesced to its gaze. As the same treatise explained in the context of public patronage, “a person [who] appeals to the public by writing letters to the newspapers, either to expose what he deems abuses or to call attention to his own particular grievances . . . cannot complain if he gets the worst of it.”[388] Another example: if a “medical man brings forward some new method of treatment, and advertises it largely as the best, . . . [h]e may be said to invite public attention.”[389] In short, “[w]hoever seeks notoriety or invites public attention is said to challenge public criticism; and he cannot resort to the law courts if that criticism be less favorable than he anticipated.”[390]

While the doctrine of fair comment was, ostensibly, limited to matters of opinion and did not extend to allegations against a public person’s private character, in several nineteenth century cases, courts extended the doctrine developed in early public official cases to public figures to protect even false statements of fact. In Press Co. v. Stewart,[391] for example, the plaintiff opened a typing school “profess[ing] to be a teacher of short-hand writing, type-writing, and phono-scribing.” The offices he set up were “alluringly placarded with signs, and various devices in the way of circulars were scattered broadcast in the community calling attention to the merits of his system.”[392] When an editor’s attention was piqued by the “extravagant nature” of the advertisements, he sent a reporter to the new business.[393]

Reversing a lower court’s decision upholding the jury’s verdict in favor of the plaintiff, the Pennsylvania Supreme Court reasoned by analogy to cases adopting privileges in the public official context and held that “a communication to be privileged must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause.”[394] In such cases, malice would not be inferred. Instead, “[a]ctual malice must be proved before there can be a recovery.”[395] Realizing that it was extending the rule, the court said that it might be “asked why this article is so privileged.”[396] It was privileged not because the plaintiff was a public official (he wasn’t), but “because it was proper for public information.”[397] The plaintiff “was holding himself out to the world as a teacher and guide of youth [and] was seeking to attract them to his place by signs, placards, and advertisements, some of them, at least, of an extraordinary nature.”[398] As a result, “[t]his gave him a quasi public character.”[399] It made sense to require such a plaintiff to prove actual malice because “[w]hether he was a proper person to instruct the young” was a “matter[] of importance to the public, and the Press was in the strict line of its duty when it sought such information, and gave it to the public . . . .”[400] The court added, “if that information tended to show that the plaintiff was a charlatan, and his system an imposture, the more need that the public, and especially parents and guardians, should be informed of it.”[401]

Courts also extended this doctrine to titans of industry. In Crane v. Waters,[402] an 1882 case out of federal court in Massachusetts, the court found that a newspaper article about a railroad baron was privileged as well. There, the plaintiff alleged that the Boston Daily Advertiser had defamed him by suggesting he would run a particular railroad into bankruptcy.[403] The defendants, however, argued that the topic of the railroads was

one in which the public has an interest, and that in discussing a subject of that sort a public speaker or writer is not bound at his peril to see that his statements are true, but has a qualified privilege, as it has been called, in respect to such matters.[404]

The court agreed, finding that when the topic of discussion was “the public conduct and qualifications of a public man,” newspapers “are not held to prove the exact truth of their statements.”[405]

In finding that the defendant could prevail by showing that it published the statements believing them to be true, even if they turned out to be false, the court explained, “inasmuch as the project was one which affected a long line of road, as yet only partly built, and the consolidation of several companies, it assumes public importance.”[406] “For this reason,” it continued, the character of the plaintiff, as a constructor and manager of railroads, seem to me to be open to public discussion when he comes forward with so great and important a project affecting many interests besides those of the shareholders of one road.”[407] Thus, “the defendants . . . have the qualified privilege which attaches to discussions of public affairs.”[408] In so holding, the court relied not on the doctrine of fair comment but, like the Pennsylvania Supreme Court in Stewart, the analogy to cases adopting an actual malice defense.[409]

In Struthers v. Peacock,[410] an 1876 case, the plaintiff was an architect who had contracted with the city to provide certain services. The Philadelphia Bulletin alleged that the architect breached its contract with the city by procuring subpar marble for public buildings.[411] Instructing the jury, the judge spoke at length about what he called a “public journalists” privilege.[412] Having explained to the jury libel and malice, the judge moved to the issue of “whether these articles . . . are [nevertheless] deprived of malice by being what is called privileged communications, and whether they are within the proper province of the defendants as public journalists.”[413] Noting that the defendants were “publishers of a public journal,” he explained that it was “their right, and perhaps even their duty, to call attention to and make comments upon the manner in which the public buildings were being erected.”[414] The defendants “were probably doing the public a service in calling attention to the way the work was being done,” and such discussion must “be exercised freely without being subject to a too strict limitation.”[415]

Importantly, this privilege applied even if the article at issue was false. As the court emphasized in Struthers, such articles do not lose their “privileged character by going at times somewhat beyond the limit of strict truth, or beyond what the writer may be able to prove.”[416] This, the court continued, is because “[e]ditors are not infallible any more than other men, and a fair margin must be allowed to them for want of absolute accuracy, and for the necessities and the circumstances under which journalistic writing has to be done.”[417] That is, some breathing space must be allowed for inquiries by the press into the public affairs of others.

Admittedly, as with cases involving public officials, the courts were not unanimous in their protection of defendants who libeled public figures. In Smith v. Tribune Co.,[418] for example, Gerrit Smith brought a libel lawsuit against the Tribune Company for alleging that he faked lunacy in order to avoid criminal charges stemming from his involvement in the raid at Harper’s Ferry. In response, the Tribune argued that the libel was privileged because Smith “was a public man; that he professed to be a teacher and educator of the public; that he had been in the habit of delivering speeches and lectures from time to time, and made various publications under his own name and of which he was the recognized author.”[419] The court disagreed, noting that the allegations related not to those matters but to feigning lunacy; his public conduct was immaterial.[420]

Still, we see evidence that public figures in Pennsylvania and Massachusetts, as well as Vermont and Maine, including clergyman, unelected but high-profile political bosses, and those contracting to provide services to the government, were required to carry a heavier burden as defamation plaintiffs than private figures were.[421] Like Lewis v. Few before it, these cases demonstrate that, at least since the mid-1800s, a plaintiff’s involvement in public affairs could affect her burden in a libel case, even if she was not a public official. The idea being that, if her conduct affected public affairs, like a railroad baron’s conduct did, she should have to carry the same burden as a public official. True, in extending the actual malice rule to public figures in Butts, the Supreme Court did not, as Justice Thomas says, make “a sustained effort to ground [its] holding[] in the Constitution’s original meaning”—it relied instead on the obvious influence that public figures had over matters of public concern in the mid-twentieth century.[422] But that the Court did not rely on history to support its finding does not mean that there is no support in history for it. Thus, while Justice Thomas is not wrong about his characterizations of what the Court wrote in Butts, he is wrong in maintaining that the public figure rule “broke sharply from the common law of libel.”[423]


In arguing against the actual malice rule, Justice Thomas eschewed this American history in favor of an understanding of the English common law before the Founding. In McKee, for example, Justice Thomas cited Blackstone to demonstrate what a plaintiff traditionally had to prove to maintain a defamation action, the allowed defenses, the existence of criminal libel laws, and that libels against public officials were treated more seriously than other libels at common law.[424] He echoed Justice Byron White, who decades earlier said, “[t]he men who wrote and adopted the First Amendment were steeped in the common-law tradition of England.”[425] Those men “read Blackstone, ‘a classic tradition of the bar in the United States’” and “learned that the major means of accomplishing his speech and press was to prevent prior restraints.”[426] Justice Gorsuch, too, relies on Blackstone in his dissent in Berisha: “‘[E]very freeman has an undoubted right to lay what sentiments he pleases before the public’ but if he publishes falsehoods ‘he must take the consequence of his own temerity.’”[427] It was this principle, Justice Gorsuch wrote, that “extended far back in the common law and far forward into our Nation’s history.”[428]

But one cannot read Blackstone in a historical vacuum. In his Commentaries on the Laws of England,Blackstone maintained that “[t]he liberty of the press . . . consists in laying no previous restraints upon publications.”[429] But that was hardly the only view of the liberty of the press—especially in the United States. Founders like Thomas Jefferson and James Wilson hated Blackstone. And while we focus on them in this section, along with Blackstone’s editor in the United States, St. George Tucker, they were not alone. As James Madison wrote in the Report of 1800, the Blackstonian idea that freedom of press means freedom from previous restraints “can never be admitted to be the American idea of it: since a law inflicting penalties on printed publications, would have a similar effect with a law authorizing a previous restraint on them.”[430] Additionally, recent exhaustive scholarship has dispelled the assumption that Blackstone’s view of freedom of the press was the prevailing one in the early United States.[431]

While both Justices Thomas and Gorsuch have now invoked Blackstone, neither inquired into whether his view of the freedom of the press was shared by the Founders. There is, after all, a difference between an awareness or even an admiration of an author and agreement with an author. This is especially true where Blackstone’s Commentaries attempted to summarize the entire body of the English common law.For exactly that reason, Justice Thomas has recognized that Blackstone should not always be seen as controlling. As he wrote in Trump v. Mazars USA, LLP,[432] we need not rely on Blackstone if the law he summarized “had been a significant complaint of the American Revolution” and where the American experience “confirmed” a contrary precedent.

On Justice Thomas’ own logic, Blackstone and the English authorities he summarized should not be deemed controlling on the question of freedom of the press in the early United States.  Initially, freedom of the press was a significant complaint of the Revolution. As Arthur M. Schlesinger Sr. wrote in Prelude to Independence, in the run up to the Revolution, “[b]ristling controversial articles . . . signaled the change and inevitably brought the patriot prints into head-on collision with the English common law of seditious libel.”[433] As we have already seen, American experience confirmed contrary precedent to that of England—especially when it came to their rejection of common law rules meant to protect public debate.[434] Even the Sedition Act, after all, allowed for truth as a defense to a seditious libel charge, unlike in England. As Judge Kent explained, unlike the English, “the people of this country have always classed the freedom of the press among their fundamental rights.”[435] Thus, reliance on Blackstone in these matters, who Jefferson said did “more towards the suppression of the liberties of man, than all the million of men in arms of Bonaparte,” is fundamentally misplaced.[436]

William Blackstone was an Englishman born in 1723. He died in 1780, eleven years before the States ratified the First Amendment. He was a lawyer and a jurist, a politician and a professor.[437] During his life he was “described as a failure at the bar at the outset of his career and an inadequate judge at the end,” and as “not a particularly successful politician;” he was “by no means a scientific jurist” and had “only the vaguest possible grasp of the elementary conceptions of law.”[438] Nevertheless, his Commentaries, a four-volume work summarizing the whole of the common law,secured admiration in life and a legacy after his death. Published between 1765 and 1769 it was, in a word, “revolutionary.”[439]

Blackstone’s relationship with the liberty of press and libel, and his treatment of the two in the Commentaries, is bound up in his political devotion to the Crown and involvement in the colonial crisis of the 1760s.[440] While the Stamp Act was first a debate about the right and power of Parliament to impose taxes on the Colonies, it also sparked a dialogue about the meaning of the liberty of the press in America. The Act, after all, imposed taxes on newspapers. As John Adams said, it was repugnant not just for its direct effects but also its indirect ones: to “strip us in a great measure of the means of knowledge, by loading the Press, the Colleges, and even an Almanack and a News-Paper, with restraints and duties.”[441]

