From Judge Lagoa's concurrence in Friday's Dershowitz v. CNN, Inc. (and see also Judge Charles Wilson's concurrence taking the opposite view):
In New York Times, Inc. v. Sullivan, the Court usurped control over [the] field of speech-related torts and invented "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Three years later, this same rule was extended to "public figures" in addition to public officials…. [In 1974,] the Court held for the first time that falsity and harm were not enough, and even private plaintiffs must show some sort of "fault," negligence at the least, to recover for defamation. And, even with that proof of culpable fault, damages were not presumed but had to be proven … [and] no plaintiff could recover punitive damages for defamation without showing Sullivan-style malice. With this series of cases … one generation of the Supreme Court succeeded in imposing federal constitutional limitations (seemingly untethered to the Constitution's original meaning) on all defamation claims brought by all manner of plaintiffs.
Justice White recognized the ill-fated trajectory of this line of cases after originally joining the majority in Sullivan…. Justice White elaborated on the central problem in Sullivan: A people who govern themselves, as the Founders intended us to do, are entitled to adequate information about their government and their representatives, and that essential flow of information warrants First Amendment protection; but protecting lies—by insulating those who spread them behind an iron barrier, to be breached only by a showing of actual malice—does nothing to support an informed populus and, instead, has the contrary effect of leaving lies uncorrected. … "Also, by leaving the lie uncorrected, the New York Times rule plainly leaves the public official without a remedy for the damage to his reputation. Yet the Court has observed that the individual's right to the protection of his own good name is a basic consideration of our constitutional system, reflecting our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty."
As the Court concluded in Gertz v. Robert Welch, Inc., "there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in 'uninhibited, robust, and wide-open' debate on public issues." But that is precisely Sullivan's effect. Under the actual-malice standard, the public's "only chance of being accurately informed is measured by the public [figure's] ability himself to counter the lie, unaided by the courts. That is a decidedly weak reed to depend on for the vindication of First Amendment interests." … "While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not 'hot' news, and rarely receive the prominence of the original story."
Quite the journey we have taken from Sullivan's attempt to protect the public's interest in being fully informed on matters of public import. But that, in fact, precisely identifies the error at the heart of Sullivan: In "federaliz[ing] major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States," the Court "made little effort to ground [its] holdings in the original meaning of the Constitution." …
