Stone Disagrees with Scalia about New York Times Co. v. Sullivan

Justice Scalia, Originalism and the First Amendment
Geoffrey R. Stone
The Huffington Post
October 13, 2011

In a recent conversation at the Aspen Institute's 2011 Washington D.C.'s Ideas Forum, Justice Antonin Scalia offered some interesting observations about his theory of originalism and the meaning of the First Amendment.

During the course of the conversation, Justice Scalia apparently brought up the Supreme Court's landmark 1964 decision in New York Times v. Sullivan. The situation in Sullivan was fairly straightforward. L.B. Sullivan, a Commissioner of Montgomery, Alabama, brought a civil libel action against several black clergymen and the New York Times because a fundraising ad run by the clergymen in the Times allegedly made several inaccurate statements in its description of a civil rights protest in Montgomery. The statements, if inaccurate, did not name Sullivan specifically and were relatively trivial in context. Although Sullivan could not prove that he had suffered any actual pecuniary damages as a result of the publication, the all-white Alabama jury awarded him damages of $500,000 (remember, this is in 1964).

When the case worked its way up to the Supreme Court of the United States, the Court unanimously held that it violated the First Amendment for the state to hold the New York Times and the clergymen liable. The Court held that even if the statements were factually inaccurate, it is unconstitutional to hold the speakers liable unless they acted with either knowledge of falsity or reckless disregard for the truth. Although conceding that false statements of fact do not themselves have any constitutional value, the Court recognized that to hold speakers liable for inadvertent false statements would seriously "chill" the willingness of citizens to engage in robust public debate. The general reaction to the decision in New York Times v. Sullivan at the time was captured by two seminal First Amendment thinkers -- Alexander Meiklejohn and Harry Kalven -- who proclaimed it an "occasion for dancing in the streets."

Faculty: 
Geoffrey R. Stone