Parliament adopted the Stamp Act in 1765, a year that Adams said was the “most remarkable Year of my Life;” one that unleashed “the unconquerable Rage of the People.”[442] As he wrote in December of that year, “[t]he People, even to the lowest Ranks, have become more attentive to their Liberties, more inquisitive about them, and more determined to defend them, than they were ever before known or had occasion to be.”[443] The presses, he said, “have groaned, our Pulpits have thundered, our Legislatures have resolved, our Towns have voted, The Crown Officers have every where trembled.”[444] The result: the conflict over the Act cultivated “ideas of press freedom that were a crucial precedent to the new nation’s First Amendment guarantee of press freedom.”[445]

Blackstone, then a member of Parliament, “exhibited little sympathy for the grievances of American colonists” and he voted for the Stamp Act as an MP.[446] In response to the crisis and the Stamp Act’s ultimate downfall, Blackstone reissued the first volume of the Commentaries to make clear that, whatever might have happened with the Act, the Colonies remained subordinate to the Crown.[447] He emphasized the importance of the Declaratory Act of 1766, the face-saving measure passed along with the repeal of the Stamp Act: “[T]he [Declaratory Act] expressly declares, that all his majesty’s colonies and plantations in America have been, are, and of right ought to be, subordinate to and dependent upon the imperial crown and the parliament of Great Britain.”[448] In fact, it was Blackstone who brought a motion to expunge colonial resolutions claiming power to the contrary.[449]

Blackstone also used libel to maintain the political status quo, one where the powerful were unimpeachable. In the third book, Blackstone discussed libel as a “private wrong.” According to him, “injuries affecting a man’s reputation or good name are, first, by malicious, scandalous, and slanderous words, tending to his damage and derogation.”[450] Such injuries, he wrote, were especially heinous where the slanderous allegations were made of the peerage – that is, those in power.[451] Thus, even where allegations might not be slanderous at common law if made against “common” persons, the statutes of scandalum magnatum protected “high and respectable characters.”[452] “A second way,” Blackstone wrote, “of affecting a man’s reputation is by printed or written libels.”[453] In such a case, there were two causes that could be pursued: “one by indictment, another by action.”[454]

Blackstone elaborated on libel as a crime in the fourth volume, this time speaking of libels as “public wrongs.” Here, he again focused on the powerful, defining libel as “malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule.”[455] Because the wrong was provoking a breach of the peace or sowing discord between the King and his subjects, it was immaterial “whether the matter of it be true or false.”[456] It was “the provocation, and not the falsity” that was “to be punished criminally.”[457] As a result, the only elements of the crime were “first, the making or publishing of the book or writing; and, secondly, whether the matter be criminal.”[458] The punishment for these kinds of public libels was, Blackstone wrote, a “fine, and such corporal punishment as the court in its discretion shall inflict.”[459]

Apparently concerned about republican opposition to his position, Blackstone was quick to add that these punishments did not infringe on liberty of the press as then understood. While he admitted that a free press was “essential to the nature of a free state,” the liberty of the press consisted only in “laying no previous restraints” on publication.[460] Simply, liberty of the press meant only liberty from prior censorship. It did not foreclose subsequent punishments after publication for what one printed. As such, while “[e]very freeman has an undoubted right to lay what sentiments he pleases before the public,” “if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.”[461]

While Blackstone purported to summarize the liberty of the press at common law, his “definition of liberty of the press had not been the English judiciary’s definition before 1769.”[462] In fact, in 1755, William Murray, who would shortly become the Lord Chief Justice of the King’s Bench (that is, Lord Mansfield), said that “the liberty of the press is that of using your talents in writing, and that it admits of printing everything that don’t offend the laws, and the Crown has no prerogative now to demanded that license.”[463] Although Mansfield recognized that England’s system of prior restraint expired at the end of the seventeenth century, “he did not then equate the lapse of licensing with the totality of liberty of the press” as Blackstone did.[464]

In fact, “only a handful of writers had used a definition remotely like freedom from licensing and other prior restraint.”[465] As Wendell Bird explains in The Revolution in the Freedoms of Press and Speech, “[t]he majority of writers addressing the meaning of freedom of press continued to define it in a broad sense, even though Blackstone had just published his narrow definition.”[466] According to Bird, “[n]ewspaper essays sometimes cited Blackstone on English law, but his definition of freedom of press was conspicuously passed over and indirectly contradicted in most essays citing him during 1769-1775.”[467] Consistent with Bird’s views, a search for references to “previous restraints” in newspapers or correspondence of the Founders of the time return no results between 1769 and 1788; as far as books from the time, there are just a handful of hits.[468]

The first reference in the Founders’ early correspondence to “previous restraints” is a February 18, 1789, letter to John Adams from William Cushing, who within a year would be appointed to the Supreme Court.[469] In that letter, Cushing sought Adams’ advice on the meaning of the freedom of press clause in the Massachusetts Declaration of Rights. After reviewing the state of the law in England, Cushing wrote, “[t]he question is – whether it is law now, here” (his emphasis). The protection in the Declaration of Rights was “very general & unlimited,” and Cushing questioned what limits could be read into it. Invoking Blackstone, Cushing told Adams, “That is, no doubt, the liberty of the press, – as allowed by the law of England. But the words of our Article, understood according to plain English & common sense – make no such distinction, & must exclude subsequent restraints – as much as, previous restraints.” This must be the case, Cushing wrote, because “if all men are restrained, by the fear of jails, Scourges & loss of ears, from examining the conduct of persons in administration . . . from declaring it to the public; that will be as effectual a restraint, as any previous restraint whatever.”[470]

Blackstone’s definition was also disputed in the United States Congress, especially by Democratic-Republicans engaged in a pitched battle against the Sedition Act. In July 1798, Harrison Gray Otis stood on the floor of the House of Representatives in Philadelphia. Otis, a Boston millionaire and a leading Federalist, had the job of defending the Sedition Act, adopted earlier that year, from attacks by Democratic-Republicans like John Nicholas and Albert Gallatin. One of the main criticisms was that the Act violated the freedom of the press.[471] Otis disagreed and invoked Blackstone’s definition of liberty of the press as evidence that the Sedition Act was constitutional as it only punished speech; it did not restrain it. But Otis added, “[h]e would not . . . dwell upon the law of England, the authority of which it might suit the convenience of gentlemen to question.”[472] And, indeed, later in the debates, Gallatin rose to attack the Act, saying that it was an “insulting evasion of the Constitution” to say that the freedom of the press was not violated “so long as we do not prevent but only punish your writings.”[473]

Blackstone’s views on liberty and libel were, early on, subject to substantial criticism. Examples of this criticism abound, and Bird has catalogued many of them. The American Revolution, Bird offered, was a revolution against British ruleand, at the same time, a revolution “in rights against British law’s restrictions.”[474] Among the other rules revolted against in vindication of those rights was “an assertion or exercise of the narrow freedoms of press and speech described by Blackstone.”[475] In its place, new U.S. citizens argued for “expansive freedoms that allowed denunciation of the British government and monarchy and advocacy of a republican replacement.”[476] Put differently, “While the revolutionary colonists marched to radical Whig and other dissenting thought, Blackstone . . . [was] nearly the opposite.”[477]

Thomas Jefferson and Blackstone.

Thomas Jefferson’s disagreement with Blackstone began as early as 1776. After the Revolution, Jefferson demanded that the then-existing colonial Virginia laws be repealed and “adapted to our republican form of government.”[478] A compatriot suggested that they adopt Blackstone and purge “what was inapplicable, or unsuitable to us.”[479] But Jefferson disagreed because the end product would retain the “same chaos of law-lore from which we wished to be emancipated.”[480]

While Jefferson won that battle, he did not stem Blackstone’s acceptance in the young country. For years, “Jefferson derided the Commentaries as dangerous for its . . . over-simplified view of law.”[481] But more importantly, in Blackstone, Jefferson saw “a retreat from the ideals of the Revolution.”[482] By 1810, he lamented that young lawyers seemed to believe “that every thing which is necessary is in [Blackstone], [and] what is not in him is not necessary.”[483] A year later, he wrote that the country had been filled with “Blackstone lawyers . . . who render neither honor nor service to mankind.”[484] In 1812, he wrote that a student’s “indolence easily persuades him that if he understands that book, he is a master of the whole body of the law.”[485] In an 1814 letter, he said that the Commentaries had caused “the general defection of lawyers and judges from the free principles of government.”[486] That same year, he wrote that Blackstone was “making tories of those young Americans whose native feelings of independance do not place them above [Blackstone’s] wily sophistries.”[487]

 Jefferson did not fear the loss of liberty from force. But he feared “English books, English prejudices, English manners,” all of which undercut “the principles which severed us from England.”[488] Months before his death, he wrote to James Madison about plans for the appointment of a law professor at the University of Virginia, where he served as rector: “In selecting of our Law-Professor, we must be rigorously attentive to his political principles.”[489] Pointing to Sir Edward Coke, he said, “a sounder whig never wrote.”[490] But when

the honied . . . Blackstone became the Student’s Hornbook[,] from that moment that profession (the nursery of our Congress) began to slide into toryism, and nearly all the young brood of lawyers now are of that hue. They suppose themselves, to be whigs, because they no longer know what whiggism or republicanism means.[491]

Unsurprisingly then, Jefferson did not ascribe to Blackstone’s limited view of freedom of the press. Take first Jefferson’s transatlantic input on the Bill of Rights. Madison had, in June 1789, proposed to the House a list of amendments that would eventually become the Bill of Rights. One provided: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments . . . .”[492] After Madison sent a copy to Jefferson in France, Jefferson wrote back suggesting several modifications (in italic). One related to the freedom of the press:

I like it as far as it goes; but I should have been for going further. For instance the following alterations and additions would have pleased me. Art 4. “The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish any thing but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.[493]

Although Madison’s proposal was general in nature, Jefferson’s was a specific rejection of the common law of libel and Blackstone’s understanding of it. That specificity reveals Jefferson’s more liberal view of freedom of the press. While Blackstone limited liberty of the press to freedom from prior restraint alone, Jefferson would have gone further and protected true speech from punishment after publication—and he would have done so as early as the 1780s.

Jefferson’s fight against the Sedition Act of 1798 confirms his rejection of Blackstone’s views of freedom of the press. In drafting the Kentucky Resolutions, Jefferson argued that the Act was unconstitutional, even though it nominally provided truth as a defense, which was itself more liberal than Blackstone’s views and on its face consistent with Jefferson’s apparent view of the First Amendment. Controversy over the Act boiled down to whether Blackstone’s understanding of freedom of press should be accepted. Federalist supporters in Congress argued that the Act was not a prior restraint and, therefore, not an infringement on the liberty of the press under Blackstone. Jefferson’s supporters, however, disagreed, arguing that freedom of the press in the United States meant something more than Blackstone’s definition of it at common law.

