While New York Times Co. v. Sullivan is a foundational, well-regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution—including libel of public figures and public officials. This Essay connects Justice Thomas’s calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. While Bruen involved a Second Amendment challenge to a law restricting the concealed carry of handguns, the Court’s “historical tradition” approach to constitutional rights—which is premised on proof of historic restrictions on certain behavior—is readily adaptable to the First Amendment context. Justice Thomas’s arguments for the existence of historical restrictions and penalties for libeling public figures and officials are tailor-made for the historical tradition approach he sets forth in Bruen. While Sullivan is a longstanding precedent, the Court’s recent overruling of Roe v. Wade suggests that this does not guarantee its safety. But other Justices may balk at taking a truly originalist or historical approach to the First Amendment, as this could undo most existing First Amendment doctrine. Still, at least one federal appellate judge has already cited Bruen in support of restructuring First Amendment law. As time goes on and Bruen’s historical tradition approach continues to be applied, Justice Thomas or others could use it to support the growing judicial campaign against New York Times Co. v. Sullivan.
Michael L. Smith and Alexander S. Hiland
Using Bruen to Overturn New York Times v. Sullivan,
2022 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol2022/iss1/4