The actual malice doctrine was an unjustified innovation, a departure from an older, simpler, and more wholesome constitutional tradition.
New York Times v. Sullivan (1964) deserves a prominent place on the long list of modern Supreme Court decisions that ought to be overturned. It was, like so many rulings of the Warren Court, an instance of improper judicial activism, a meddling in the nation’s political life not required by the traditional and original understanding of the Constitution. Moreover, its doctrine is a source of ongoing, significant harm to our self-governing, rights-based republic.
Recently, Supreme Court justices Clarence Thomas and Neil Gorsuch have acknowledged the constitutional infirmity and baleful consequences of the New York Times ruling. Their colleagues should pluck up their courage, join with Thomas and Gorsuch, and correct this harmful error at the first suitable opportunity.
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