For example, Nicholas, rising in opposition to the Act, argued, “it is a manifest abuse of Blackstone’s authority to apply it as it has been here applied [in defending the Act].”[494] As Nicholas said, “[i]t must be remarked, in [Blackstone’s defense], that the nature of their government justifies more rigor than is consistent with ours. . . . [H]is observations on this subject ought to be called a theory, and a theory adapted merely to his own country, and not a definition.”[495] But:

Very different are the circumstances in which his doctrine has been applied here. A restrictive clause of the Constitution of the United States [i.e., the First Amendment], by its application, is made to mean nothing, and when it is clearly the intention of the Constitution to put, at least, some acts of the press out of the control of Congress, by the authority of [Blackstone] all are subjected to their power.[496]

Democratic-Republicans like Nicholas lost that fight. They were outnumbered by their Federalist rivals in Congress who supported the Sedition Act in hopes of securing a second term for John Adams. Yet, after Jefferson won that election, the Act expired on its own terms in 1801, and Jefferson pardoned those convicted under it: “I considered & now consider, that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”[497] While the Supreme Court never had the opportunity to assess the Act’s constitutionality, it declared some 150 years later that “the attack upon its validity has carried the day in the court of history.”[498]

Recent scholarship has confirmed that the Court was exactly right on this point. In Criminal Dissent: Prosecutions under the Alien and Sedition Acts of 1798, Wendell Bird provides an exhaustive analysis of prosecutions under the Sedition Act.[499] According to Bird, the historical evidence does “not support the view, which is the dominant scholarly view . . . , that the founding generation uniformly believed the First Amendment’s protections of press and speech were narrow.”[500] The inescapability of Bird’s conclusion comes not from his persuasive force as a writer but rather the exhaustive evidence he gathers. The result of Bird’s toils in the archives is a definitive account of the life and death of the Sedition Act.

Criminal Dissent has largely put to bed any debate over whether Sullivan’s reliance on the Sedition Act and its demise was misguided and, more broadly, its identification of the central meaning of the First Amendment. In doing so, it has (or at least should be viewed as) displacing the Court’s preferred historical reference for the history of the First Amendment, Leonard Levy’s work, Legacy of Suppression: Freedom of Speech and Press in Early American History, which provides a molehill of evidence compared to Bird’s mountain.[501] This is to say nothing of Levy’s own mea culpa where he would, some twenty-five years after publication of Legacy of Suppression, dramatically revise that work to include new evidence. And, perhaps most telling, he would change the work’s title from Legacy of Suppression to Emergence of a Free Press, admitting “I no longer believe that history supports some of my original conclusions.”[502]  (Unfortunately, the Court or individual justices have relied on the former in at least nine cases[503] while citing the latter in just two.[504])

Bird’s work specifically debunks Levy’s conclusion (one clung to both in Legacy and in Emergence) that the First Amendment was “boldly stated if narrowly understood” by the Founding generation.[505] One of Bird’s chief contributions is establishing that historians have dramatically undercounted prosecutions under the Sedition Act. Although it is generally accepted that there were fourteen indictments under the Sedition Act, Bird’s meticulous research increases that number nearly four-fold to 51. But that number, too, hides the breadth of the assault: some of the indictments were issued against multiple defendants causing the “number of defendants [to] increase[] from 14 to 126.”[506] And it is through the stories behind these prosecutions that Bird shows us who thought what about the freedom of the press in the early United States. Namely, he demonstrates that the Blackstonian definition of freedom of the press was not the universally held understanding of that right or even the prevailing one. Instead, there was – unsurprisingly – a deep vein of republican thought animating early understandings of the scope of the First Amendment.

We see this in some of the stories behind these prosecutions and, most evidently, in what Bird demonstrates is the misunderstood history of the Virginia and Kentucky Resolutions. While Bird’s attack on this history is three-fold, the most powerful one is his counter to the widely accepted view that the Resolutions were “resoundingly rejected by all the other states.”[507] To be sure, eight states (Maryland, Delaware, Rhode Island, Massachusetts, New York, New Hampshire, and Connecticut) all rejected the Resolutions — some on the Resolutions’ merits, but others solely on the question of whether it was appropriate for a state to declare a law unconstitutional. Only four, Bird points out, contended that the Sedition Act was constitutional.

That left the other half of the states. Contrary to past research finding that the young Tennessee and Georgia simply ignored the Resolutions, Bird shows that Tennessee ordered its federal representatives to “use their best efforts” to “repeal” the Sedition Act.[508] Georgia took similar action. Other states’ bicameral legislatures split on what to do with the Resolutions. North Carolina’s “state house of commons passed resolutions characterizing the Alien and Sedition Acts as unconstitutional.”[509] Others, like New Jersey and Pennsylvania, also split. In light of the lack of agreement on what precisely the freedom of the press meant, it should not be shocking that the history of the Virginia and Kentucky Resolutions in opposition to the Sedition Act is, also, more complicated than commonly believed.

Justice Thomas dismisses the controversy over the Sedition Act, maintaining that “constitutional opposition to the Sedition Act—a federal law directly criminalizing criticism of the Government —does not necessarily support a constitutional actual-malice rule in all civil libel actions brought by public figures.”[510] But surely the pitched battle over the Act, the first true test of the country’s commitment to freedom of the press, must have something to say about whether Sullivan is defensible from a historical perspective or not—not least because it demonstrates an early departure from the English law of libel. Notably, Justice Thomas has not suggested that the constitutional opposition to the Sedition Act undercuts Sullivan. He could not have gone that far because nothing in the history of the Act disproves the rule adopted in Sullivan. As Bird concluded, the battle over the Act “left a number of victims across the nation,” but “ended in victory for freedoms of press and speech.”[511] One such victory was that it “spread belief in a broad understanding of . . . freedom[ of the press], while vividly demonstrating the dangers from a narrow understanding.”[512]

St. George Tucker and Blackstone.

By the time St. George Tucker, a Revolutionary War veteran and “the first modern American law professor,” received a letter from Jefferson in 1793, he was already annotating Blackstone for Americans.[513] Without time to devise his own text before his first class after his appointment to professor, he turned instead to repackaging the Commentaries “and occasionally to offer remarks upon such passages . . . either because the law had been confirmed, or changed, or repealed, by some constitutional or legislative act of the Federal Government, or,” in the case of his students, “of the commonwealth of Virginia.”[514]

In the end, Tucker’s American edition of the Commentaries was the first “uniquely American” analysis of them.[515] His 800 pages of annotations and 1,000 footnotes were not a memorial to Blackstone but “an engagement of it in combat.”[516] Tucker was “troubled not so much by the content of the Commentaries,” but “by its jurisprudence and political philosophy.”[517] The Revolution was “justified by the repudiation of two basic British tenets: first, the rejection of British views concerning the nature and locus of sovereignty; second, the rejection of the British Constitution as a near-perfect, or even a relatively good, embodiment of political philosophy.”[518] Although “Blackstone did not create . . . the British orthodoxy of the eighteenth century,” Tucker wrote, “he did embody” it.[519] An American Commentaries was thus vital because Americans had shed that orthodoxy through Revolution. The Colonies’ independence “produced a corresponding revolution not only in the principles of our government, but in the laws” — which, as a result, became “irreconcileable to the principles contained in the Commentaries.”[520]

The simplicity of the observation masks its persuasive force. Of course, the Commentaries established under one system of government should not control the meaning of a law under an entirely different kind of government. But this was exactly the battle Tucker had to wage. In his view, from the Revolution onward, the Commentaries became less important as the United States and the United Kingdom continued their divergence. Instead, they became only “a methodical guide, in delineating the general outlines of the law in the United States, or at most, in apprizing the student of whatthe law had been.”[521]

As to freedom of the press, Tucker wrote that, while the English had acquiesced to the mere absence of licensing laws as the defining characteristic of their freedom of the press, “the people of America have not thought proper to suffer the freedom of speech, and of the press to rest upon such an uncertain foundation, as the will and pleasure of the government.”[522] Those early Americans positively ratified a constitutional amendment protecting speech and the press. Rather than rely on the absence of laws infringing speech and press as in England, Americans declared that such laws are unconstitutional. That amendment stood, Tucker said, as a “barrier against the possible encroachments of the government.”[523] This principle could not have been more “strenuously asserted.”[524]

Writing of the Sedition Act, Tucker observed that the Act “excited more apprehension, and greater indignation in many parts of the U. States . . . than any other measure of the federal government.”[525] It was “supposed by many to amount to a most flagrant violation of the constitution.”[526] But, Tucker wrote, the Act’s “exposition of the liberty of the press, was only to be found in the theoretical writings of the commentators on the English government, where the liberty of the press rests upon no other ground, than that there is now no law which imposes any actual previous restraint upon the press.”[527]

The English government, however, was much different than that prevailing in the United States, and, as a result, claims about freedom of the press were necessarily different as well:

[I]n the United States, the great and essential rights of the people, are secured against legislative, as well as against executive ambition. They are secured, not by laws paramount to prerogative; but by constitutions paramount to laws. This security of athe freedom of the press requires, that it should be exempt, not only from previous restraint by the executive, as in Great-Britain; but from legislative restraint also; and this exemption, to be effectual, must be an exemption, not only from the previous inspection of licencers, but from the subsequent penalty of laws. . . .

[T]he practice in America must be entitled to much more respect: being in most instances founded upon the express declarations contained in the respective constitutions, or bill of rights of the confederated states. That even in those states where no such guarantee could be found, the press had always exerted a freedom in canvassing the merits, and measures of public men of every description, not confined to the limits of common law.[528]

Thus, Tucker’s writing shows us that early Americans believed there was a fundamental difference between freedom of the press in England and freedom of the press in the United States. The reason for the difference was clear and echoed early cases on the subject: the republican government established after the Revolution required a broader understanding of freedom of the press to make that government work. Without that latitude, it would be too easy for powerful political actors to weaponize libel law for political battles against opponents. But with it, public discussion about public affairs could occur without the overwhelming fear that participation in a republican government might end in criminal or civil liability.

James Wilson and Blackstone.

