Nebraska professor critiques New York Times v. Sullivan

Carson Holloway, the Ralph Wardle Diamond Professor of Arts and Sciences and Professor of Political Science at the University of Nebraska, re-examined the “actual malice” standard for libel cases in a lecture titled “New York Times v. Sullivan and the Original Meaning of the First Amendment: Rethinking Libel and Freedom of the Press.” 

The Center for Citizenship and Constitutional Government hosted Holloway for the event on March 27. Holloway argued that the landmark New York Times v. Sullivan Supreme Court decision, which established the “actual malice” standard for libel cases involving public figures, is not rooted in the original public meaning of the First Amendment.

In his lecture, Holloway explained that the “actual malice” standard—the requirement that public officials demonstrate the publisher knew the statements were false or acted with reckless disregard for the truth—is a “novelty in American constitutional law” that the Founders would not have recognized. 

“The specifics of the Actual Malice Doctrine are just not in the thinking of Founders,” he stated. “They never suggest that you have to demonstrate actual malice to prevail if the thing that’s been published about you is actually admittedly defamation and false.”

To support this view, Holloway cited influential legal thinkers from the time of the Founding, including William Blackstone, James Wilson, and Joseph Story. He argued that they adhered to the notion that there exists “a distinction between liberty and license of the press and that libel is outside the scope and therefore not in need of and not properly understood as being protected.”

Holloway also critiqued what he called Justice William J. Brennan’s “spurious originalism” in the Sullivan opinion. Brennan argued that the controversy over the Sedition Act of 1798 showed that even false, defamatory statements are protected by the First Amendment. In Brennan’s telling, the fact that “titanic figures like Jefferson and Madison” condemned the act as unconstitutional, despite its authors’ attempts to expand free speech protections, proved this point.

Holloway, however, claimed that Brennan selectively used historical evidence to reach a desired conclusion: “Brennan’s reliance on the Sedition Act controversy is kind of tendentious, because he cited some evidence, but not other evidence.”

For instance, Holloway noted that Brennan ignored arguments from esteemed Federalists and jurists contemporaneous with the law such as Hamilton, Adams, and Supreme Court Justice James Iredell, who all believed the act was constitutional. He contended that if the court wanted to rely on the Founding-era record, “They would have to grapple with the fact that although Jefferson and Madison thought it was unconstitutional,” many others firmly disagreed.

Finally, Holloway made a philosophical case that reputation should be understood as a natural right on par with life, liberty and property. Quoting Blackstone, he said reputation is a right “to which every man is entitled by reason and natural justice, since without these, it is impossible to have a perfect enjoyment of any other advantage or right.” He believes the Sullivan case has obscured this Founding-era understanding by pitting freedom of the press against mere “reputational interests.”

In Holloway’s view, if courts returned to the original meaning, it would likely mean public figures could more easily sue for libel. But he maintained such a reevaluation is warranted given the Founders’ conviction that “human beings have a natural right to reputation … something worthy of the law’s protection.”

Senior Abraham Figueroa told the Rover: “I thought Professor Holloway’s lecture was very insightful. I agree with his position, and I hope the lecture will enable the next generation of legal scholars to relook at the Court’s free speech jurisprudence.”

Others who attended Holloway’s lecture agreed with Figueroa’s positive response. Senior Aimee Morrissey said, “I found Professor Holloway’s argument compelling and appreciated his attention to historical detail through the lecture. His discussion of the historical bases for the right to reputation was particularly fascinating.”

Alongside the Notre Dame American Constitution Society of Notre Dame Law School, the CCCG will host Professor Steven Vladek of the University of Texas School of Law for its next event on April 15. Vladek will present a lecture about his bestselling book, The Shadow Docket: How SCOTUS Uses Stealth Rulings to Amass Power and Undermine the Republic.

Holloway’s lecture is available for viewing on the CCCG’s YouTube channel.

PJ Butler is a senior studying political science and theology. He is a top customer at the Mishawaka Whole Foods location, where he frequently purchases ice cream, carrots, and large quantities of orange juice. To reach him, email

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Photo Credit: Center for Citizenship and Constitutional Government