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.