James Wilson was one of the few Founders who signed both the Declaration of Independence and the Constitution, and he had more of an effect on the latter than anyone but Madison.[529] Like Jefferson, he viewed Blackstone as a “great supporter” of “systematic despotism.”[530] Indeed, Wilson aspired to replace Blackstone and his Tory ideals and become his American equivalent.[531] He never succeeded. That distinction is more rightly Tucker’s. But in 1790, Wilson delivered a series of lectures much like Blackstone had before him.[532] For his first lecture, Wilson stood before students but also the “President of the United States, with his lady —also the Vice-President, and both houses of Congress.”[533]

Invoking Blackstone’s professorship at Oxford, Wilson posed a question: “Should the elements of a law education . . . be drawn entirely from another country—or should they be drawn, in part, at least, from the constitutions and governments and laws of the United States, and of the several States composing the Union?”[534] Put differently, should we be educating British lawyers or Americanones? He argued for the latter, for an education based on a government where “the supreme or sovereign power . . . resides in the citizens.”[535] Ever the revolutionary, he explained that this sovereignty was embodied in the “constitutions and governments and laws of the United States, and the republics, of which they are formed”—all of which were “materially different” and “materially better” than that in England.[536]

Blackstone’s view of the law of England, then, “deserves to be much admired; but []ought not to be implicitly followed” in the United States.[537] Blackstone, through no fault of his own, was an intellectual captive of the English theory of things—an un-American theory—and, thus, far from “a zealous friend of republicanism.”[538] The only experiment in republicanism from which Blackstone could draw was England’s disastrous one under Oliver Cromwell. So it made sense that Blackstone would “feel a degree of aversion, latent, yet strong, to a republican government.”[539] And having grown up under one government, it was not surprising that that government “might steal imperceptibly upon [Blackstone’s] mind” and influence him in thinking that a republic is “its rival, and . . . enemy.”[540]

Wilson took this view of Blackstone to the Supreme Court bench. In 1793, in Chisholm v. Georgia,[541] he wrote that Blackstone’s views on the unchecked power of the king were an “extensive principle, on which a plan of systematic despotism has been lately formed in England.” Blackstone, he said, was “if not the introducer, at least the great supporter” of this despotism.[542] Rejecting the “principle . . . that all human law must be prescribed by a superior,” Wilson said the law in the United States was much different: “[L]aws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require. The sovereign, when traced to his source, must be found in the man.”[543]

Still, it might be argued that Wilson essentially ratified Blackstone’s views on freedom of the press. In debates over the proposed constitution in the Pennsylvania convention, Wilson said:

I presume it was not in the view of the honorable gentleman to say there is no such thing as a libel, or that the writers of such ought not to be punished. The idea of the liberty of the press is not carried so far as this in any country. What is meant by the liberty of the press is, that there should be no antecedent restraint upon it . . ..[544]

We can excuse Wilson’s adoption of the Blackstonian definition of freedom of press, though. In the moment, he stood before opponents of the proposed constitution that was almost as much his as it was Madison’s. Those opponents pressed him on why the new proposal did not contain a protection for the liberty of the press, and Wilson needed to parry those attacks.

Within a few years after he secured support for his constitution, however, he rejected the central tenants of libel law according to the Star Chamber, as restated by Blackstone. The first, that libels against public officials are necessarily worse than other libels. The second, the same one challenged by Jefferson: that truth, like falsity, could also be punished as libel. In his Lectures on Law, Wilson indicted the Star Chamber for “wrest[ing] the law of libels to the purposes of [public] ministers.”[545] The first rule of law of the Star Chamber had been that “a libel against a magistrate, or other publick person, is a greater offence than one against a private man.”[546] But, Wilson said, “[t]his, in the unqualified manner here expressed, cannot be rationally admitted.”[547] Instead, in this country, “[o]ther circumstances being equal, that of office ought to incline the beam, if the libel refer to his official character or conduct.”[548]

The Other English Authorities.

In addition to Blackstone, Justice Thomas also invoked ancient authorities from England to support his view that the common law treated libels against public officials more severely than others. While this may have been true in medieval England, the flaw in Justice Thomas’s argument is that he failed to credit the very thing that he says matters: the state of the law in England at the time of the Founding. When we examine this authority at that time, we discover that even the English had distanced themselves from these medieval statutes. Contrary to Justice Thomas’s contention, these ancient statutes support an argument that, by the time of the Founding, no longer did the common law treat public official plaintiffs different from any other.

The chief authority for Justice Thomas’s representations on this point is tucked away in a footnote in his opinion in McKee. There, he wrote, “[i]n England, ‘[w]ords spoken in derogation of a peer, a judge, or other great officer of the realm’ were called scandalum magnatum and were ‘held to be still more heinous.’”[549] According to Justice Thomas, “such words could support a claim that ‘would not be actionable in the case of a common person.’”[550] Scandalum magnatum was“recognized by English statutes dating back to 1275,” but “had fallen into disuse by the 19th century and was not employed in the United States.”[551] Nonetheless, Justice Thomas maintained, “the action of scandalum magnatum confirms that the law of defamation historically did not impose a heightened burden on public figures as plaintiffs.”[552]

What is not found in that footnote is a recounting of scandalum magnatum’slong history, from its birth under Edward Longshanks to its eventual repeal. Scandalum magnatum is really three statutes—one from 1275 (more than 200 years before the arrival of the printing press in England), one from 1378, and one from 1388—all adopted centuries before the Glorious Revolution.[553] These statutes were set down during the reigns of kings either attempting to consolidate their power (Edward I) or trying desperately to maintain it (Richard II).[554] For example, the original statute read: “[N]one be so hardy to tell or publish any false news or tales, whereby discord, or occasion of discord, or slander, may grow between the king and his people or the great men of the realm.”[555]

Under the statutes, certain words that were otherwise not actionable as defamation at common law were subject to criminal prosecution if made against public officials like “prelates, dukes, earls, barons, and other nobles and great men of the realm.”[556] That is, the statutes protected the Crown from criticism by doling out punishment on its behalf, and “set the peerage apart from the rest of English society.”[557] While the statutes were meant to promote peaceful resolutions to disputes, they were nevertheless barbaric. Once Queen Elizabeth I, desiring that a critic be hanged, instead “had to be satisfied with having one of the man’s hands removed.”[558] Others would lose their ears.[559]

Up to this point, Justice Thomas is correct that scandalum magnatum did treat the peerage differently than private individuals; it applied only to the former, but not the latter. But that is only part of the story. Although the oldest of the statutes dates to 1275, they were rarely used early on. Despite the peerage’s desire to wield scandalum magnatum to protect their positions of power, “from the start the courts were determined to prevent the abuse of the law by peers.”[560] Criminal prosecutions were not often pursued, and the first recorded civil action did not take place until 1497.[561] But there was no rash of cases after that. Active enforcement of the statutes did not come to be for nearly another hundred years beginning in 1580 to the Restoration in 1660—and even then, the number of reported cases was a mere eighteen.[562]

True, after the Restoration, the peerage’s defensiveness in maintaining its privileges revived scandalum magnatum “as a reminder to their inferiors that the old order truly had been restored.”[563] But the peerage was too bold in their use of the statutes.[564] Courts began to recognize that the peerage used the “special protection they enjoyed from abusive language . . . [to] serve political as well as purely personal social ends.”[565] As England spun out of control politically from the exclusion crisis aimed at preventing the Catholic James, Duke of York, from taking the throne, so did actions under the statutes.[566] In response, the House of Commons in 1680 attempted to repeal them, although it is unclear if the motivation was in direct response to their abuse.[567] The Lords, however, rejected the attempt—not keen, apparently, on giving up their privileges.[568]

Around that time, the future King James II, then the Duke of York, wielded the statutes to suppress political opposition.[569] He filed no fewer than ten cases against his opponents for outlandish sums of money.[570] Sir Francis Drake, a defendant in one, thought it best to dispose of his estate and go by sea to another country, “thinking it better to have his liberty in a foreign country than be laid up in his own for £100,000.”[571] And while these cases were part of a spike in the abuse of the statutes, they were viewed as “reflect[ing] the growing political disorders which England experienced in the last ten years of the reign of Charles II,” rather than a doctrinal shift in the law.[572]

Thus, in the period before James II ascended to the throne in 1685, the statutes “were used much less frequently.”[573] James II’s reinvigorated invocation of them coupled scandalum magnatum “to the Stuart cause.”[574] In the end, scandalum magnatum “had become too closely identified with him to survive his downfall [during the Glorious Revolution] unchallenged.”[575] After he was deposed, the House of Commons sought to reverse judgments in two cases under the statutes in 1689 and 1690.[576]

And when King George I became King in 1714, “most peers were content to live without the protection of the statutes,” and the House of Lords offered to repeal scandalum magnatum altogether.[577] Even by 1703, “in the eyes of the law, a man’s . . . claim to knightly or noble status . . . was now less and less an acceptable criterion for determining whether he was entitled to damages.”[578] According to one historian, while a “thin stream of cases can be traced through the eighteenth century,” the last recorded litigation took place in 1773, three years before the Revolution and almost twenty years before the First Amendment would be ratified.[579]

Although Parliament would not formally repeal scandalum magnatum until 1887, it was, for all practical purposes, dead letter before the founding of this country.[580] Scholars have martialed a bevy of fatal descriptors: “now in a manner forgotten,”[581] “by lapse of time . . . become unnecessary,”[582] “obsolete,”[583] “long been obsolete,”[584] et cetera.[585] As one noted, “[t]hough they survived until 1887, the statutes of scandalum magnatum belong essentially to that age which accepted ‘degree, priority and place’ (to use Shakespeare’s phrase) as the unquestionable stamp of God’s creation.”[586]

In the early United States, to the extent they were remembered at all, the statutes were invoked as evidence of the Crown’s prior abuses and as repugnant to the new republican form of government created by the Founders. In that government, unlike that in which scandalum magnatum first became law, it was the People who were sovereign, not a king. Scandalum magnatum, after all, was adopted to protect the sovereign Crown from its subjects. It was meant to quash republican sentiment, not cultivate it. Scandalum magnatum then “ha[d] all the crudities of that savage era of monarchical autocracy in which it had its birth, still clinging to it.”[587] As one commentator explained, the statutes’“significance was in their anti-democratic tendencies.”[588]

Not surprisingly, therefore, scandalum magnatum was abandoned in early America. In Maryland, the “antient statutes . . . of scandalum magnatum” did not “extend[] to the province.”[589] In Virginia, a leading commentator in the 1830s wrote, “this offense is not recognized by our laws.”[590] Early courts were in agreement. In 1872, the Illinois Supreme Court explained that scandalum magnatum was “never recognized in this country.”[591] The North Carolina Supreme Court said in 1887: “[I]n this day and country there is no such thing as ‘scandalum magnatum . . . .’”[592] In 1890, the Massachusetts Supreme Judicial Court agreed, finding that the doctrine of scandalum magnatum “has never been adopted in Massachusetts.”[593] The Eighth Circuit put it best when it said that scandalum magnatum was “once the law,” but “[a] revolution intervened.”[594]

Even the treatises that Justice Thomas cites—Starkie and Newell—make clear that scandalum magnatum was not adopted in the States, in fact just the opposite.[595] Newell rejected the idea that public officials wee to be treated more leniently than private persons:

In practice a person holding a high office is regarded as a target at whom any person may let fly his poisonous words. High official position instead of affording immunity from slanderous and libelous charges, seems rather to be regarded as making his character free plunder for any one who desires to create a sensation by attacking it.[596]

Newell’s position was the same as Starkie’s before him: “In this country no distinction as to persons is recognized, and in practice, a person holding a high office is regarded as a target at whom any person may let fly his poisonous words.”[597]

In the end, as one early-twentieth-century law journal concluded, “the old common law offense of scandalum magnatum was left behind when our fathers planted the principles of civil liberty and equality.”[598] Scandalum magnatum had thus given way, in that journal’s estimation, “to the rule . . . that there can be no libel of the government or of government officials as such.”[599] And no longer was it any “greater wrong to falsely criticise the government than it is to speak evil of a private citizen.”[600] The law had long since rejected “Anglo-Saxon barbarism [that] affirmed the contrary and the old Tower of London [that] witnessed the suffering of men who dared to raise their voices against the king.”[601]

The freedom of the press that Justice Thomas references is not an originalist one; it is a monarchist’s one, predating the Founding and purporting to import into the First Amendment today common law rules long ago rejected by the Founders and early courts. Such an approach violates Justice Thomas’ stated view that what matters for the purposes of an originalist inquiry is the “founding era understanding.”[602] Indeed, it discounts the reality that there was a Revolution, and that no small complaint of that Revolution was England’s abuses of prosecutions of early American printers. It also ignores everything that happened between 1789 and 1868 when the Fourteenth Amendment made the First Amendment applicable as against the States.


