Below is the abstract for “New York Times v. Sullivan Transformed American Defamation Law From Thumper’s Rule to Incented Obloquy,” available for download on SSRN.

This essay will add my voice to the chorus criticizing the New York Times actual malice standard as a fundamentally flawed and unnecessary rule that has had untoward unintended consequences for our public discourse. My focus will be on the New York Times decision’s fundamental shift in defamation law away from the presumption that publishers ought to be responsible for their harmful words (Thumper’s Rule) when those words turn out to be false and substituting instead a presumption that a publisher can publish whatever defamation it likes without responsibility unless the victim can prove that the publisher subjectively doubted whether the statement were true. After this brief Introduction, section II will summarize the status of defamation law before 1964. Then section III will review the Supreme Court’s extreme makeover of defamation law before concluding briefly in section IV.


Louis W. Hensler III

Regent University School of Law

Louis Hensler joined the faculty of Regent University School of Law in 1998. After graduating from the University of Chicago Law School in 1988, Hensler clerked for the Honorable J.L. Edmondson on the United States Court of Appeals for the Eleventh Circuit. Between this clerkship and coming to Regent, Hensler practiced as a litigation associate with the Pittsburgh office of Jones, Day, Reavis & Pogue, where he worked on cases in a variety of fields including product liability, securities class action, employee benefits, contracts and intellectual property. Hensler's scholarly interests focus on his teaching fields of Torts, Evidence, and Christian Foundations of Law.


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