At long last, we come back to Justice Thomas’ assertion in Berisha that the Court’s “pronouncement that the First Amendment requires public figures to establish actual malice bears ‘no relation to the text, history, or structure of the Constitution.’”[603] There is plenty one can say about Sullivan, the practical concerns raised by Justice Gorsuch in Berisha, the empirical reality of contemporary libel litigation, and whether the United States, as compared to other countries abroad, has gone too far in favor of press freedom. Each of those issues is addressed at length in this White Paper. But, as the historical review just ventured demonstrates, history does very little, if anything, to advance attacks on Sullivan.

On the contrary, history amply supports what the Court did in Sullivan. Far from being out of step with history, Sullivan is the obvious next step in what was then more than 150 years of tussling between libel and freedom of the press. Republicanism, freedom of the press, actual malice, the role of public officials and public figures – it is all in these dusty pages. It was all there long before L.B. Sullivan sued the New York Times.

In fact, what this review demonstrates is that much of how we understand “freedom of the press” today comes not from early First Amendment jurisprudence. Indeed, before the twentieth century there was very little such jurisprudence. Instead, what we know of freedom of the press today is owed to and informed by early debates about the scope of that freedom in early libel cases. The assault on Sullivan from a historical perspective is then quite strange. Those early libel cases – even way back when – were just as much about constitutional principles, about our commitment to freedom of the press, than they were about the common law.  In a way, the Court in Sullivan did not constitutionalize libel law; it recognized that libel law had always been part common law, part constitutional law.

* Matthew L. Schafer is Assistant General Counsel, Litigation, Paramount Global. He is also an adjunct professor of media law at Fordham University School of Law and the chair of the New York City Bar’s Media Law Committee.  The views expressed herein are his own.

[1] 376 U.S. 254 (1964).

[2] See, e.g., McKee v. Cosby, 139 S. Ct. 675 (2019); Horne v. WTVR, LLC, 139 S. Ct. 823 (2019); Cottrell v. Smith, 137 S. Ct. 648 (2017); Knight v. Chicago Trib. Co., 558 U.S. 817 (2009); Gray v. St. Martin’s Press, Inc., 531 U.S. 1075 (2001).

[3] 159 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari).

[4] See, e.g., Schulz, INSIGHT: Justice Thomas Takes Troubling Turn on Landmark Libel Decision, Bloomberg Law (Mar. 25, 2020); Smolla, Look to Bill Cosby case as proof that American defamation law needs a review, Delaware Online (Mar. 12, 2019).

[5] Liptak, Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling, N.Y. Times, Feb. 19, 2019.

[6] 141 S. Ct. 2424 (2021) (Thomas, J. dissenting from denial of certiorari).

[7] Id. at 2425. The author was counsel to Simon & Schuster Inc in Berisha.

[8] Id. at 2429 (Gorsuch, J., dissenting from denial of certiorari).

[9] Liptak, Two Justices Say Supreme Court Should Reconsider Landmark Libel Decision, N.Y. Times, July 2, 2021.

[10] Berisha, 141 S. Ct. at 2425 (quoting Tah v. Global Witness Publ’g, Inc., 991 F.3d 231, 251 (D.C. Cir. 2021) (Silberman, J., dissenting)).

[11] Sunstein, Falsehoods and the First Amendment (Harvard Law School),.

[12] Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. J. of L. & Liberty 44, 54-55 (2020).

[13] Lederman, Justice Thomas’s Attack on New York Times v. Sullivan: Old Originalism in New Originalist Garb, Balkinization, Feb. 23, 2019.

[14] Levine & Wermiel, What Would Justice Brennan Say to Justice Thomas?, 34 Comm. Lawyer 1 (2019).

[15] For treatment in specifics, see, e.g., Schafer, In Defense: New York Times v. Sullivan, 82 La. L. Rev. 81 (2021), from which much of this discussion is borrowed.

[16] Letter from Thomas Jefferson to John Tyler (June 17, 1812), in Founders Online, Nat’l Archives.

[17] Petition for Writ of Certiorari, McKee v. Cosby, 139 S. Ct. 675. (No. 17-1542).

[18] Id. at 5.

[19] Id. at 6.

[20] Id.

[21] Id. at i.

[22] Id. at 7-9.

[23] Waiver, McKee, 139 S. Ct. 675. (No. 17-1542).

[24] Brief of Respondent William H. Cosby, Jr., McKee, 139 S. Ct. 675. (No. 17-1542).

[25] Docket, McKee, 139 S. Ct. 675. (No. 17-1542).

[26] Id.

[27] See generally McKee, No. 17-1542, 139 S. Ct. 675.

[28] Id.

[29] Id.

[30] Id. at 675.

[31] Id. at 682.

[32] Id. at 678.

[33] Id. at 681.

[34] The entirety of the authority Justice Thomas provides in support of his arguments (in order of appearance) are: Folkard, Starkie on Slander and Libel (H. Wood ed., 4th Eng. ed. 1877); Blackstone, Commentaries: With Notes Of Reference, To The Constitution And Laws, Of The Federal Government Of The United States; And Of The Commonwealth Of Virginia (St. George Tucker ed., Philadelphia, Birch & Small 1803); Newell, Defamation, Libel and Slander in Civil and Criminal Cases as Administered in the Court of the United States of America 28 (1890); Beauharnais v. Illinois, 343 U.S. 250 (1952); Roth v. United States, 354 U.S. 476 (1957); Commonwealth v. Clap, 4 Mass. 163 (1808); White v. Nicholls, 3 How. 266 (1845); Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559 (2007); Dexter v. Spear, 7 F. Cas. 624 (No. 3,867) (CC RI 1825); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Near v. Minnesota, 283 US. 697 (1931); Schneider v. State (Town of Irvington), 308 U.S. 147 (1939); Chase, Note, Criticism of Public Officers and Candidates for Office, 23 Am. L. Rev. 346 (1889); Root v. King, 7 Cow. 613 (N. Y. 1827); Hamilton v. Eno, 81 N. Y. 116 (1880); Lewis v. Few, 5 Johns. 1 (N. Y. 1809); Royce v. Maloney, 58 Vt. 437 (1886); Wheaton v. Beecher, 66 Mich. 307 (1887); Prosser v. Callis, 117 Ind. 105 (1889); People v. Croswell, 3 Johns. Cas. 337 (N. Y. 1804); Commonwealth v. Blanding, 20 Mass. 304 (1825); Debates in the Several State Conventions on the Adoption of the Federal Constitution (J. Elliot ed. 1876) [hereinafter Elliot’s Debates].

[35] McKee, 139 S. Ct. at 678.

[36] Id. (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 765 (1985) (White, J., concurring in judgment)).

[37] Id.(citations omitted).

[38] Id. (citing 4 Blackstone *150).

[39] Id. (citing Beauharnais, 343 U.S. at 254-55).

[40] Id. at 679.

[41] Id. (citing Newell, supra note 34, at 533 (in turn, quoting Blackstone)).

[42] Id.

[43] Id. at 679-80 (quotation marks omitted).

[44] 315 U.S. 528 (1942).

[45] 283 U.S. 691 (1931).

[46] McKee, 139 S. Ct. at 680.

[47] Id. at 680 (quoting Chaplinsky,315 U.S. at 571-72).

[48] Id. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 386 (1974) (White, J., dissenting)); Sullivan, 376 U.S. at 268).

[49] Id.

[50] Id. (citing Gertz, 418 U.S. at 381; id. at 380-88 (White, J., dissenting)).

[51] Id. at 681 (citing generally Chase, supra note 34).

[52] Id. (citing Root, 7 Cow. at 628; White, 3 How. at 291; Hamilton, 81 N.Y. at 126; Lewis, 5 Johns 1; Royce, 58 Vt. at 447-48; Wheaton, 66 Mich. at 309-10; Prosser, 117 Ind. at 108-09).

[53] 343 U.S. 250, 254-55 (1952).

[54] McKee,139 S. 681 (citing Croswell, 3 Johns. Cas. at 377-78, 393-94; Clap, 4 Mass. at 169-70; Blanding, 20 Mass. at 311-14).

[55] Id. (citing Beauharnais, 343 U.S. at 293-94).

[56] Id.(citing Ch. 74, 1 Stat. 596 (1798); Sullivan, 376 U.S. at 273-77).

[57] Id. at 682.

[58] Id. (citing 4 Elliot’s Debates 573). “Seemed to contemplate” here is doing a lot of heavy lifting, as the portion quoted by Justice Thomas was from a question Madison was posing, not a declarative statement.

[59] Id.

[60] Id.

[61] Id. at 679 (citing Starkie, supra note 34, at 237-38).

[62] Id. (citing Starkie, supra note 34, at 242).

[63] Id. (citing Starkie, supra note 34, at 238, 242; White, 3 How. at 290).

[64] Id. at 681(citing Beauharnais, 343 U.S. at 254-55 & n.4).

[65] Id. at 682 (citing Garrison, 379 U.S. at 69).

[66] Id.

[67] See Special Report on Supreme Court Nominee Brett M. Kavanaugh, Reporters Comm. For Freedom of the Press (July 12, 2018); Special Report on Supreme Court Nominee Neil Gorsuch, Reporters Comm. for Freedom of the Press (Feb. 2, 2017).

[68] National Review, Inc. v. Mann, 140 S. Ct. 344, 346(2019) (Alito, J., dissenting from denial of certiorari).

[69] Id.

[70] Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Social Inquiry 197, 205 (1993) (reviewing Lewis, Make No Law: The Sullivan Case and the First Amendment (1991)).

[71] 205-06.

[72] Elena Kagan, Senator John Cornyn, Questions for the Record at 11.

[73] 141 S. Ct. 2424 (2021).

[74] Berisha v. Lawson, 973 F. 3d 1304 (11th Cir. 2020).

[75] Id. at 1308.

[76] Berisha v. Lawson, 378 F. Supp. 3d 1145, 1161 (S.D. Fla. 2018).

[77] Berisha, 973 F. 3d 1304.

[78] Petition for Writ of Certiorari, Berisha v. Lawson, 141 S. Ct. 2424 (No. 20-1063).

[79] Waiver, Berisha, 141 S. Ct. 2424 (No. 20-1063).

[80] 141 S. Ct. 2424 (2021).

[81] Id. at 2424 (Thomas, J., dissenting from denial of certiorari).

[82] Id. at 2425(quoting Tah v. Global Witness Publ’g, Inc., 991 F.3d 231, 251 (D.C. Cir. 2021)).

[83] Id.

[84] Id.

[85] Id.

[86] Id.

[87] Id. at 2425-26 (Gorsuch, J., dissenting from denial of certiorari).

[88] Id. at 2426.

[89] Id.

[90] Id. (quoting 4 Blackstone 151-52).

[91] Id. (quoting Dexter v. Spear, 7 F. Cas. 624 (No. 3,867) (CC RI 1825)).

[92] Id.

[93] Id. (quoting Gertz, 418 U. S. at 369–70 (1974) (White, J., dissenting)).

[94] Id. (citations omitted). Justice Gorsuch spent the bulk of his opinion cataloguing how different the world in 2021 is than that of 1964. See id. at 2427-29. This aspect of Justice Gorsuch’s analysis is explored in Chapters 2-4 infra.

[95] 141 S. 2430.

[96] Id.

[97] Levy, Freedom of Speech and Press in Early American History 224 (1960).

[98] Merin, infra note 125, at 377; see alsoBoyce, Originalism and the Fourteenth Amendment, 33 Wake Forest L. Rev. 909, 949 (1998) (“The ‘authoritative’ materials are silent: ‘Little can be drawn from the debates within the House on the meaning of the first amendment, nor are there any records of debates in the Senate or the states on its ratification.’” (citation omitted)).

[99] 418 U.S. 323, 383 (1974) (White, J., dissenting).

[100] Id.

[101] Wilson, Commentaries on the Constitution of the United States 55 (1792).

[102] 3 Wilson, The Works of the Honourable James Wilson L.L.D. 72-75 (1804).

[103] Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 856 (1995) (Scalia, J., concurring).

[104] 514 U.S. 334, 367 (1995) (Thomas, J., concurring).

[105] 517 U.S. 484, 522 (1996) (Thomas, J., concurring in part and concurring in judgment).

[106] Id. at 522 (citations omitted).

[107] 551 U.S. 393, 413–15 (2007) (Thomas, J., concurring).

[108] 141 S. Ct. 2038, 2054 n.14 (2021).

[109] Id. at 2054 n.14 (2021) (Alito, J., concurring).

[110] McIntyre,514 U.S. at 361–62 (Thomas, J., concurring).

[111] Id. at 361.

[112] Id. at 362.

[113] Id. at 367.

[114] McKee v. Cosby, 139 S. Ct. 675, 682 n.2 (2019).

[115] Rogers v. Grewal, 140 S. Ct. 1865 (2020) (Thomas, J., dissenting from denial of certiorari).

[116] Id. at 1869.

[117] Id. at 1871.

[118] The Federalist No. 84 (Hamilton).

[119] U.S. Const., amend. I.

[120] Cf.Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

[121] Rosenthal, First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech, 86 Ind. L.J. 1, 23 (2011).

[122] Posner, Reflections on Judging 233 (2013) (“[O]riginalism is fake.”).

[123] Chafee, Free Speech in the United States 32 (2d ed. 1967).

[124] Id.; see alsoOllman v. Evans, 750 F.2d 970, 996 (D.C. Cir. 1984) (en banc) (Bork, J., concurring).

[125] Merin, The Supreme Court and Libel, 11 Wm. & Mary L. Rev. 371, 373 (1969).

[126] Id.

[127] Id. at 374.

[128] Id.

[129] Id. at 376.

[130] Id.

[131] Dorf, Justice Thomas’s Faux-Originalist Critique of Overbreadth is Radically Underinclusive (and Wrongheaded in Other Ways Too), Dorf on L. (May 11, 2020), (first citing Texas v. Johnson, 491 U.S. 397 (1989); Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000); Citizens United v. FEC, 558 U.S. 310 (2010); Snyder v. Phelps, 562 U.S. 443 (2011)).

[132] Dorf, supra note 131.

[133] 139 S. Ct. at 679.

[134] Id. (marks and citation omitted).

[135] 141 S. Ct. at 2426.

[136] Newell, supra note 34, at 26.

[137] Id.

[138] Id. at 26-27.

[139] Id. at 27.

[140] Id.

[141] Id. at 28.

[142] Id.

[143] Buranelli, The Trial of Peter Zenger 131 (1957).

[144] Id. at 132.

[145] Newell, supra note 34, at 28.

[146] Schuyler, The Liberty of the Press in the American Colonies Before the Revolutionary War 50 (1905).

[147] Hudson, Journalism in the United States, From 1690-1872, at 82 (1873).

[148] Jones v. United States, 526 U.S. 227, 247-48 (1997) (quoting Levy, Freedom of Speech and Press in Early American History 133 (1963)).

[149] 514 U.S. at 361 (Thomas, J., concurring in judgment).

[150] Bird, The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox’s Libel Act 225 (2020).

[151] Id. at 227.

[152] Id. at 229.

[153] Id.

[154] Commonwealth v. Clap, 4 Mass. 163 (1808); People v. Croswell, 3 Johns. Cas. 337 (N.Y. Sup. Ct. 1804); Lewis v. Few, 5 Johns. 1 (N.Y. Sup. Ct. 1809).

[155] U.S. Const. art. IV, § 4.

[156] Clap, 4 169, quoted in McKee, 139 S. Ct. at 679.

[157] Id. at 163.

[158] Id. at 168.

[159] Id.; see alsoAmerican Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916).

[160] Clap, 4 Mass. at 168; see also Chafee, Freedom of Speech 19 (1920) (noting that one of the early conflicts in the United States surrounding the law of libel was “first, that the jury and not the judge ought to decide the libellous nature of the writing, and secondly, that the truth of the charge ought to prevent conviction”).

[161] Clap, 4 Mass. at 165.

[162] Id.

[163] Id.

[164] Id.

[165] Id.

[166] Id. at 167.

[167] Id.

[168] Id.

[169] Id. at 169.

[170] Id.

[171] Id.

[172] Id.

[173] Id. (emphasis added).

[174] Id. (emphasis added).

[175] Id.

[176] Duniway, The Development of Freedom of the Press in Massachusetts 152 (1906).

[177] Clap,4 169.

[178] Id.

[179] Id.

[180] People v. Croswell, 3 Johns. Cas. 337 (N.Y. 1804).

[181] Id. at 337.

[182] Id. at 339

[183] Id. at 342.

[184] Id.

[185] Id. at 338.

[186] Id.

[187] Id. at 344.

[188] Id.

[189] Id.

[190] Id. at 345.

[191] Id.

[192] Id.

[193] Id.

[194] Id. at 352 (emphasis added); see alsoSchofield, Freedom of the Press in the United States, 9 Proc. Am. Soc. Soc’y 67, 89 (1914) (“He professed that he found or discovered this definition in the English common law. But it was not there.”).

[195] Croswell, 3 Johns. 352-53.

[196] Id. at 356.

[197] Id. at 357.

[198] Id.

[199] Id. at 358.

[200] Id.

[201] Id.

[202] Id.

[203] Id.

[204] Id. at 360.

[205] Id. at 394-411 (Lewis, J.); id. at 411-13 (Livingston, J.).

[206] Id. at 363-94 (Kent, J.).

[207] Id. at 377.

[208] Id. at 364.

[209] Id.

[210] Id.

[211] Id. at 377-78.

[212] Id. at 379.

[213] Id. at 383.

[214] Id. at 379.

[215] Id.

[216] Id. at 385.

[217] Id. at 381.

[218] Id.

[219] Id. at 391.

[220] Id.

[221] Id. (emphasis added).

[222] Id.

[223] Id.

[224] Id. at 392.

[225] Id.

[226] Id.

[227] Id. at 392-93.

[228] Id. at 393-94.

[229] Hudson, supra note 147, at 753-57 (listing provisions of various state constitutions).

[230] Forkosch, Freedom of the Press: Croswell’s Case, 33 Fordham L. Rev. 415 (1965).

[231] Lewis v. Few, 5 Johns. Cas. 1 (N.Y. 1809).

[232] Id. at 4.

[233] Id. at 1.

[234] Id. at 13-14.

[235] Id.

[236] Id. at 14.

[237] Id.

[238] Id.  See Chap. 2, infra, at 86-87 n.29 (discussing master/servant analogy).

[239] Lewis, 5 Johns. 20.

[240] Id. at 20-21.

[241] Id. at 28-37.

[242] Id. at 35-36.

[243] Id. at 36.

[244] Id.

[245] Id.

[246] Id.

[247] Id. at 37.

[248] Id.

[249] Van Ness v. Pacard, 27 U.S. 137, 144 (1829).

[250] Id. (emphasis added).

[251] Schofeld, supra note 194, at 83.

[252] A further analysis of this commentary can be found in Matthew L. Schafer, Liberty, Libel, and the Legal Academy (forthcoming).

[253] Some of the most influential treatises included: Wartman, A Treatise Concerning Political Enquiry, and Liberty of the Press (1800); Tucker, Commentaries on the Laws of England (1803); Dane, An Abridgment and Digest of American Law (1823); Rawle, A View of the Constitution of the United States of America (1825); Kent, Commentaries on American Law (1826); Story, Commentaries on the Constitution of the United States (1833); Alden, The Science of Government in Connection with American Institutions (1866); Cooley, A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union (1868); Townsend, A Treatise on the Wrongs Called Slander and Libel (1868); Kent, Commentaries on American Law (O.W. Holmes, Jr. ed. 1873); Merrill, Newspaper Libel, a  Handbook for the Press (1988).

[254] McKee, 139 S. Ct. at 682.

[255] Cooley, supra note 253, at 420.

[256] Rawle, supra note 253, at 120 (defining freedom of the press as freedom from a “previous superintendency of the press”).

[257] Wortman, supra note 253, at 256 (Blackstone’s definition was “extremely imperfect” and “fallacious to the extreme”).

[258] Tucker, supra note 253, at 18 (liberty of the press as liberty from prior restraint is “only to be found in the theoretical writings of the commentators on the English government”).

[259] Kent, supra note 253, at 19 (present opinion was against “erecting barriers against any previous restraints,” but also “in favour of the policy that would diminish or destroy altogether every obstacle or responsibility in the way of the publication of truth.”).

[260] Story, supra note 253, at 731-32 (“the very circumstance, that, in the constitutions of several states, provision is made for giving the truth in evidence, in prosecutions for libels for official conduct, when the matter published is proper for public information, is exceedingly strong to show, how the general law is understood.”).

[261] Cooley, supra note 253, at 421 (“liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him”).

[262] Dane, supra note 253, at 51-52 (grappling with the right to publish the truth as compared to the Blackstonian definition).

[263] Alden, supra note 253, at 200-01 (same).

[264] Townshend, supra note 253, at 342-43 (same).

[265] Compare Merrill, supra note 253, at 1, 27 (Blackstonian definition) with id. at 209-21 (embracing common law privilege but not recognizing a constitutional dimension).

[266] Kent, supra note 253, at 19-20 (emphasis added).

[267] Townshend, supra note 253, at 343.

[268] Alden, supra note 253, at 200.

[269] Bird, The Revolution in Freedoms of Press and Speech 368 (2020).

[270] Rosenthal, supra note 121, at 26.

[271] Wortman, supra note 253, at 256-57.

[272] Id.

[273] 1 Tucker, supra note 253, at 29.

[274] People v. Croswell, 3 Johns. Cas. 337 (N.Y. 1804).

[275] Merrill, supra note 253, at 230.

[276] 1 Tucker, supra note 253, at 150 n.19. An earlier assessment of these same common law rules, as described by Lord Coke, was especially critical, observing that Coke borrowed heavily from the civil law even though he was “no great civil lawyer” and questioned importing those rules into the common law. Barrington, Observation upon the Statutes 68 (1767).

[277] Cooley, supra note 253, at 425; id. at 229 (“The English common-law rule which made libels on the constitution or the government indictable . . . seems to us unsuited to the condition and circumstances of the people of American, and therefore to have never been adopted in the several States.”).

[278] Id. at 425.

[279] Wortman, supra note 253, at 259.

[280] 1 Tucker, supra note 253, at 149 n.15.

[281] Kent, supra note 253, at 13.

[282] Cooley, supra note 253, at 418.

[283] Townshend, supra note 253, at 202; see also id. at 336-38 (discussing same).

[284] Cooley, supra note 253, at 431-32.

[285] Id. at 425.

[286] Id.

[287] 2 Holmes, supra note 253, at 22-23 n.1.

[288] Id.

[289] Merrill, supra note 253, at 213.

[290] Wortman, supra note 253, at 256.

[291] 1 Tucker, supra note 253, at 297.

[292] Kent, supra note 253, at 19.

[293] Story, supra note 253, at 422.

[294] Dane, supra note 253, at 51.

[295] Rawle, supra note 253, at 119.

[296] Id.

[297] 1 Tucker, supra note 253, at 16.

[298] Id.

[299] Knobell v. Fuller (1796) 170 Eng. Rep. 222, Append. 4, § xcii (UK).

[300] Id.

[301] Id.

[302] Id.

[303] Id.

[304] Id. at § xciii.

[305] Id.

[306] Id. at § xciii–xciv.

[307] Id. at § xciv.

[308] Id.

[309] Kennedy v. Gregory, 1 Binn. 85, 86 (Pa. 1803).

[310] Id.

[311] Id.

[312] Id.

[313] Id. at 87.

[314] Id. at 90.

[315] Id.

[316] 3 Mass. 546, 550 (1807).

[317] Id.

[318] Id.

[319] Id. at 553 (emphasis added).

[320] Buford v. McLuny, 10 S.C.L. (1 Nott & McC.) 268, 271 (1818) (“A person may prove, in mitigation of damages, such facts and circumstances as show a ground of suspicion, not amounting to actual proof of plaintiff’s guilt.”); see alsoRoot v. King, 7 Cow. 613, 636 (N.Y. Sup. Ct. 1827); Gilman v. Lowell, 8 Wend. 573, 583 (N.Y. Sup. Ct. 1832); Beehler v. Steever, 2 Whart. 313, 326 (Pa. 1837).

[321] Stow v. Converse, 4 Conn. 17, 25 (1821) (“ground of suspicion of their truth, may be proved in mitigation of damages”).

[322] Wilson v. Apple, 3 Ohio 270, 271 (1827).

[323] Sanders v. Johnson, 6 Blackf. 50, 54 (Ind. 1841).

[324] See Chap. 2, infra, at 86-87 n.29 (discussing master/servant analogy).

[325] Lewis v. Few, 5 Johns. 1, 35 (N.Y. Sup. Ct. 1809) (citing Weatherston v. Hawkins (1786) 99 Eng. Rep. 110 (KB)).

[326] Weatherston, 99 Eng. Rep. at 110.

[327] Id.

[328] Id.

[329] Id.

[330] Id. at 112.

[331] Id.

[332] 9 N.H. 34 (1837).

[333] Id. at 36.

[334] Id.

[335] Id. at 41 (emphasis added).

[336] Id. at 43.

[337] Id. (emphasis added).

[338] Id. at 41-42.

[339] Id. at 45-46 (emphasis added).

[340] For cases decided from 1837 to 1868, see, for example, Swan v. Tappan, 59 Mass. (5 Cush.) 104 (1849); Reynolds v. Tucker, 6 Ohio St. 516 (1856); Gassett v. Gilbert, 72 Mass. (6 Gray) 94 (1856).

[341] Palmer v. City of Concord, 48 N.H. 211, 216 (1868).

[342] Toogood v. Spyring (1834) 149 Eng. Rep. 1044 (KB).

[343] Express Printing Co. v. Copeland, 64 Tex. 354, 358 (1885).

[344] Id.

[345] Id.

[346] Id.

[347] Mott v. Dawson, 46 Iowa 533, 537 (1877) (county board supervisor) (“if the words were spoken . . . without malice, in good faith, believing them to be true, and having reasonable cause as a prudent, careful man to so believe . . . the defendant is not liable”); Shurtleff v. Stevens, 51 Vt. 501, 511-12 (1879) (clergyman) (adopting principle that, “[i]f fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society”); see also Marks v. Baker, 9 N.W. 678 (Minn. 1881) (city treasurer); Miner v. Post & Tribune Co., 13 N.W. 773 (Mich. 1882) (police justice); State v. Balch, 2 P. 609 (Kan. 1884) (candidate for county attorney); Kent v. Bongartz, 22 A. 1023 (R.I. 1885) (police officer); Briggs v. Garrett, 2 A. 513 (Pa. 1886) (judge); McNally v. Burleigh, 39 A. 285 (Me. 1897) (deputy sheriff); Boucher v. Clark Pub. Co., 84 N.W. 237 (S.D. 1900) (sheriff).

[348] Compare Sullivan, 376 U.S. at 283 n.21 with McKee, 139 S. Ct. at 683 (Thomas, J.) and Berisha, 141 S. Ct. at 2425 (Gorsuch, J.).

[349] 376 U.S. at 283(citing Coleman v. MacLennan, 98 P. 281 (Kan. 1908)).

[350] Coleman, 98 P. at 283.

[351] Id.

[352] Id.

[353] Id.

[354] Id.

[355] Id.

[356] Id.

[357] Id.

[358] Id.

[359] Id.

[360] Id.

[361] Id. at 284.

[362] Id.

[363] Id.

[364] Id.

[365] Id. at 285.

[366] Id.

[367] Id.

[368] Id. at 286.

[369] Id. at 287.

[370] Id. at 289.

[371] Id. at 290.

[372] Not all courts agreed. See Freedman, American Libel Law 1825-1896: A Qualified Privilege for Public Affairs?, 30 Chitty’s L.J. 113, 115 (1982) (“Cases were decided each way, and it is difficult to judge which view was more widely held.”).

[373] McKee, 139 S. Ct. at 679 (Thomas, J.); Berisha, 141 S. Ct. at 2424 (Gorsuch, J.).

[374] McKee, 139 S. Ct. at 679.

[375] Merrill, supra note 253, at 3.

[376] Id. at 208.

[377] Id.

[378] Berisha, 141 S. Ct. at 2426 (Gorsuch, J.).

[379] Merrill, supra note 253, at 210.

[380] Berisha, 141 S. Ct. at 2425 (Thomas, J.).

[381] 388 U.S. 160 (1967).

[382] Newell, supra note 34, at 564.

[383] Id. at 567.

[384] Id. at 572.

[385] Id. at 575.

[386] Id.

[387] Id. at 576–90.

[388] Id. at 583–84.

[389] Id. at 584.

[390] Id.

[391] 14 A. 51, 52 (Pa. 1888).

[392] Id.

[393] Id.

[394] Id. at 53.

[395] Id.

[396] Id. (emphasis added).

[397] Id.

[398] Id.

[399] Id.

[400] Id.

[401] Id.

[402] 10 F. 619, 619 (C.C.D. Mass. 1882).

[403] Id.

[404] Id. at 620.

[405] Id. at 620–21.

[406] Id. at 621.

[407] Id. at 622.

[408] Id.

[409] Id. (citing State v. Burnham, 9 N.H. 34 (1837); Commonwealth. v. Morris, 3 Va. (1 Va. Cas.) 176 (1811); Commonwealth v. Clap, 4 Mass. 163 (1808)).

[410] 11 Phila. Rep. 287 (1876).

[411] Id. at 290.

[412] Id. at 290–93.

[413] Id. at 292.

[414] Id. at 293.

[415] Id.

[416] Id.

[417] Id.

[418] 22 F. Cas. 689, 690 (C.C.N.D. Ill. 1867) (No. 13,118).

[419] Id. at 691.

[420] Id.

[421] See, e.g., Barr v. Moore, 87 Pa. 385 (1878); Shurtleff v. Stevens, 51 Vt. 501, 511 (1879); Bearce v. Bass, 34 A. 411 (1896).

[422] 139 S. Ct. at 678.

[423] Id.

[424] Id. at 678-80.

[425] Gertz, 418 U.S. at 381 n.14 (White, J., dissenting).

[426] Id.

[427] 141 S. Ct. at 2426.

[428] Id.

[429] 4 Tucker’s Blackstone, supra note 34, at *151.

[430] Madison, The Report of 1800 (1980).

[431] See Bird, Criminal Dissent: Prosecutions Under the Alien and Sedition Acts of 1798 (2020).

[432] 140 S. Ct. 2019, 2038 (2020) (Thomas, J., dissenting).

[433] Schlesinger, Prelude to Independence: The Newspaper War on Britain viii (1st ed. 1957).

[434] SeeParts II-III supra.

[435] People v. Croswell, 3 Johns. Cas. 337, 391 (N.Y. Sup. Ct. 1804).

[436] Letter from Thomas Jefferson to Horatio G. Spafford (Mar. 17, 1814), in Founders Online, Nat’l Archives.

[437] Unable to secure a professorship, Blackstone began informally lecturing students on the common law in 1753. Letter from William Blackstone to the Earl of Reading, 32 Harv. L. Rev. 974, 976 (1919).

[438] Skinner, Blackstone’s Support for the Militia, 44 Am. J. Legal Hist. 1, 1 (2000).

[439] Minot, The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries, 104 Va. L. Rev. 1359, 1371 (2018).

[440] Alschuler, Rediscovering Blackstone, 145 U. Pa. L. Rev. 1, 15 (1996); see also Bird, supra note 269, at 25-31 (marshalling evidence demonstrating that Blackstone had political and personal reasons to “manufacture” a definition of the liberty of the press at common law).

[441] Adams, A Dissertation on the Canon and the Feudal Law, No. 4, 21 (Oct. 1765).

[442] Adams, The Diary of John Adams (Dec. 1765).

[443] Id.

[444] Id.

[445] The Colonial Virginia Press and the Stamp Act: An Expansion of Civic Discourse, 38 J. Hist. 74, 83 (2012); see also Schlesinger, supra note 433, at viii.

[446] Alschuler, supra note 440, at 15.

[447] Orth, “Catch A Falling Star”: The Bluebook and Citing Blackstone’s Commentaries, 2020 U. Ill. L. Rev. Online 125, 126 (2020).

[448] 1 Blackstone, Commentaries *109.

[449] “From Benjamin Franklin to David Hall, 26 February 1766,” Founders Online, National Archives.

[450] 3 Blackstone, Commentaries *123.

[451] Id.

[452] Id. In addition, Blackstone recognized the Star Chamber doctrine of seditious libel.  Id. at 124 (“Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man.”).

[453] Id. at 125.

[454] Id.

[455] 4 Blackstone, Commentaries *150.

[456] Id.

[457] Id.; see id. at 151 (“in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the sole consideration of the law”).

[458] Id. at 151.

[459] Id.

[460] Id. Unfortunately, Blackstone did not define liberty of the press in his Analysis on the Laws of England, published first in 1756, which would have provided a pre-colonial crisis definition. See generallyBlackstone, An Analysis of the Laws of England (1756); see alsoCook, William Blackstone: A Life and Legacy Set Apart for God’s Work, 13 Regent U. L. Rev. 169, 174 (2000).

[461] Id.

[462] Bird, supra note 269, at 23.

[463] Id.

[464] Id. Mansfield would, however, later adopt Blackstone’s definition, likely for the same political reasons that Blackstone had manufactured the definition to begin with.

[465] Id. at 181.

[466] Id.

[467] Id. at 182.

[468] Repositories searched include Hathitrust’s digital library of more than 17 million digitized items, Founders Online, a database hosted by the National Archives that includes more than 120,000 digitized items, and, which includes digitized editions of 19,482 newspapers.

[469] To John Adams from William Cushing, 18 February 1789,” Founders Online, National Archives.

[470] Id. These arguments would be echoed years later during the crisis surrounding the Sedition Act by “Hortensius,” i.e., George Hay, a Virginian and federal judge. See, e.g., The Advertiser 2 (Feb. 11, 1799) (“If freedom of the press consists in an exemption from previous restraint, Congress may, without injury to the freedom of the press, punish with death any thing actually published, which a political inquisition may chuse to condemn.”).

[471] 8 The Debate and Proceedings in the Congress of the United States 2148 (1798-99).

[472] Id.

[473] Id. at 2160.

[474] Bird, supra note 269, at 8-9.

[475] Id. at 9.

[476] Id.

[477] Id.

[478] Jefferson, Ford & Zuckerman, Autobiography of Thomas Jefferson 1743–1790, at 66 (Ford ed. 1914).

[479] Letter from Thomas Jefferson to John Tyler (June 17, 1812), in Founders Online, Nat’l Archives.

[480] Id. (emphasis added).

[481] Minot, supra note 439, at 1366.

[482] Id. at 1397.

[483] Letter from Thomas Jefferson to John Tyler (May 26, 1810), in Founders Online, Nat’l Archives.

[484] Letter from Thomas Jefferson to William C. Rives (Sept. 18, 1811), in Founders Online Nat’l Archives.

[485] Letter from Thomas Jefferson to John Tyler (June 17, 1812), in Founders Online, Nat’l Archives.

[486] Letter from Thomas Jefferson to Thomas Cooper (Jan. 16, 1814), in Founders Online, Nat’l Archives.

[487] Letter from Thomas Jefferson to Horatio G. Spafford (Mar. 17, 1814), in Founders Online, Nat’; Archives.

[488] Id.

[489] Letter from Thomas Jefferson to James Madison (Feb. 17, 1826), in Founders Online, Nat’l Archives.

[490] Id.

[491] Id.

[492] James Madison, Speech in the House of Representatives (1789) (partial transcript).

[493] Letter from Thomas Jefferson to James Madison (Aug. 28, 1789), in Founders Online, Nat’l Archives, (second emphasis added).

[494] The Debates and Proceedings in the Congress of the United States 3009 (1851).

[495] Id.

[496] Id.

[497] Letter from Thomas Jefferson to Abigail Smith Adams (July 22, 1804), in Founders Online, Nat’l Archives.

[498] Sullivan, 376 U.S. at 276.

[499] See generally Bird, supra note 431.

[500] Id. at 367.

[501] Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (1960).

[502] Levy, Emergence of a Free Press vii (1985).

[503] See Braden v. United States, 365 U.S. 431, 443 (1961) (Black, J., dissenting); Sullivan, 376 U.S. at 273; Time, Inc. v. Hill, 385 U.S. 374, 410 n.10 (1967) (Harlan, J., concurring); Curtis Pub. Co. v. Butts, 388 U.S. 130, 149 (1967) (Harlan, J.); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 799 (1978) (Burger, C.J., concurring); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 341 (1979) (Rehnquist, J., dissenting); Gertz, 418 U.S. at 382  (White, J., dissenting); Chauffeurs, Teamsters & Helpers, Loc. No. 391 v. Terry, 494 U.S. 558, 580 (1990) (Brennan, J., concurring); Citizens United v. FEC, 558 U.S. 310, 432 (2010) (Stevens, J., concurring in part).

[504] See Ward v. Rock Against Racism, 491 U.S. 781, 808 (1989) (Marshall, J., dissenting); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 360 (1995) (Thomas, J., concurring in judgment).

[505] Levy, supra note 502, at 305.

[506] Bird, supra note 431, at 7.

[507] Id. at 154.

[508] Id.

[509] Id. at 174.

[510] McKee, 139 S. Ct. at 682 (Thomas, J.).

[511] Bird, supra note 431, at 359.

[512] Id.

[513] Hardy, Colloquy Essays: The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights, 103 Nw. U. L. Rev. 1527 (2009) (citing Klafter, St. George Tucker: The First Modern American Law Professor, 6 J. Hist. Soc. 133 (2006)); Alschuler, supra note 440, at 11.

[514] 1 Tucker’s Blackstone, supra note 34, at vi.

[515] Cover, Blackstone’s Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, 70 Colum. L. Rev. 1475, 1476 (1970).

[516] Id. at 1477.

[517] Id.

[518] Id. at 1477-78.

[519] Id. at 1478.

[520] 1 Tucker’s Blackstone, supra note 34, at iv-v (emphasis added).

[521] Id. at v.

[522] Id. at app. at 12.

[523] Id. at 13.

[524] Id.

[525] Id.

[526] Id.

[527] Id. at app. at 18.

[528] Id. at 20–21.

[529] Hall, Notes and Documents: James Wilson’s Law Lectures, 128 Penn. Mag. Hist. & Biography 63, 64 (2004).

[530] Chisholm v. Georgia, 2 U.S. 419, 458 (1793).

[531] Hall, Bibliographical Essay: The History of James Wilson’s Law Lectures, in Collected Works of James Wilson (Hall & Hall eds., 2007).

[532] 1 Wilson, The Works of James Wilson (Andres ed. 1896).

[533] Letter from John Adams to Charles Adams n.2 (Dec. 4, 1790), in Founders Online, Nat’l Archives.

[534] Wilson, supra note 532, at 13-14.

[535] Id. at 14.

[536] Id.

[537] Id. at 20.

[538] Id. at 19.

[539] Id.

[540] Id. at 20.

[541] 2 U.S. 419, 458 (1793).

[542] Id.

[543] Id.

[544] 2 Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, As Recommended by the General Convention at Philadelphia in 1787, at 449 (2d ed. 1901).

[545] 3 Wilson, The Works of the Honourable James Wilson 73 (1804).

[546] Id.

[547] Id.

[548] Id. at 73–74 (emphasis added).

[549] 139 S. Ct. at 682 n.2 (Thomas, J.).

[550] Id.

[551] Id.

[552] Id.

[553] Evans, A Collection of Statutes Connected with the General Administration of the Law 201–02 (1836).

[554] Folkard, supra note 34, at 218.

[555] Id. (emphasis not included).

[556] Id.

[557] Holmes v. Holmes, 64 Ill. 294, 296 (1872); see Lassiter, Defamation of the Peers: The Rise and Decline of the Action for Scandalum Magnatum, 22 Am. J. Legal Hist. 216, 216 (1978).

[558] Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 Stan. L. Rev. 661, 671 (1984).

[559] Scott, Publishing False News, 30 Can. B. Rev. 37 (1952).

[560] Lassiter, supra note 557, at 218.

[561] Id.

[562] Id. at 219–20.

[563] Id. at 223–24.

[564] Id. at 225.

[565] Id.

[566] Id. at 226.

[567] Id.

[568] Id.

[569] Id. at 229.

[570] Id.

[571] Id.

[572] Id. at 225.

[573] Id. at 230.

[574] Id.

[575] Id.

[576] Id.

[577] Id. at 232–33.

[578] Id. at 234 (“‘the nobility preferr[ed] to waive their privileges in any action of slander, and to stand upon the same footing, with respect to civil remedies, as their fellow-subjects.’” (quoting 1 Russell, A Treatise on Crimes and Misdemeanors 326 (1824)).

[579] Lassiter, supra note 557,at 233, 235.

[580] Statute Law Revision Act 1887, 50 & 51 Vict. c. 59 (Eng.); Odgers, The Law of Libel and Slander 74 (5th ed. 1912).

[581] 3 Stephen, New Commentaries on the Laws of England 474 (1844).

[582] Riddell, Scandalum Magnatum in Upper Canada, 4 J. Crim. L. & Criminology 12, 14 (1914).

[583] Odgers, supra note 580,at 74; see alsoAdams, A Judicial Glossary 603 (1886) (noting that the statutes were “now obsolete”).

[584] See Holdsworth, A History of English Law 410 (3d ed. 1922).

[585] Holt, The Law of Libel 178 (1818); see alsoMence, The Law of Libel 84 (1824).

[586] Lassiter, supra note 557, at 235.

[587] Robbins, Note, The Action of the Government Against the New York World as a Revival of the Offense of Scandalum Magnatum, 68 Cent. L.J. 135, 135-36 (1909).

[588] Lisby, No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence, 9 Comm. L. & Pol’y 433, 446 (2004).

[589] Kilty, A Report of All Such English Statutes As Existed at the Time of the First Emigration of the People of Maryland 4-5 (1811).

[590] 2 Tucker’s Blackstone, supra note 34, at 58.

[591] Holmes v. Holmes, 64 Ill. 294, 296 (1872).

[592] Reeves v. Winn, 1 S.E. 448, 450 (N.C. 1887).

[593] Sillars v. Collier, 23 N.E. 723, 724 (Mass. 1890).

[594] Casey v. City of Cabool, Mo., 12 F.3d 799, 802 (8th Cir. 1993).

[595] McKee, 139 S. Ct. at 682 n.2 (Thomas, J.); see, e.g., Kilty, supra note 589, at 45; 2 Tucker’s Blackstone, supra note 34.

[596] Newell, supra note 34, at 201.

[597] Folkard, supra note 34, at 217 n.1.

[598] Robbins, supra note 587, at 136.

[599] Id.

[600] Id.

[601] Id.

[602] Rogers v. Grewal,140 S. Ct. 1865, 1871 (2020) (Thomas, J., dissenting from denial of certiorari).

[603] Berisha, 141 S. Ct. at 2425 (Thomas, J.) (quoting Tah v. Global Witness Publ’g, Inc., 991 F.3d 231, 251 (D.C. Cir. 2021) (Silberman, J., dissenting)).

Matthew L. Schafer is Assistant General Counsel, Litigation, Paramount Global. He is also an adjunct professor of media law at Fordham University School of Law and the chair of the New York City Bar’s Media Law Committee.  The views expressed herein are his own.